News / Resources

Topics covered in this issue of the Health Law Update include:

• America’s Healthy Future Act of 2009: Revenue Provisions and Other Tax Changes
• CMS Issues Final Rule Limiting Overpayment Recoupment
• Provena’s Denial of Exemption Case Heard at Illinois Supreme Court
• New Jersey AG Claims to Find Tony Soprano’s Nonprofit Board
• Penalty Flags—A Loss of a Down for Employers to Think About
• Ohio S.B. 119: Ohio Senator Seeks to Mandate Reporting of Suspected Drug Dispensing Errors and to Criminalize Failures to Report
• Houston Healthcare Team Members Named to Super Lawyers
• Events Calendar

AMERICA’S HEALTHY FUTURE ACT OF 2009: REVENUE PROVISIONS AND OTHER TAX CHANGES

As discussed in the September 17, 2009, issue of the Health Law Update, the Chairman’s Mark of the America’s Healthy Future Act of 2009 (Mark) was released by the Senate Finance Committee on September 16, 2009. While not an actual bill, the Mark summarizes the provisions of the proposed Senate Finance Committee’s healthcare legislation. On September 22, 2009, the Committee released its initial “Modifications” to the Mark and also began its markup of the proposed legislation which continues this week. While the last Health Law Update highlighted many of the Mark’s significant proposed changes, this issue is meant to summarize in more detail only the revenue-raising provisions proposed to help fund the many healthcare reform measures and other provisions that propose to use federal taxes as a direct means to reform healthcare.

Please note that this legislation still is being reviewed by the Senate Finance Committee and likely is to be revised further. These changes will be addressed in a future issue of the Health Law Update.

Revenue Raisers (Original Mark)

This legislation is projected to cost about $774 billion over the next ten years. While the specific revenue-raising provisions in Title VI of the Mark are projected to raise about $350 billion by 2019, the remainder of the legislation’s cost is expected to be funded through various Medicare and Medicaid reforms. (For example, Medicare fraud and abuse is projected to cost about $70 billion each year, and this legislation includes provisions aimed at curbing such fraud and abuse, thereby saving billions each year.) This issue does not attempt to summarize all of these Medicare/Medicaid cost-cutting reforms, but instead concentrates only on the “new” revenue sources included in Title VI of the Mark, which are summarized as follows:

Excise Tax on High Cost Insurance
A 35 percent excise tax would be imposed on the value of each employee’s “employer-sponsored health coverage” that exceeds a threshold amount (generally $8,000 for individuals and $21,000 for families). Such tax would be imposed on the issuers of the health insurance. Employer-sponsored health coverage generally would include an employee’s typical major medical, dental, and vision coverage, but also would include other fairly new types of insurance such as flexible spending accounts (FSAs) and health savings accounts (HSAs). The employer would be required to calculate the value in excess of the threshold for each employee and then allocate such excess (subject to the excise tax) to each of the employee’s insurers. The employer also now would be required to report the value of each employee’s health insurance on Form W-2. Penalties would apply for reporting failures. This tax would apply to all tax years beginning after December 31, 2012, and would be the principal revenue-raiser of this legislation, projected to raise almost $215 billion by 2019. (This tax appears, in many ways, to be a replacement for the proposed surcharge on high-income individuals included in the house reform bill (H.R. 3200).)

Change in Definition of Medical Expenses
The definition of “medical expenses” in the context of what qualifies for tax-free reimbursements through health reimbursement arrangements and FSAs and also tax-free distributions through HSAs and Archer medical savings accounts would be revised to include expenses for drugs only if the drug is either (1) a prescription drug, (2) insulin, or (3) doctor-prescribed over-the-counter medicine. (This amendment effectively would eliminate the tax-free benefits associated with these arrangements for the purchase of non-doctor-prescribed over-the-counter drugs.) This change would apply to expenses incurred after December 31, 2009, and is similar to a provision added to H.R. 3200 by Chairman Charles Rangel (D-N.Y.) of the Ways and Means Committee.

Increased Penalty (Non-Qualified HSA Distributions)
The penalty for distributions from HSAs that are not made for “qualified medical expenses” is increased from 10 percent to 20 percent of the disbursed amount. This penalty would begin to apply to distributions made in tax years after December 31, 2009.

Limitation on FSA Salary Reductions
Elective salary reductions under a cafeteria plan for purposes of coverage under a Health FSA would be limited to $2,000/year. This limitation would take effect for taxable years beginning after December 31, 2012.

Increased Information Reporting for Payments to Corporations
Persons who make payments to corporations of $600/year or more in exchange for either property or services now would be required to file an information return with both the IRS and the corporation itself with the goal of increasing disclosure of potentially taxable payments. This increased reporting would be effective for payments made in taxable years beginning after December 31, 2011.

New Requirements for 501(c)(3) Hospital Organizations
New requirements would be placed on all section 501(3) organizations that operate a “hospital facility.” Specifically, each such facility would be required to conduct a community health needs assessment at least once every three years and adopt an implementation strategy to meet the community needs identified through such assessment. Each hospital would be required to disclose in its annual Form 990 the manner in which it is addressing the needs identified in the assessment and, if all identified needs are not addressed, the reasons why. A $50,000 penalty would be assessed on each nonprofit hospital that fails to complete the required community needs assessment in an applicable three-year period, and if the hospital fails to accurately report on its annual information return, the existing penalty for an incomplete tax return would apply. In addition to the community health needs assessment, each hospital would be required to (1) adopt, implement and widely publicize a financial assistance policy; (2) bill patients who qualify for financial assistance no more than the amount generally charged to insured patients; and (3) abide by new laws with respect to collection procedures. These new requirements would take effect for tax years beginning after the date of the legislation’s enactment.

Annual Fees
Beginning in 2010, the Mark would impose an annual fee, allocated by market share, on the following healthcare sectors:

• Pharmaceutical manufacturing companies—$2.3 billion
• Medical device manufacturers—$4 billion
• Health insurance—$6 billion
• Clinical laboratories (except for small businesses)—$750 million

Elimination of Deduction for Federal Prescription Drug Subsidies
Sponsors of qualified retiree prescription drug plans that receive tax-free subsidy payments from the Secretary of the U.S. Department Health and Human Services now would be prohibited from deducting the costs reimbursed by such subsidy for federal income tax purposes. This tax deduction would be eliminated for tax years beginning after December 31, 2010.

Revenue Raisers (Modified Mark)

The following changes were made to the original Mark’s revenue raisers on September 22, 2009:

Excise Tax on High Cost Insurance
The excise tax would be increased to 40 percent. The threshold amounts for both retired individuals over age 55 and employees engaged in a “high risk profession” (“high risk professions” would include such professions as law enforcement officers, firefighters and individuals engaged in construction (among others)) would be increased by $750 for individuals and $2,000 for families. All threshold amounts now would be indexed to the CPI-U + 1 percent beginning in 2014. This modification is expected to reduce the projected revenue raised through 2019 by about $10 billion.

Limitation on FSA Salary Reductions
Elective salary reductions under a cafeteria plan for purposes of coverage under a Health FSA would be limited to $2,500/year (rather than the $2,000 provided in the original Mark). The effective date for this provision also would be changed from December 31, 2010, to December 31, 2012.

Increased Penalty (Non-Qualified HSA Distributions)
The effective date of this provision would be changed to apply to distributions made in tax years beginning after December 31, 2010 (rather than 2009).

Annual Fees
The aggregate fee for the clinical laboratories sector would be eliminated, but the aggregate fee for the health insurance sector would be increased to $6.7 billion from $6 billion.

Limitation on Itemized Deduction for Medical Expenses (NEW)
This provision would increase the threshold for deducting medical expenses on Schedule A so that such expenses now would have to exceed 10 percent of a taxpayer’s adjusted gross income (AGI) rather than only 7.5 percent in order to be deducted. This change would take effect for taxable years beginning after December 31, 2012.

Exclusion of Certain Indian Tribe Health Benefits from Gross Income (NEW)
Certain health benefits, medical care services and accident or health plan coverage received by members of Indian tribes now would be specifically excluded from the member’s gross income. This provision would be effective for benefits provided after the date of the legislation’s enactment.

Other Tax Provisions (Original Mark)

Individual Responsibility
Individuals who do not maintain certain minimal health insurance coverage would be subject to an additional excise tax. The excise tax would be $750/year for taxpayers with “modified adjusted gross income” between 100-300 percent Federal Poverty Level (FPL) and $950/year for those above 300 percent FPL. (“Modified adjusted gross income” is generally defined as AGI, plus tax-exempt income, plus income of the taxpayer’s dependents.) New information returns would be required to be filed by providers of healthcare in order to properly determine who would be subject to this new tax. Exemptions would be allowed for (1) individuals below 100 percent FPL (below 133 percent FPL beginning in 2013), (2) individuals whose lowest cost option is still greater than 10 percent of their AGI, (3) individuals with sincere religious objections, (4) de minimis lapses in coverage, and (5) other hardship situations. This tax would go into effect on January 1, 2013. (H.R. 3200 contained a similar provision with one of the main differences being that its additional tax was a percentage tax rather than a flat tax.)

Employer Responsibility
Unlike H.R. 3200, the Mark does not require employers to provide health insurance coverage to its employees. However, if an employer (1) chooses not to offer health insurance coverage, (2) has more than 50 full-time employees, and (3) employs at least one person who receives a health insurance affordability tax credit (discussed later herein) for health insurance purchased from a state exchange, it would be required to pay an additional fee. This fee generally would equal the product of the average health insurance tax credit given out by the state exchanges and the number of the employer’s employees receiving tax credits. (The total annual fee could not exceed $400 X the total number of employees of the employer.) This additional tax would take effect on January 1, 2013. (As mentioned, H.R. 3200 was written so that employers were required to provide health insurance coverage in order to avoid an additional eight percent payroll tax on their employees’ wages. The Senate Mark appears much more lenient.)

Individual Tax Credits (Health Care Affordability Tax Credits)
The Mark provides for sliding scale tax credits for individuals and families (who are U.S. citizens and legal residents) between 134-300 percent FPL in 2013 (and between 100-300 percent FPL beginning in 2014). The refundable tax credit would be based on the percentage of income the cost of the premium represents, rising from 3 percent of income for those at 100 percent FPL to 13 percent of income for those at 300 percent FPL. Individuals between 300-400 percent FPL would be eligible for a credit based on capping an individual’s share of the premium at 13 percent of income.

Small Business Tax Credits
Employers with average annual full-time wages of $20,000 or less and ten or less full-time employees would be eligible for a tax credit up to 35 percent of their contributions to their employees’ healthcare premiums for the years 2011 and 2012. For years after 2012, the employer would be eligible for a tax credit of up to 50 percent of its contributions, but only for the first two years in which it purchases its health insurance coverage through its state exchange. (The credits would be available at a reduced rate for employers with average annual full-time wages between $20,000 and $40,000 and employers with between 10 and 25 full-time employees.) The credit would be part of the general business tax credit. (The provision in H.R. 3200 for small business healthcare tax credits was very similar to this provision.)

Other Tax Provisions (Modified Mark)

The following changes were made to the original Mark’s other tax provisions on September 22, 2009:

Individual Responsibility
The effective date for this provision would be moved back six months to July 1, 2013.

Employer Responsibility
The effective date for this provision also would be changed to July 1, 2013.

Individual Tax Credits (Health Care Affordability Tax Credits)
The Modified Mark revises the amount of the sliding scale tax credit so that it now would be based on the percentage of income the cost of the premium represents, rising from 2 percent of income for those at 100 percent FPL to 12 percent of income for those at 300 percent FPL. Individuals between 300-400 percent FPL now would be eligible for a credit based on capping an individual’s share of the premium at 12 percent of income.

Small Business Tax Credits
This credit would be available to 501(c)(3) organizations as a credit against payroll taxes. However, unlike for other small businesses, the credit would be limited to 25 percent of employer contributions for 2011-2012 and 35 percent of employer contributions for years after 2012.

If you have any questions on how these currently proposed tax changes could affect you or your business, please contact Christina Novotny, or 216.861.7295, or your regular Baker Hostetler contact.

CMS ISSUES FINAL RULE LIMITING OVERPAYMENT RECOUPMENT

On September 16, 2009, the Centers for Medicare & Medicaid Services (CMS) issued a final rule implementing section 935 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) which provides for payment of interest to a provider whose overpayment is reversed on appeal and limits CMS’s ability to recoup certain overpayments during earlier stages of the appeals process. CMS published the proposed rule almost three years earlier on September 22, 2006, and issued Transmittal 141 that same month.

Providers have 120 days in which to timely file a first level appeal. However, the final rule provides that Medicare contractors can begin recoupment no earlier than 41 days from the date of the initial overpayment demand. Similarly, although providers have 180 days in which to timely file a second level appeal, recoupment can be initiated or resumed on the 60th calendar day after the date of the redetermination decision unless a valid request for reconsideration is filed. At both levels, if a request for redetermination or reconsideration is timely filed, CMS must stop recoupment. Despite these protections at the lower stages of the appeals process, recoupment may either commence or continue following a Qualified Independent Contractors’ (QIC) decision that upholds, in full or in part, an overpayment determination. Therefore, CMS has the ability to recoup alleged overpayments despite the appeal progressing through the Administrative Law Judge, Medicare Appeals Council or federal court levels of the appeal process.

Finally, under the final rule, if an overpayment determination is overturned in an administrative or judicial appeal above the QIC level of appeal, CMS is liable for interest on recouped overpayments. Before the passage of the MMA, CMS stated that it was “liable for interest charges if it did not pay within 30 days of an underpayment determination.” CMS anticipates the costs in implementing this final rule to be from $1 to $10 million per year in additional interest payments.

The final rule takes effect November 16, 2009.

For more information, please contact B. Scott McBride, or 713.646.1390, Robert M. Wolin, or 713.646.1327, or Ameena Ashfaq, or 713.646.1329.

PROVENA’S DENIAL OF EXEMPTION CASE HEARD AT ILLINOIS SUPREME COURT

States more and more frequently are seeking to revoke ad valorem tax exemptions for hospitals that fail to provide sufficient charitable care. For example, the Illinois Department of Revenue ruled in 2006 that Provena Covenant Medical Center failed to prove that it provided enough free medical care to the needy to qualify for a tax exemption and revoked its ad valorem tax exemption. Initially, the Illinois Circuit Court of Sangamon County reversed the Illinois Department of Revenue decision and restored the ad valorem exemption. The Illinois 4th District Appellate Court, on appeal, ruled that Provena was not entitled to its tax exemption. For a discussion of this decision, see the September 4, 2008, issue of the Health Law Update. After the appellate court’s adverse decision, Provena appealed to the Illinois Supreme Court.

In the recent oral argument involving the denial of Provena’s ad valorem tax exemption, the Illinois Attorney General’s office argued that a hospital that provides less than one percent of its revenues on charity care does not deserve a property tax exemption. The attorney general argued that it doesn’t matter whether the organization itself is of a charitable nature, rather what matters is whether it is using the property it is seeking to exempt for a charitable purpose during the applicable tax year. The attorney general would not specify how much charity care a hospital must provide. “All the court needs to do is decide that 0.7 percent of revenue and only 302 people is not” sufficient to warrant an exemption from property taxes.

Provena argued that the legislature, not the court, should decide whether there should be a minimum acceptable level of charity care and what it should be. The Illinois legislature has not established a minimum level of charitable care that must be provided by an exempt hospital. The state of Illinois has no clear definition of how much charity care must be provided, nor is there any clear statement of what is included within the definition of charity care. Provena also argued that a nonprofit’s community benefit is broader than simply the provision of free care.

While the Provena case has not yet reached its destination, the state’s objective may have been served in large part because Provena and other Illinois nonprofit hospitals have expanded their charity care guidelines to provide more uncompensated care. In addition, health reform efforts may overtake state efforts to determine minimum charitable care levels.

We will be monitoring this case and will report on any developments in subsequent Health Law Updates.

For more information, please contact Robert M. Wolin, or 713.646.1327.

NEW JERSEY AG CLAIMS TO FIND TONY SOPRANO’S NONPROFIT BOARD

New Jersey Attorney General Anne Milgram recently sued the trustees of the Stevens Institute of Technology (Stevens Institute) and several of its officers, accusing the nonprofit, in what appears to be a reprise of the Allegheny Health, Education, and Research Foundation (AHERF) story, of misusing donor money and excessively compensating its president. The AHERF lawsuits alleged that funds from restricted AHERF accounts were used for improper purposes, including covering AHERF’s operating losses instead of their original charitable purposes.

The attorney general is seeking the removal of the Stevens Institute board president and chairman and the appointment of a monitor to oversee the organization’s finances. The attorney general has alleged that the board and officers breached their fiduciary duties by adopting a growth plan to “aggressively expand and modify, among other things, [the nonprofit’s] research activities, curricula, student body, faculty, program and infrastructure.” The breaches, according to the attorney general, included:

• Misappropriating restricted funds to fund Stevens Institute’s operating budget and for other purposes in violation of the donors’ restrictions;
• Collateralizing endowment assets without board approval and in violation of donor imposed restrictions;
• Excessively borrowing from Stevens Institute’s endowment and imprudently appropriating gifts;
• Engaging in “grossly-negligent, imprudent and ultra vires transactions that often violated donors or the board’s spending restrictions”;
• The administration’s expenditure of endowment fund investment gains above the board’s approved spending rate, without board approval, after the board declared the funds quasi-endowment funds that could not be spent without board approval;
• The administration’s spending of endowment funds at rates (7.3 percent to 9.94 percent) in excess of that approved by the board (5.2 percent to 5.4 percent). The attorney general contended the spending rate must “preserve the endowment’s value for future beneficiaries, while satisfying current obligations”;
• Misrepresenting facts to the board regarding Stevens Institute’s spending and borrowing practices and financial management;
• Individual trustees, board committees and administrators failing to provide key financial information and inform the board of committee actions, including executive committee actions, and administration’s actions. One former trustee told the attorney general that the “Board of Trustees is a Mushroom patch and always has been”;
• Employing grossly negligent internal controls and accounting practices;
• Failure of the board to perform its oversight functions;
• Failing to properly monitor and diversify endowment funds, resulting in excessive amounts of illiquid alternative investments in violation of the board’s investment asset allocation plan;
• Excessively compensating the president and failing to obtain executive compensation comparability analyses;
• Providing ultra vires loans to the president; and
• Administration’s excessive borrowing under the organization’s lines of credit, which the attorney general characterized as long-term debt, without board approval.

Stevens Institute claimed that the attorney general was wildly overreaching her authority. Seeking to pre-empt any damage to it’s reputation, Stevens Institute filed its own lawsuit against the attorney general, accusing her of overstepping her authority by threatening legal action against Stevens Institute if it did not dramatically change its board and administration practices. Stevens Institute unsuccessfully sought to keep the proceeding under seal.

This case is part of a trend that bears watching by nonprofit directors and officers, especially in light of the New York Attorney General’s April 6, 2009, action against Ezra Merkin in connection with his self-dealing and breach of fiduciary duties on the Yeshiva University Board in connection with Bernard Madoff investments.

• Officers and directors should keep the following guideposts in mind when investing nonprofit organization funds:
• Each investment and its risks should be well understood and, where necessary, internal or external experts should be consulted;
• All material information reasonably available and relevant to making a decision to act or not act with respect to an investment should be reviewed;
• The investment decision-making process should be well structured and implemented pursuant to a documented well-thought-out investment plan and strategy;
• Investment decisions should be made with reasonable care, skill and caution in a timely manner;
• Responsibility for investment decisions should be assigned clearly to specific individuals;
• Each investment must be consistent with (1) the organization’s ability to sustain a loss; (2) the organization’s temporal funding needs; (3) donor instructions and the organization’s governing documents; and (4) what a reasonable person would do, when considered in the context of the organization’s overall diversified portfolio of investments;
• Sufficient resources must be provided for the administration of the organization’s investment program, provided that investment costs must be reasonable in relation to the organization’s investments and the financial skills available within the organization;
• Investments should be monitored routinely for suitability, diversification and performance;
• Delegations of investment authority also should be monitored routinely for appropriateness;
• Robust conflict of interest polices and procedures should be in place to address personal, financial and professional conflicts of interest; and
• Organizations should consider establishing an investment committee composed of individuals with strong backgrounds in accounting, financial analysis, asset and liability management and/or investment strategy.

For more information, please contact Robert M. Wolin, or 713.646.1327.

PENALTY FLAGS—A LOSS OF A DOWN FOR EMPLOYERS TO THINK ABOUT

Recently, the National Football League Players Association’s (NFLPA) Director of Human Resources (Moran) filed suit against the NFLPA for wrongful termination, claiming she was terminated based in part on her instigation of and participation in an investigation by the Department of Labor (DOL) of whether activities of certain NFLPA representatives violated federal law.

After Moran’s attorney sent a letter detailing her claims against the union, she was denied all access to her email, her telephone and the building. Moran alleged that these actions, together with earlier harassment, constituted constructive discharge in violation of federal criminal law that prohibits obstructing or impeding a federal proceeding or investigation. The DOL’s Office of Inspector General (OIG) conducts investigations in labor-management relations and internal union affairs to determine whether there may be violations of federal labor laws.

Moran (and others) informed the DOL that the president of the NFLPA conducted unauthorized and secret meetings with the NFL owners and provided them with confidential information before negotiations of a new collective bargaining agreement. It was alleged that this conduct was a breach of fiduciary duty to union players and violated federal laws that prohibit collusion between union and management representatives. Additionally, it was alleged that the president received favors and other things of value from the NFL teams’ owners and managers which were not reported as required under the Labor-Management Reporting and Disclosure Act (LMRDA).

Finally, Moran accused the president of using his position with the union to obtain (and misappropriate) confidential personal information about the players and the players’ agents that was maintained in the NFLPA database and shared it with another person to use to solicit clients for their financial services company. This was alleged to be a violation of fiduciary duty to union members and a violation of the Computer Fraud and Abuse Act.

After Moran and others provided information to the DOL, a new executive director was selected. The new executive director directed that when the DOL was to interview one of the employee informers, a NFLPA attorney would be present.

What To Think About

• Interference with a federal DOL investigation, as with most federal investigations, carries the risk of criminal penalties. Most importantly, employees involved in whistleblower activities have special rights under federal and state laws. Before taking adverse employment actions against any such employee (whether their charges are meritorious or not), employers should tread carefully and be fully advised by counsel regarding the employee’s rights.
• Employers must be careful in dealing with union officials representing their employees. Solid professional relationships with union representatives are fine, but sometimes employers may cross the line. Gifts and other things of value never should be provided to union representatives. Employers also should make sure that the union officials with whom they are meeting are authorized representatives of the union and members. Disclosure of the meeting discussions is not necessary but the meeting itself (and the participants in the meeting) should not be kept secret. Employers always should deal with union representatives at arms length so as to avoid allegations of collusion.
• Employers also should be aware to protect and not misuse confidential information that may be obtained from their workforces. In this complaint, the unauthorized access of financial information was alleged to be a violation of the Computer Fraud and Abuse Act which covers (among other acts) knowing access to a protected computer without authorization (or in excess of authorized access) with intent to defraud and obtain anything of value. In addition, there are a plethora of other state and federal privacy laws governing the protection and disclosure of personal information collected by employers.
• When an investigation is being conducted by a federal or state agency and an employee is being interviewed, and an employee may be testifying to outside agencies regarding the employer’s potential violations of law, the employer generally may not insist on having its attorney present. This could be considered intimidation. However, an employer can request that the employee allow the employer’s counsel to be present.

For more information, please contact Terry Connerton, or 202.861.1613.

OHIO S.B. 119: OHIO SENATOR SEEKS TO MANDATE REPORTING OF SUSPECTED DRUG DISPENSING ERRORS AND TO CRIMINALIZE FAILURES TO REPORT

Ohio Sen. Timothy Grendell, sponsor of Ohio’s pharmacy technician requirement nationally known as “Emily’s Law,” introduced a bill that, if enacted, will change drastically the reporting of drug errors to and subsequent investigation process by Ohio Board of Pharmacy (Board). Ohio Senate Bill 119 requires any pharmacist, pharmacy intern or qualified technician who “possesses information reasonably suggesting that an error was made in dispensing” a prescription drug to report such suspected error to the Board. Failure to report would constitute, not merely an ethical violation subject to the disciplinary procedures of the Board, but a crime. Such crime would be punishable by a fine up to $250 and imprisonment of up to 30 days, with three or more convictions in a six-month period resulting in increased penalties of up to $1,000 in fines and imprisonment of up to 180 days. Further, the reporting pharmacist, pharmacy intern or technician would be required to retain, and make available to the Board upon request, all documents, labels, vials, supplies, substances and any internal investigative materials related to the suspected error, and the Board would be required to investigate all reports made.

In addition to criminalizing failure to report suspected errors, the sheer volume of reports that would be generated by S.B. 119 each year is alarming. Nothing in S.B. 119 defines or limits in any way what constitutes a dispensing “error” subject to mandatory reporting to and investigation by the Board. Therefore, reportable “error” could consist of anything from dispensing the wrong drug or wrong dose, to dispensing too many or too few pills. S.B. 119 is opposed strongly by both the Ohio Society of Health System Pharmacists and the Ohio Pharmacists Association. The bill has been assigned to the Ohio Senate Health, Human Services, and Aging Committee, but has yet to be scheduled for hearing.

For more information, please contact Emily E. Williams, or 216.861.7373.

HOUSTON HEALTHCARE TEAM MEMBERS NAMED TO SUPER LAWYERS

Houston Healthcare Team members Susan Feigin Harris and Donna S. Clark have been named to the 2009 “Texas Super Lawyers” list and are included in both Texas Super Lawyers magazine and Texas Monthly magazine. In addition, Harris and Clark are listed among the “Top 50 Women Texas Super Lawyers” who had the highest point totals in the 2009 evaluation process.

This is the second time in 2009 that members of the Baker Hostetler Houston Healthcare Team have been named in a “Super Lawyers” listing; earlier this year, fellow team members B. Scott McBride and Gregory N. Etzel were named as “Texas Super Lawyers Rising Stars.”

“Super Lawyers” is a comprehensive and diverse listing of outstanding attorneys representing a wide range of practice areas, firm sizes and geographic locations. Each year, the well-known Law & Politics publication undertakes a rigorous multi-phase selection process for the “Super Lawyers” list—including a statewide survey of lawyers, independent evaluation of candidates by attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check. Only the top five percent of lawyers in the state are named to the “Super Lawyers” list.

EVENTS CALENDAR

October 12

Houston partner Scott McBride will present “The Torture RAC: Managing Overpayment Issues and Disputes” at the Texas Health Law Conference sponsored by the State Bar of Texas and Texas Hospital Association in Austin, Texas.

October 13

Houston partner Donna Clark will speak on “Fraud and Abuse and Stark Law Update” at the Texas Health Law Conference sponsored by State Bar of Texas and Texas Hospital Association in Austin, Texas.

Baker & Hostetler LLP publications are intended to inform our clients and other friends of the Firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience. © 2009 Baker & Hostetler LLP