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Pepper Hamilton, L.L.P.

Coalition Scores Dramatic Success in Battle Over Erosion of Attorney-Client Privilege
Efforts by a national coalition of business and legal groups to halt the erosion of attorney-client and work-product protections by government policies have produced dramatic success. The coalition lobbied Congress and others to stop the coercion of businesses under government investigation to waive these protections in hope of receiving more lenient treatment.

On April 5, 2006, the U.S. Sentencing Commission deleted language in the U.S. Sentencing Guidelines providing for more lenient treatment at sentencing of businesses that cooperated with the government by waiving attorney-client and work-product protections. This amendment will become effective November 1, 2006, unless Congress acts to change it.

The national coalition has seized on its success before the Sentencing Commission by pressing for similar changes in Department of Justice (DOJ) policies regarding coerced waivers. Currently, DOJ policy contained in the 2003 “Thompson Memorandum” (Memo) provides guidelines for determining when to prosecute a business for possible wrongdoing. The Memo directs prosecutors to consider whether the business waived these protections and fully disclosed to prosecutors privileged or protected information or materials relating to the allegations.

On March 7, 2006, a U.S. House of Representatives Judiciary Subcommittee held a hearing regarding these waiver policies and the provisions of the Memo. A hearing before the U.S. Senate Judiciary Committee on these waiver issues also is expected.

In the meantime, the Southern District of New York case of United States v. Stein is being watched closely by those interested in the continued vitality of related Memo provisions. In Stein, U.S. District Judge Lewis A. Kaplan held hearings in May as to whether, under provisions of the Memo, the government coerced KPMG into threatening to stop paying legal defense fees for KPMG employees and partners who would not cooperate with the government’s criminal investigation into allegedly illegal tax shelters. A decision in Stein is expected shortly. With the Thompson Memorandum facing a rising tide of scrutiny from Congress and criticism by the coalition, a ruling in Stein adverse to the government could prompt DOJ to make major revisions in the Memo regarding both waiver and corporate indemnification of legal defense fees.

07-12-2006

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Pepper Hamilton, L.L.P.

CMS Releases Interim Report to Congress on Specialty Hospitals
As part of the Deficit Reduction Act (DRA), passed in February 2006, the Department of Health and Human Services (HHS) is required to develop a “strategic and implementing plan” regarding physician investment in specialty hospitals that addresses the following issues:

whether physician investments in specialty hospitals are proportional to their investment returns
whether such physician investment in a specialty hospital is a “bona fide investment”
annual disclosure of investment information
the provision by specialty hospitals of charity care and care to Medicaid enrollees
appropriate enforcement.
Additionally, the DRA must include recommendations for legislative and administrative action. The report is due to Congress on August 8, 2006.

HHS defines specialty hospitals as hospitals that are primarily or exclusively engaged in the treatment of patients with a cardiac condition, the treatment of patients with an orthopedic condition or patients receiving a surgical procedure.

While the plan is under development, Congress has required the Centers for Medicare and Medicaid Services (CMS) to continue its suspension on the enrollment of new specialty hospitals in the Medicare program, which was set to expire on February 15, 2006. The suspension began in June 2005 after the expiration of the federal moratorium on payments to certain specialty hospitals for services rendered to Medicare beneficiaries as a result of a referral from a physician who had an investment interest in the hospital. The suspension will remain in effect until HHS’ final report is submitted to Congress or six months after the DRA’s enactment, whichever is earlier. If HHS fails to complete the report within the required six months, the suspension will be extended for an additional two months.

CMS released its Interim Report to Congress on May 9, 2006, and on May 17, CMS Administrator Mark McClellan testified to the Senate Finance Committee regarding specialty hospitals. In addition to addressing the issues outlined by the DRA, CMS discussed steps that it has taken to respond to recommendations and concerns contained in earlier reports on specialty hospitals generated by HHS and the Medicare Payment Advisory Commission (MedPAC), including:

proposed payment reforms for inpatient hospital reimbursement
reform payments to Ambulatory Surgical Centers (ASCs)
Emergency Medical Treatment and Labor Act (EMTALA) obligations
hospital definitions.
Proposed Payment Reforms for Inpatient Hospital Reimbursement

CMS has taken steps to revise the hospital Inpatient Prospective Payment System (IPPS) for nine cardiovascular diagnosis-related groups ( DRGs) to better recognize severity of illness. The fiscal year 2007 IPPS proposed rule includes two additional payment reforms: the proposed payment changes would not only assign weights to DRGs based on estimated hospital costs rather than on reported charges, but also reconfigure DRGs to reflect not only the patient’s diagnosis but also the severity of the illness.

CMS hopes this change will make it less attractive for a physician investor in a specialty hospital to refer less severely ill, but more profitable patients to the specialty hospital and refer the more severely ill and costly patients to community hospitals.

Reform Payments to Ambulatory Surgical Centers (ASCs)

In its 2005 report to Congress, HHS found that many orthopedic and surgical specialty hospitals were more similar to ASCs than to acute care hospitals (i.e. few inpatient beds and a perceived concentration on outpatient care). However, payment rates differed between specialty hospitals and ASCs for what were essentially similar services. As a result, CMS intends to reform payments to ASCs beginning in 2008 to remove some of the incentives for physician investors to form orthopedic and surgical specialty hospitals to take advantage of higher payments under hospital payment systems.

Emergency Medical Treatment and Labor Act (EMTALA) Obligations

Many specialty hospitals do not have emergency departments and have not been required to follow the screening and stabilization requirements under EMTALA. The fiscal year 2007 IPPS proposed rule includes a provision requiring all hospitals (including specialty hospitals) with specialized capabilities to accept, within the capacity of the hospital, appropriate transfers of unstable patients covered by EMTALA without regard to whether the hospital has an emergency department.

Definition of Hospital

CMS is scrutinizing whether specialty hospitals meet the definition of a hospital. Under current law, a hospital must be “primarily engaged” in furnishing services to inpatients. CMS does not intend to refine that definition, but will continue to interpret “primarily engaged” on a case-by-case basis and explore other options for addressing the issue.

Response to DRA’s Mandated Strategic and Implementing Plan

In its Interim Report, CMS describes how it intends to respond not only to the DRA’s mandates concerning the issues of physician investment, but also to charity care and care to Medicaid beneficiaries, and to enforcement.

Evidence on Financial Arrangements and Care to Low Income and Charity Care Patients

CMS is sending a survey to approximately 130 specialty hospitals and 270 general acute care hospitals to gather information about physician investment interests in specialty hospitals and the provision of care to low-income and charity care patients. The survey asks for information about:

the identity of physician investors and returns on the investments
any limitations on liability the physician investors have available to them
if the physician investors received a loan from the hospital to purchase the investment interest
whether the physician investors have a compensation arrangement (management contract) with the hospital or an entity related to the hospital.
The survey also asks the hospitals to list their number of Medicaid discharges, revenue derived from Medicaid patients and the amount of charity care provided.

Enforcement

CMS wants public comment on how it can best support enforcement actions against inappropriate investment in specialty hospitals. CMS acknowledged that many questions related to whether a physician’s investment is “proportional” or “bona fide” are appropriately addressed under the federal anti-kickback statute. Accordingly, CMS intends to consult with the HHS Office of Inspector General (OIG) for guidance on matters relating to anti-kickback statute enforcement.

Additionally, if CMS uncovers evidence of possible violations of the anti-kickback statute or evidence of potential violations of the physician self-referral law (the Stark Law), it will refer those cases to the OIG for possible enforcement actions.

McClellan explained CMS’ view of the “whole hospital” exception to the Stark Lawto the Senate Finance Committee. “CMS recognizes that there are different opinions regarding physician-owned specialty hospitals. Physician-owned specialty hospitals are legal under the existing whole hospital exception to the physician self-referral law and elimination of the exception cannot be done administratively,” he said.

Conclusion

CMS appears likely to rely upon the data it receives from the survey process to make any recommendations concerning physician investments in specialty hospitals. As CMS has stated that it will refer matters to the OIG if it uncovers evidence of possible violations of the federal anti-kickback statute or Stark, hospitals receiving such surveys may wish to consult with counsel before completing the CMS survey. Additionally, CMS’ statement that the whole hospital exception cannot be eliminated administratively indicates it’s deferring to Congress on the decision to enact another moratorium regarding specialty hospitals.

07-12-2006

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Holland & Hart, L.L.P.

Holland & Hart Named As A Top Firm In Pro Bono Participation
Holland & Hart was ranked among the top 10 firms in the nation based on pro bono participation according the The American Lawyer's 2006 Pro Bono Report. With more than 80 percent of the firm's attorneys undertaking more than 20 hours of pro bono work in 2005, Holland & Hart was ranked sixth nationally.

According to the publication, Holland & Hart attorneys averaged 88 pro bono hours each. Nation-wide only 10 firms averaged more than 85 pro bono hours per attorney, and only five firms had more than 80 percent of their lawyers undertaking more than 20 pro bono hours.

""Giving back to our communities is a guiding principle of Holland & Hart,"" said firm Chair Paul Phillips. ""This includes our pro bono legal work, and The American Lawyer ranking reflects the commitment of our attorneys to act upon that principle. The people who founded Holland & Hart taught us that practicing law is a privilege, not a right, and brings with it an obligation to give back to the communities and society we live in.

07-12-2006

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Cravath, Swaine & Moore, LLP

BOB JOFFE NAMED ONE OF THE 100 MOST INFLUENTIAL LAWYERS IN AMERICA
Cravath Presiding Partner Robert D. Joffe has been named one of the 100 most influential lawyers byThe National Law Journal.

07-12-2006

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Meyer, Suozzi, English & Klein P.C.

BAD GUYS COVERED BY CONSTITUTION TOO
It's easy to hate the bad guy. When someone is deemed a bad guy by society, people lose all respect for him or her. Sympathy usually goes out the window, no matter what the situation. But what if that situation is death? Kenneth Lay, the founder of Enron Corp., died last week from heart disease.

Lay was convicted of fraud and conspiracy for his involvement in a bogus barge deal. Lay's company attempted to sell interest in power plants on barges to banks by the end of 1999 so it would appear on paper that Enron Corp. met its earnings targets.
After hearing that he would be facing up to 45 years in prison, 64-year-old Lay and his attorneys appealed the case, vowing to take it all the way to the Supreme Court.

Today, however, Lay is an innocent man. Although Lay maintained his innocence throughout his trial, it wasn't until his dying day — which happened to be last week that it became official.

As a result, the entire case has been dropped, and those seeking reparations for losing their jobs or stock investments are left out to dry. According to an often-used court principle called abatement ab initio, if a person dies before an appeal, the case is dropped. The only hope now is to take the issue to civil court, where Lay's estate would probably be responsible for damages in civil actions, according to Lowell Peterson, a New York lawyer representing former workers and retirees at Enron.

It's easy to dislike Lay. It's even easy to hate him. But no matter how the public feels about Lay, we cannot strip him of his constitutional rights.

Originally, Lay was convicted of fraud and sentenced to pay more than $90 million for unlawful stock sales. Based upon this and his complete lack of ability to represent himself at an appeal, it's reasonable to assume that the first ruling should become the final ruling.

While it's reasonable that Lay is guilty, he may have been holding a key that would make jurors and even the Supreme Court come to the realization that he was innocent. There is no fair way to go on with the court case without Lay being physically present.

Constitutional rights are made to apply to all people in all situations. If you're the bad guy convicted of fraud, you have the same rights as the good guy convicted of fraud. In either case, you have the right to appeal and, in that, the possibility of preserving your innocence.

Unfortunately, even Lay is no exception. Bad guy or good guy, dead or alive, Lay has the same rights as everyone else.

07-12-2006

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Saul Ewing, LLP

Pro Bono Program Recognized in The Legal Intelligencer
Saul Ewing's Pro Bono Program was mentioned in this article about the latest pro bono rankings. In The American Lawyer's annual pro bono rankings, Saul Ewing's pro bono program rose the most spots among the 200 largest law firms in the country, jumping from 162 in 2004 to 65 in 2005. The dramatic improvement is directly related to the implementation of "We're All In," a firmwide pro bono program under which each lawyer pledges to give a minimum of 25 hours of pro bono work annually.

07-12-2006

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Shughart, Thomson & Kilroy, P.C.

Attorney Excels in Dual Roles
Shughart Thomson and Kilroy, P.C., is pleased to announce that Leon Silver has joined the firm as a Shareholder with the business litigation practice of the firm's Phoenix office.

“With his extensive legal background in vendor account, business tort litigation, class action and commercial trial work, the addition of Leon adds substantial value and breadth to our Business Litigation Practice,” stated Marty Harper, Managing Partner of the Phoenix office. “In conjunction with his stellar legal talents, he also reinforces the value of attorney mentoring and career development. We believe this unique capability will enable us to enhance our new attorneys professional development experience.”

Silver has been tapped as a “new breed” of attorney, whose experience and personality allow him to serve in a legal mentoring role, guiding young attorneys in their professional/ business development efforts. In his previous endeavors, he served as a mentor for a number of outstanding young lawyers, and he brings those skills to Shughart, Thomson & Kilroy.

Having practiced law since 1989, Mr. Silver opened a sole practice in 1995. Over the next eight years he developed a highly successful commercial practice. His practice grew to five lawyers handling a variety of business and real estate litigation and transactional matters for his mostly Phoenix based clients, including two of Phoenix’s Fortune 1000 retailers. In 2003 Mr. Silver became affiliated with a larger national firm combining offices in Seattle and Phoenix.

Silver joins Shughart, Thomson & Kilroy at a critical point in his career where he represents businesses nationally and internationally, while continuing to represent Phoenix and Arizona based businesses of all sizes. He has handled a variety of high profile legal matters and class action suits, and his background (as both lawyer and client) in personal service contracts, public image, and privacy rights, has brought him celebrity clients and national media prominence.

In addition to his substantial professional achievements, Mr. Silver has been active in numerous bar and civic activities, and supports civic organizations throughout Arizona. In 1999, he was presented with the prestigious Let Freedom Ring, Legal Community Leadership Award, in recognition of his years of volunteer community legal service. In 2005, Mr. Silver founded the Liberty Project, a “think-tank” made up of law students and young professionals seeking to protect and promote reproductive rights. He has spoken publicly on an array of issues regarding the constitutional right to privacy, sexual and reproductive freedom, as well as contraception and the right to choose. He has participated as a volunteer advocate and served as the Chairman of the Board of Directors for Planned Parenthood. Leon also serves on the Community Advisory Committee for the “Advocacy for the Arts,” a non-profit advisory organization for artists and authors. When he is not practicing law, Silver’s substantial talents extend to the performing arts; he paints, writes, records and performs music.

A graduate of St. Lawrence University (B.A. Fine Arts, 1984), Mr. Silver received his J.D. in 1989 from Arizona State University. He is a member of the Arizona State, Federal, and Bankruptcy Courts, the 9th Circuit Court of Appeals, and he serves as a Judge Pro Tempore of the Maricopa County Superior Court.

07-12-2006

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