Nashville Bar Journal | September 2015

Nashville Bar Journal

SEPTEMBER 15- VOL 15, NO. 8

The Two Sides of the Whistleblowing Coin Offering Big Payouts and Potentially Bigger Repercussions Michelle Balfour

Kane ex rel. U.S. v. Healthfirst, Inc.: Inaugural Decision on Identifying Overpayments under the ACA's Report and Return Rules Hannah Metzger & Alan Rumph

NBA Diversity Committee High School Summer Intern Program

NO FIRM IS TOO SMALL FOR A COMPREHENSIVE AND AFFORDABLE RETIREMENT PLAN.

The aba retirement funds program (“the Program”) has provided retirement plan services to firms of all sizes – even solo practitioners – since 1963. We believe today, as we did then, that the unique needs of the legal community are best served by a retirement Program built exclusively to benefit its members.

Call an ABA Retirement Funds Program Regional Representative today at 866.812.1510. www.abaretirement.com joinus@abaretirement.com The Program is available through the Association of Legal Administrators, an ALA Value In Partnership Program Provider as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security.

Securities offered through Voya Financial Partners, LLC (Member SIPC).

The ABA Retirement Funds Program and Voya Financial Partners, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services.

CN0228-8312-0315

FREE to NBA MEMBERS! $20 Guest tickets

Thursday, September 24th 5:30 - 8:30 p.m. @Walk of Fame Park

Dunking Booth!

Local BBQ! Local Beer!

Articles 6 The Two Sides of the Whistleblowing Coin Offering Big Payouts and Potentially Bigger Repercussions

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Michelle Balfour

Departments 2 4

Kane ex rel. U.S. v. Healthfirst, Inc.: Inaugural Decision on Identifying Overpayments under the ACA's Report and Return Rules Hannah Metzger & Alan Rumph

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Communique • NBA Annual Picnic • Tune Award • Dues Notice • Directory Photography • Golden Oldie • Upcoming Events

CONTINUING LEGAL EDUCATION CENTER SECTION

Non-Profit Spotlight: Notes for Notes

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Marjorie Kaup Haines

NBA Diversity Committee High School Summer Intern Program

Columns 12

From the President

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Gadget of the Month

Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

First Tennessee Partnership Provides Membership Opportunities

100% CLUB MEMBERS Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings

Golden Oldie

Joycelyn Stevenson

Identify the individuals in the photo.

Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue. If you have any photos you would like to submit for the Golden Oldie then please send those to the email above.

NBA Calendar of Events SEPTEMBER 14 - OCTOBER 2 o NBA DIRECTORY PHOTOGRAPHY

SEPTEMBER 21 - 11:45 AM Probate Committee Meeting

SEPTEMBER 24 - 4:30 PM Executive Committee Meeting

SEPTEMBER 15 - 12 PM Ethics Committee Meeting

SEPTEMBER 22 - 12 PM NBF Trustees Meeting

SEPTEMBER 16 - 9 AM Memorial Committee Meeting

SEPTEMBER 22 - 12 PM NBA CLE: Changing Law of Unmanned Systems (Drones)

SEPTEMBER 24 - 5 PM o NBA ANNUAL PICNIC @ Walk of Fame Park

SEPTEMBER 16 - 3 PM Budget Finance Committee Meeting SEPTEMBER 17 - 1 PM o HOFFA! Free NBA CLE @ Main Library

SEPTEMBER 23 - 12 PM Appellate Practice Meeting

OCTOBER 1 - 11:30 AM CLE Committee Meeting OCTOBER 1 - 12 PM Diversity Committee Meeting

SEPTEMBER 24 - 3:30 PM Finance Committee Meeting

Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org

' A Monthly Publication of the Nashville Bar Association

Edward D. Lanquist, Jr., Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

From the President

Your Nashville Bar Picnic - Dunken Revelry and Other Coming Attractions by:

Edward D. Lanquist, Jr.

Journal Staff:

Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Monica Mackie Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy.

POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork.

All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

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Nashville Bar Journal - September 2015

One strategic goal of the Nashville Bar Association is to provide attorneys with opportunities to get together. As I have said previously, one of my many favorite quotes from Judge Thomas A. Higgins (Retired) is, “The problem with lawyers is that they don’t drink enough whiskey together.” To solve this problem so eloquently stated by this sage jurist, the NBA is offering more and better opportunities for lawyers to get together.

As most of you know, the NBA has events on at least a monthly basis. Many of these have been the Happy Hours sponsored by other members and our very valuable non-law firm sponsors. When we do not have another scheduled event, we will continue to have these Happy Hours.

NBA Picnic On September 24, 2015, 5:30 pm until 8:30 pm, at Walk of Fame Park in Nashville, the Nashville Bar Association will conduct its annual picnic that is FREE to its members. You will have the opportunity to network with at least 250 members. You loyal readers will appreciate the need to network with other lawyers for the variety of reasons discussed in prior columns.

This year the picnic will be improved in many ways. One primary way is the reference to Dunken Revelry found above. For many reasons, including raising money for the Nashville Bar Foundation, the picnic will include a dunk tank sponsored by Grumpy’s Bail Bonds. Persons of interest may pay ten dollars to have the opportunity to dunk certain notorious characters. Leah Hulan of Grumpy’s will collect the contribution and hand out the balls. The brave notorious characters include Judge Joe Binkley, Jr., past NBA President Gail Vaughn Ashworth, current YLD President Ryan Levy, and yours truly. I am optimistic that there will be other dunkees added to the card. Surely, there are those of you out there seeking revenge for some reason. This will provide a prime opportunity for that, fun, and again raising money for the Foundation.

Additionally, we will have the normal free flowing local beer and local barbeque.

There will be an area for Pete Ezell and others to smoke their cigars. John McLemore will be taking pictures.

YLD 30th Anniversary Party Our Young Lawyers Division will be celebrating its 30th Anniversary on Wednesday, October 21, at the Hard Rock Cafe from 6pm to 9pm. The YLD has become the service arm of the NBA and not only done so much good, but also raised so much for many other community organizations. Come on out and celebrate.

NBA Swearing-In Ceremony and Judge’s Reception On November 17, 3:30 pm, the NBA will have a ceremony for newly licensed lawyers at the Justice A.A. Birch Building, Courtroom 1-A, followed by a reception with Davidson County judges in the Jury Assembly Room at 4:30 pm. All NBA members are encouraged to attend as this will serve as this month’s happy hour gathering.

2015 NBA BOARD OF DIRECTORS

Annual Meeting and Holiday Party On December 3, from 6pm to 8pm, the NBA will hold its popular Annual Meeting and Holiday Party at the Music City Center. The even more popular cocktail party will begin at 5pm. We decided to move to the Music City Center so that we have improved parking and your value proposition. Further, the cocktail area will be larger and on one level so that one will actually be able to move around.

More importantly, we are going to complete the award and recognition section in 40 minutes. We have learned from Judge Frank Clement in the way he emcees Law Day and the way that Judge/Dean Bill Koch runs the NSL dinner. I vow to know where the power switch is so we will be done in the 40 minutes. Awards will be given at another time with the recipients recognized through photographs. The Tune Award recipient will still speak but will be on fixed schedule. n

MEETING SPACE @ THE NBA CENTER

Edward D. Lanquist, Jr., President Joycelyn Stevenson, President-Elect Dewey Branstetter, First Vice President John C. McLemore, Second Vice President Charles K. Grant, Immediate Past President Ryan D. Levy, Young Lawyers Division President Whitney Haley, Secretary Hon. Joe B. Brown, Treasurer Eric W. Smith, Assistant Treasurer Lela Hollabaugh, General Counsel Robert C. Bigelow Hon. Joe P. Binkley, Jr. Hon. Sheila D. Calloway Kathryn S. Caudle Margaret M. Huff Hon. William C. Koch, Jr. Irwin J. Kuhn Claudia Levy Hon. Randal S. Mashburn Jeffrey Mobley Andrea P. Perry Erin Palmer Polly Matt Potempa David L. Raybin Sara F. Reynolds Nathan H. Ridley Maria M. Salas Saul Solomon Overton Thompson, III M. Bernadette Welch

NASHVILLE BAR ASSOCIATION

The NBA Center is available for you to host meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access.

Contact Vicki Shoulders at vicki.shoulders@nashvillebar.org and indicate the date, time and meeting room preference. Meeting space is subject to availability.

https://www.facebook.com /NashvilleBarAssociation

Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed and keep connected with fellow attorneys. From sole practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system.

Our Bar Association is much more than just a collection of services.

The power of our membership lies in the power of the people.

WE are the Bar. And together, we shape the future of the legal profession.

@theNashvilleBar

Got an Idea for an NBJ Article?

We want to hear about the topics and issues readers think should be covered in the magazine.

Send it to nikki.gray@nashvillebar.org Nashville Bar Journal - September 2015

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communiqué Dues Notice Our dues year ends on October 31, 2015. Look for your new dues statement in the mail in September. Please be sure to return 2016 NBA Dues forms before October 31, so that you may participate in our board elections in November. Remember that the information that you provide us with on your dues form is the information that we will publish next year in our 2016 NBA Attorney Directory.

Review your information closely to insure that your listing is correct and return promptly to the NBA Offices. If you have any questions regarding your dues form or member benefits please contact Vicki Shoulders at vicki.shoulders@nashvillebar.org or 615-242-9272.

FREE to NBA MEMBERS! $20 Guest tickets

Thursday, September 24th 5:30 - 8:30 p.m. @Walk of Fame Park

Dunking Booth!

Local BBQ! Local Beer!

RSVP @ WWW.NASHVILLEBAR.ORG

2016 Directory Photography Exclusive Sponsors:

September 14 - October 2

Photography for the 2016 NBA Photo Directory has been set for September 14 - October 2, 2015. The sessions will be held in the NBA Offices located at 150 4th Avenue North, Suite 1050, Nashville, TN 37219. Contact RCL Portrait Design at 1-800-580-5562 to pre-schedule your personal photography appointment.

Dunk Tank Sponsor: Grumpy’s Bail Bonds Event Sponsors: DSicovery LogicForce Consulting Nashville School of Law Professional Design & Printing Richard & Richards Thomson Reuters Vocational Economics Vowell, Jennings & Huseby

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Nashville Bar Journal - September 2015

Charlie Warfield Fellowship On August 27th friends gathered at the Tennessee Justice Center to celebrate Mr. Charlie H. Warfield and the establishment of the Charlie Warfield Fellowship. Charlie has been a champion for equal justice in the Tennessee legal community, first at Farris Warfield, now at Stites & Harbison. A generous challenge grant from Frank and Amy Garrison established this fellowship and over 40 more donors have contributed as well. An extraordinary young lawyer, who recently graduated from Vanderbilt University, has already been selected to be the first Warfield Fellow. Megan Metcalf is working with participants in the CHOICES program, which covers nursing home and home-based services. The first year of the fellowship is almost fully funded. To learn more and contribute go to: www.tnjustice.org/donate/warfield-fellowship/.

Tennessee Judiciary Museum

Tune Award Notice

The Tennessee Judiciary Museum offers an exciting view into the operation of the Tennessee Supreme Court, and the legal system in general. Exhibits include replicas of the three state constitutions, the private chambers of an appellate court judge, and interesting photographs, artifacts and relics of important events in judicial history. An interactive multi-media touch screen provides additional layers of visual and audio content for all exhibits.

Nominations are being sought for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on December 3, 2015.

To assist educators, downloadable lesson plans are available from the website.

Guided tours are available by contacting Jim Hivner, 615-741-1314 or tours@tennesseejudiciarymuseum. org. Self-guided tours are also available. ● Hours: Monday-Friday, 9am to 4pm ● Admission: Free ● Website: http://www.tennesseejudiciarymuseum.org/ ● Email: tours@tennesseejudiciarymuseum.org ● Parking: The closest public parking garage is the Nashville Public Library on Church Street, with entrances on 6th and 7th Avenues.

-Golden Oldies

This award is to be given to the Nashville Bar Association member who has shown the highest degree of dedication not only to his or her work as a lawyer but to the betterment of the community in which he or she lives. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys. Because of the nature of the award and the fact that it is to be considered the highest award which can be bestowed upon a member, it was decided that the award did not necessarily have to be given annually, but only when there is someone deserving of this award.

If you would like to nominate someone, please provide a detailed letter telling us why you feel the person is deserving.

Nominations should be directed to Traci Hollandsworth at 615-242-9272 or traci.hollandsworth@nashvillebar. org.

NBA CLE PASSES AVAILABLE!

The August Golden Oldie was correctly identified by Douglas Johnston, Jr. The photo shows Ed Fowlkes and Steve Cobb

UPCOMING EVENTS: NBA Member Picnic September 24, 2015 @ Walk of Fame Park 5:30 - 8:30 PM -------------------------------YLD 30th Anniversary Party October 21, 2015 Hard Rock Cafe 6 to 9 PM --------------------------------

NBA Swearing-In Ceremony and Judge’s Reception November 17, 2015 Justice A.A. Birch Building, Courtroom 1-A Reception following 3:30 PM -------------------------------Annual Meeting & Banquet December 3, 2015 @ Music City Center -------------------------------Nashville Bar Journal - September 2015

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Feature

The Two Sides of the Whistleblowing Coin Offering Big Payouts and Potentially Bigger Repercussions by:

Michelle Balfour

Whistleblowing has been heralded as the greatest check on Corporate America’s greed since Occupy Wall Street. It has also been accused of being equally ineffective.

the government as a “relator.” In effect, qui tam laws put the whistleblower in the role of the U.S. as a litigant to correct a wrong.

A whistleblower (whistle-blower or whistle blower) is a person who exposes any kind of information or activity that is deemed illegal, dishonest, or incorrect within an organization, whether that organization is governmental, private or public. Individuals blow the whistle for all sorts of reasons: personal integrity, altruism, concern for public safety, belief in justice and self-preservation. But some say that whistleblowing handicaps internal compliance programs at companies, is practically ineffective, creates long-term disincentives (in that most whistleblowers never fully recover earning power) and is a “race to the bottom”, with avarice as the motivating factor.

Specific elements of the FCA include: • There must be a financial loss to the federal government.

• Relators do not have to be governmental employees to make a claim.

• Those who are successful under the FCA typically are entitled to fifteen to twenty percent of recovered damages, with some payouts as large as thirty percent.

Whistleblowing is subject to a number of constraints, not the least of which is that the causes of action are based upon a hodgepodge of state and federal laws and regulations, and if a whistleblower fails to meet each and every requirement and deadline, the claim, and the whistleblower, is lost.

Federal Whistleblowing Many believe that the financial breakdown in 2008 begot whistleblowing in its current state, but whistleblowing is made up of panoply of state and federal laws that date back over a century.

The False Claims Act1 (FCA) is one of the oldest and most-often cited federal laws relating to whistleblowing. The Act covers all federal procurement and contracting and has been amended multiple times since its enactment in 1863. The core of the FCA is a qui tam provision, which allows whistleblowers to make a claim on behalf of 6

Nashville Bar Journal - September 2015

In 2014, the U.S. government recovered $5.69 billion dollars under the False Claims Act. But what is almost impossible to report is how often claims under the FCA are ignored, or worse, how often there is retaliation against a relator. Since the relator does not have to be an employee of the government to make a claim, she is not always at risk of losing her job. However, even in the case of employees, retaliatory job termination can often be easily explained by the employer as a result of something unrelated to whistleblowing, especially when an employer is savvy enough to wait over a year from the whistleblowing claim to terminate the employee.2 There are three other noteworthy federal qui tam laws that cans serve as the basis for whistleblowing claims: the Internal Revenue Code3 (IRC), the Securities Exchange Act4 (SEA) and the Commodity Exchange Act5

(CEA). The IRC allows whistleblowers to recover monetary rewards when they alert the federal government of underpayment of taxes, and such underpayment is then recovered. The law was first enacted in 1867, but since it offered no rewards for recoveries made based on tips, it was wildly unsuccessful. After several amendments, it took its current form in 20066, and now covers all major tax frauds.

Section 21F of the SEA7 and Section 23 of the CEA both came about through the Dodd-Frank Act Wall Street Reform and Consumer Protection Act in 2010.8 The SEA provision provides financial rewards for disclosing stock frauds while the CEA provision covers fraudulent activity related to the sale of commodities.

While federal laws appear to side with the whistleblower, when it comes to decisions and payouts, the government moves slowly. 297 whistleblower claims have been made for rewards since 2011 under the SEA. Of these, 247 have not received a decision. Whistleblowers have strict deadlines to make their claims, but there is no time limit for the Securities and Exchange Commission (SEC) to respond to any claims.

Notwithstanding the glacial pace for investigating and resolving SEA claims, the number of whistleblower tips has grown.

A claim for a reward differs from a tip. A claim is a step further along in the process and is seeking something in return (usually, money), whereas a tip may not be seeking anything in return.9 In 2011, 2012, 2013, and 2014, the SEC received 334, 3,001, 3,238, and 3,620 tips respectively. However, since 2012, the SEC has only made seventeen payouts and only finished reviewing fifty tips. Considering the practical career effects on a whistleblower, these are not encouraging results.

Transparency in the number of claims, payouts and retaliation is also an issue.

The SEC denied three public-records

requests by the Wall Street Journal as of May 2015, for data regarding the number of tips it received and what was done with such tips. Due to the shadowy nature of whistleblowing, and the reticence of the federal (and state) governments to publicly discuss it, it’s unclear what is causing the rising number of tips. Perhaps there is a sense of security to whistleblowers based upon the protections offered under the Sarbanes Oxley Act10, the No-FEAR Act11, the Whistleblowers Protection Act12 and the Lloyd La Follette Act.13 Or perhaps the payouts publicized in the news are enough for an employee to gamble with any potential fall-out that may result from becoming a whistleblower.

State Whistleblowing While most whistleblowers think first about federal laws, states have their own whistleblower acts.

than for federal claims: sometimes as high as 50% of the recouped amounts.

As a baseline, there is a hundred-year old “at will” doctrine in place for standard state employment arrangements. This “at will” doctrine allows employers to fire employees “at will.” Translation: a company would face no repercussions for firing an employee as a retaliatory measure for the employee blowing the whistle. However, forty-five states and D.C. protect whistleblowers under a public policy exception to this outdated doctrine. The only states that do not protect whistleblowers under this common law exception are Alabama, Georgia, Maine, Montana, and New York.

The number of claims made, denied, ignored and/or rewarded under the various Tennessee statutes is impossible to determine. The amounts recouped are either not reported or easily discoverable. Of course, employers are not reporting how many employees are fired for making whistleblowing claims either, and few employees ever see their days in court if they are punished for speaking up. If Tennessee wants more whistleblowers to stand up, the state would need to provide larger and more payouts, as well as provide transparency for those considering whistleblowing.

How can an employee have confidence of protection when it is impossible to learn the numbers or percentages that were protected in the past or some practical idea of how the process actually works?

Tennessee has adopted the exception to the “at will” doctrine as part of the Tennessee Public Protection Act14 (PPA). In addition, Tennessee has a state version of the FCA15 as well as the Tennessee Medicaid False Claims Act16 (TMFCA).

The Tennessee False Claims Act (TFCA) applies to fraudulent claims of payment to the state and for misappropriating state property. Payouts under the TFCA can be at an even higher percentage in Tennessee

The TMFCA allows relators to make claims when they know of someone defrauding or attempting to defraud the state Medicaid program. It functions in the same way as the TFCA, except it is specific to state Medicaid fraud.

The PPA, on the other hand, provides for almost no payouts. It restricts employers from firing employees in cases where the employee refused to participate in illegal activities, and/or the employee disclosed illegal activities. However, the PPA does not permit relators to file claims, nor, provide significant financial incentives for reporting. If you win a whistleblowing claim under the PPA, your only real remedy is to be reinstated in your job (although you may also seek back pay).

At the same time, Tennessee is a growing state with booming commerce. The state has landed nine of the world’s largest publicly-traded companies. Some would argue that if Tennessee wants to continue to court and retain such profitable compaContinued on Page 15 

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Feature

Kane ex rel. U.S. v. Healthfirst, Inc.:

Inaugural Decision on Identifying Overpayments under the ACA's Report and Return Rule by:

Hannah Metzger & Alan Rumph

In deciding a motion to dismiss filed by the defendants in Kane ex rel. U.S. v. Healthfirst, Inc., the federal district court for the Southern District of New York ("District Court" or "Court") provided a long-awaited interpretation as to when a health care provider has "identified" an overpayment for purposes of the Affordable Care Act's 60-day Medicare and Medicaid overpayment reporting rule.1 After finding that the term "identify" and by extension, "identified", could not be rightfully assigned a plain meaning, the District Court turned to the canons of statutory construction before ultimately adopting the Government's position that an overpayment is "identified" when "a provider is put on notice of a potential overpayment, rather than [at] the moment an overpayment is conclusively ascertained". For purposes of the motion to dismiss, Continuum was deemed to be put on notice when Kane, who had been Continuum's Technical Director of Revenue Cycle Operations for Hospital Systems & Operations since 2004, sent his (albeit overly inclusive) email summarizing the universe of claims that had potentially been overpaid by the NYDOH and thus, the District Court found that the Government had sufficiently plead an obligation for purposes of the federal False Claims Act (FCA).2 The District Court found this interpretation of "identified" to be consistent with (1) the legislative history of both the False Claims Act and the Fraud Enforcement Recovery Act (FERA) as it amended the FCA, bolstering its conclusion with language from a Senate Judiciary Report based on the Tenth Circuit decision in United States ex rel. Bahrani v. Conagra, Inc., in which

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the Tenth Circuit decided that "there are instances in which a party is required to pay money to the government, but, at the time the obligation arises, the sum has not been precisely determined"; and (2) the final rule regarding reporting and returning overpayments for purposes of Medicare Parts C & D promulgated

by CMS in 2014 that adopted the standard that a Medicare Advantage organization or Part D sponsor has "identified an overpayment when the [entity] has determined, or should have determined through the exercise of reasonable diligence, that [it] has received an overpayment".3 Because the retention of an overpayment constitutes an obligation for purposes of the FCA (as amended by the FERA)4, the practical effect of this decision (at least until otherwise decided on appeal), is that for purposes of FCA liability5, the clock starts when a provider is "put on notice" of a potential overpayment. Thus, if a Medicare or Medicaid overpayment is not reported and returned within 60 days of the date the provider was "put on notice", the retention of that overpayment provides the basis for the imposition of FCA liability.6 Perhaps the most distressing language for providers in the District Court's opinion is its clear recognition of the burden such a standard creates:

The ACA can potentially impose a demanding standard of compliance in particular cases . . ..

[A]n overpayment would technically qualify as an 'obligation' even where a provide receives an email like Kane's, struggles to conduct an internal audit, and reports its efforts to the Government within the sixty-day window, but has yet to isolate and return all overpayments sixty-one days after being put on notice of potential overpayments.

The ACA itself contains no language to temper or qualify this unforgiving rule; it nowhere requires the Government to grant more leeway or more time to a provider who fails timely to return an overpayment but acts with reasonable diligence in an attempt to do so.7 Maybe the District Court intends to encourage providers to lobby Congress to adopt legislation affording courts greater discretion in assessing the significant fines currently dictated in response to FCA non-compliance8, but at present the District Court's decision indicates a provider's sole basis for relief in cases where the provider acts in good faith is that prosecutorial discretion will advise against the prosecution of such good faith cases.

It remains to be seen if such prosecutorial discretion will materialize, and in the meantime, providers are left to wonder exactly what "put on notice" will mean in

the context of everyday operations. Will a single email or off-hand comment by a billing or coding employee that the individual has mistakenly coded a claim such that the provider has realized an overpayment however de minimis constitute the provider being "put on notice"?

The Court's analytical process may have been sound, and it may have reached a result with which few would disagree based on the facts presented. Much like the Fourth Circuit Court of Appeals's opinion in Tuomey 9, the Kane opinion illustrates what can happen when courts must apply highly technical legislation or regulations to egregious facts. The courts may, as in Tuomey and Kane, interpret the law in a much more expansive way than is necessary to address the facts before them. For example, the Kane Court need not have defined "identified" so broadly to include every instance in which "a provider is put on notice of a potential [not actual] overpayment." The Court could have instead held that a provider must undertake a timely and reasonable investigation when it receives notice of a potential overpayment, and that the 60-day clock might not begin to run until the provider timely and reasonably determines that an actual overpayment appears to exist.

The facts, at least as presented for purposes of the motions to dismiss in Kane v. Healthfirst provide some guidance as to how a provider should conduct itself when faced with potential overpayments, or at least, a blueprint for actions to avoid.

Certainly, in the event a provider is contacted by any government agency (or alternatively, a non-government contractor) regarding a compliance or billing issue, a thorough and timely investigation should be undertaken under the guidance of seasoned health care counsel, prioritizing

analysis of Federal health care programreimbursed claims. In the case at hand, it appears that the first notice to Continuum occurred in September of 2010, and yet Continuum did not task Kane with evaluating the potential universe of claims until December that same year. Because it will take time for courts to flesh out what it means for a provider to be "put on notice", providers should operate cautiously while continuing to avail themselves of all reasonable positions as determined by competent counsel.

Further and likely obvious to most health care providers, no retaliatory action should be taken against the individuals tasked with evaluating the scope of the potential billing issue, and certainly, if overpayment issues are discovered or potentially exist, the provider would be best served by continuing its investigation until the full extent of the extent of any overpayments is determined, avoiding the appearance of passivity or failure to act that could be perceived by courts, like the District Court in this instant case, as "doing nothing".

The provider will in many cases need to decide at what point, and possibly, which, government agencies should be notified of its findings. Continuum did not garner the District Court's goodwill by failing to make the bulk of its repayments until a Civil Investigative Demand was issued, and thus, prompt and perhaps even periodic repayment may be advisable in an overpayment scenario. While counsel can assist the provider in making these decisions, as Kane v. Healthfirst highlights, in no event, should the return and report of overpayments exceed the sixty day deadline.

Continued on Page 18 ďƒœ

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Non-Profit Spotlight:

Notes for Notes® is a nationwide 501(c) (3) non-profit organization dedicated to providing youth (6-18 years old) with completely free access to music instruments, expert instruction, and recording studio environments so that music may become a profoundly positive experience in their lives.

This organization designs, equips, and staffs after-school recording studios inside Boys & Girls Clubs offering youth the opportunity to explore, create, and record music their own music. The studios are fully equipped recording facilities packed with professional instruments (guitars, basses, drums, keyboards/synths, etc.) as well as DJ gear and digital music workstations. Staffed by Notes for Notes® team members, the studios offer a knowledge base of engineering, instrumentals, theory, and songwriting, ingrained in a culture conducive to collaboration and communication. Beyond providing access to equipment and resources, they educate youth about careers both on the stage and behind the scenes.

Notes for Notes® was founded on the core belief that music is the universal language of humankind, with the power to transcend virtually any cultural, racial, or socioeconomic barrier. At the heart of the organization is a total deduction to the relationships formed through music. The organization makes it a point NOT to censor lyrics – believing that this freedom of 10

Nashville Bar Journal - September 2015

expression and respect for creativity drives an open studio environment.

Nashville is home to two Notes for Notes® Studios, which are located at: Andrew Jackson Boys & Girls Club 916 16th Ave. N Nashville, TN 37208 Preston Taylor Boys & Girls Club 915 38th Ave. N Nashville, TN 37209 These studios are stocked with a variety of electric and acoustic instruments, including guitars and basses, keyboard synthesizers/electric pianos, drums, percussion instruments, turntables and state-of-the art digital recording equipment. Beyond instrument and production exploration, there are opportunities to learn about professional musicianship and other careers in the industry thanks to partnerships with local venues, universities, and companies like CAA, CMA, SESAC, and more.

Juliana Lee, Director of Community Relations, emphasizes that all memberships, related programs and opportunities are free, and open to all Middle Tennessee aspiring musicians and young artists. No financial information is ever collected – no questions are asked. They do ask that members also become Boys & Girls Club members at a nominal yearly fee.

DONATE MONEY: You can “Produce Tomorrow’s Musicians”! or songwriters, DJs and production engineers.

DONATE GEAR: Have a dusty guitar lying around? How about a keyboard in storage? Come on – this is NASHVILLE! How many of you moved here to get into the music business? Donate that amp sitting in your bonus room with the lamp on it! Just make sure it is usable. Or perhaps brand new instruments or gear that will facilitate the musical dreams of the next generation.

DONATE TIME: Have a little time and want to volunteer in the studios or for special projects? Maybe you want to lead a workshop or do a small show for an eager young audience.

Take a tour of a local studio. Like them on Facebook to receive information on local events and updates on studios opening around the country. Visit their website at www.notesfornotes.org to learn more about the history (well worth the read!), location of studios, local happenings, and how you can participate!  This spotlight on Non-Profit Organizations was submitted by Marjorie Kaup Haines, Esq., 615-818-6988, margehaines@aol.com.

Nashville Bar Journal - September 2015

11

BI L L GA & PH DG ET O IL'S F THE

MONTH

Windows 10 Less “Touchy” than Windows 8

By: Bill Ramsey, Neal & Harwell, PLC and Phillip Hampton, LogicForce Consulting It is no secret that Microsoft’s last major operating system upgrade, dubbed Windows 8, was not met with resounding fan support, especially from office denizens. While trying to appeal to tablet users with a touch-friendly “metro” interface and tablet-centric apps, Microsoft lost significant credibility with mainstream users who rarely use touch devices in the office. “Give me back my old Windows 7. Why can’t I keep Win XP?” were some of the comments we heard frequently around the office. “Where did my Start menu go?” was a question that Microsoft apparently heard quite frequently in their offices. When Microsoft released Windows 10 earlier this year, it highlighted the reinstatement of a Start menu loud and clear. Windows 7 refugees can safely cross on over now to the Windows 10 Promised Land.

But the reappearance of the Start menu was just one of the more visible changes to Windows 10. Under the hood, so to speak, Microsoft has crafted a brand new system that cleverly takes advantage of mobile, touch-friendly devices without alienating the masses who still use mouse and keyboard to navigate around their daily work. In other words, Windows 10 is what Windows 8 was supposed to be…an operating system that bridges the gap between the mobile and desktop worlds. The only difference is that now Microsoft at least seems to have it right. If you are working on a traditional desktop PC, Windows 10 will work remarkably like Windows 7, with some extra bells and whistles for fun.

However, if you are using a mobile device, or even switch from desktop mode to tablet mode on a convertible device (like a Surface Pro 3), Windows 10 is smart enough to know and will optimize the interface to a touch-friendly mobile style.

One of the new features that we really like in Windows 10 is the virtual desktop feature. With this option, you can have multiple Windows desktops running on the same PC and can drag and drop applications into any of those virtual environments. In other words, we can have a desktop view where we use primarily Outlook and Word and then another desktop where we are running a document review platform and then maybe a third desktop where we are “quietly” browsing the internet visiting those websites that we’re not supposed to visit during work hours (we know you do it too). The beauty of the separate desktops is that each is running in its own pristine environment and we can go back and forth between each environment, just like moving from PC to PC. With the new Windows 10 system come some new productivity apps that have key updates as well. The new Mail app that comes bundled with Windows 10 is fantastic as a lightweight alternative to Outlook. We also really like the built-in Calendar app. One particular annoyance that has gone away in Windows 10 is the full-screen-only behavior of apps downloaded from the Microsoft Store. We always wondered why a Microsoft app would automatically take up the whole screen in Windows 8 without the ability to treat it just like any other window on the desktop. Microsoft apparently read our minds because now, in Windows 10, apps are opened in normal Windows with familiar controls and sit alongside our normal software windows in the taskbar. Yes! We couldn’t be happier.

Some of the other newbies in Windows 10 include a new internet browser, called Edge, and an introduction of Cortana, the virtual assistant that first appeared on Windows phones, to the desktop. We like the Internet Explorer replacement, called Edge, even though it is probably way overdue. We still like Chrome and since all of our bookmarks Continued on Page 13 

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Nashville Bar Journal - September 2015

BI L L GA & PH DG ET O IL'S F THE

MONTH

Bill & Phil's Gadget of the Month Continued from page 12

are there, we tend to use it more frequently. But Edge is a nice replacement for IE, even though it still needs some “tweaking” by Microsoft. Cortana, the voice activated virtual assistant (this is like Microsoft’s version of Siri), would be really nice on a mobile device, like a phone. We just don’t see the need to use it much on a desktop PC. If we want to look up something, it’s just as easy to click or type instead of talking to Cortana while sitting at our desk. We certainly don’t want to give our office mates any other reasons to believe we’re weird, so we’ll only talk to our virtual assistants on our phones when we’re out of the office. (We already talk to ourselves as it is.)

Microsoft is saying that any user that is running a legitimate copy of Windows 7 or Windows 8 can upgrade to Windows 10 for free for the first year. We have already taken advantage of this offer and the upgrade was fairly painless, although it took a little longer than expected. Microsoft also says that once Windows 10 is installed, it will be updated for life. Does this mean that there will be no Windows 11? It appears so. Microsoft seems to think this is the operating system that will guide us into the next millennium. The bottom line is that Microsoft clearly is betting the farm (or at least their tech relevance) on Windows 10.

So far, we like what we see. Clearly if you have a device with Windows 8, you need to take advantage of the free upgrade sooner rather than later. If you are still using Windows 7, proceed with caution. You want to make sure that your hardware and application software are compatible with the new version. We know change comes hard to many in our industry; but at some point, no matter how reliable that car is that just rolled past 250,000 miles on the odometer, you have to trade it in for a newer model.

We think that Windows 10 is not a bad model upgrade at all.

See you next month, —Bill & Phil

Nashville Bar Journal - September 2015

13

NBA Diversity Committee High School Summer Intern Program The 2015 NBA Diversity Committee High School Summer Intern Program took place from June 8th – July 24th and was a great success.

This seven-week long internship program places high school students who are interested in practicing law with various firms, legal offices, and government agencies in the city. The purpose of the program is to introduce the students to the practice of law by providing an environment in which they can interact with attorneys on a regular basis, ask questions about all facets of the practice of law, and get a first-hand view of the practice themselves.

This year’s interns included some of the most talented students that Nashville has to offer: Obi Ananaba (Harpeth Hall), Airrion Beard, Jr. (Nashville Big Picture), Torianna Doss (Lead Academy), Sarahi Gomez (Hunters Lane), Clifton Martin (Martin Luther King), Violeta Martinez (Hunters Lane), Megnot Mulugeta (MLK), Jordan Scales (McGavock), Clarmeshia Taylor (Overton), Yadira Vazquez (Nashville Big Picture), and Marina Yousef (Overton).

The program also was a success due to the contributions of the employers who allowed these students to not only work in their offices but provided support throughout the summer. The employers who participated this year were: Asurion; Baker Donelson Bearman Caldwell & Berkowitz; Law Office of Bart Durham; Bass, Berry & Sims; Bradley Arant Boult Cummings; Cornelius & Collins; Harwell Howard Hyne Gabbert & Manner; Metro Public Defender’s Office; Sherrard & Roe; Tennessee Attorney General’s Office; and Waller.

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Nashville Bar Journal - September 2015

We would also like to thank the Napier Looby Bar Foundation for sponsoring one of the interns this summer.

Over the course of seven weeks, the interns performed job activities ranging from general receptionist duties to categorizing discovery responses. They were able to connect with a variety of people in the legal community.

Many of these contacts and relationships stemmed from the series of “lunch and learn” sessions where students were introduced to individuals within a variety of legal careers. For example, the students had the opportunity to meet with Mayor Karl Dean to hear his perspective on the legal profession and his journey to his present career. Students also met with Judge Jane Stranch who spoke with them about federal courts and Judge Angie Dalton who led the students in a Mock Trial where they acted as prosecution and defense for several cases. They also toured Vanderbilt Law School and spoke with the Admissions office about applying for and attending law school. Additionally, the students toured the Metro jail after meeting with attorneys from the Public Defender’s Office, the District Attorney’s office, and Criminal Court Judge Monte Watkins.

The Two Sides of the Whistleblowing Coin Offering Big Payouts and Potentially Bigger Repercussions Continued from page 7

Their “lunch and learn” sessions were made possible by our sponsors: attorney Raquel Bellamy; Bone McAllester Norton; Bradley Arant Boult Cummings; Harwell Howard Hyne Gabbert & Manner; Riley Warnock & Jacobson; and Waller.

The Committee offers its sincere gratitude to these firms.

The students and their Mentors also came together for an afternoon of conversation during the Mentor-Mentee Luncheon at the Spaghetti Factory. A special thanks to Sherrard & Roe for sponsoring this lunch. The mentors served as invaluable assets to the students. Sincere thanks goes to these mentors: Chris Bellamy, Raquel Bellamy, Mariah Cole, Judge Angie Dalton, Kyonzte Hughes-Toombs, Cornell Kennedy, Adriana Madrazo, Tiffany Palmer, Andrea Perry, Jessica Reeves, Nikki Smith-Bartley, and Carvin Vaughn.

This program is not only an asset to the Nashville legal community but to the community at large.

It provides an avenue for diverse students to gain access to opportunities that will help them pursue their interest in the legal profession. Each year, the students have been driven to succeed, and this year is no exception. We strive to fuel their motivation and help them to realize their potential.

The Committee did an excellent job putting together a superb summer program. Committee members include: Chris Bellamy, Raquel Bellamy, Cornell Kennedy, Andrea Perry, and & Rita Roberts-Turner.

The Committee would like to extend an invitation to all Nashville firms and law offices to participate in this wonderful program as an employer and/or sponsor. If interested in participating in the 2016 program, please contact Traci Hollandsworth at 615-242-9272. 

nies to augment the state’s tax and employment base, perhaps it should take a page from New York’s playbook and remove the exception to the “at will” doctrine entirely.

Conclusion Whistleblowing works, except when it doesn’t. The government has provided numerous avenues for employees and ordinary citizens to blow the whistle while retaining one’s job and/or be financially rewarded. However, the government places timing restrictions on those making claims and has almost no transparency when it comes to how claims and rewards are processed. The vast majority of claims and tips are never resolved, and of those that are, even fewer get payouts.

So when counseling a whistleblower, think in terms of context, not just the law. How is blowing the whistle going to effect this person, her family and future? As her attorney, you must also think about how you can comply with your ethical obligation to zealously protect your client from harm, even when you know that most whistleblowers will suffer some harm (especially reduced future earning potential).17 Similarly, if your client is a company, you must think about how to strictly comply with state and federal statutes and corporate policies and procedures while still protecting employees and recouping the practical benefits that come from whistleblowing.18 Whistleblowing is merely a tool. And, as with every tool, whistleblowing has both positive and negative uses. Given this dichotomy, the lawyer’s role is sometimes to weigh, with the client’s active involvement, the pros and cons of a specific whistleblowing activity, and then see that the laws are used appropriately, for their client, and for society at large.19  Michelle Drinkard Balfour is a Managing Associate at Frost Brown Todd LLC, where she primarily handles matters involving mergers and acquisitions, corporate trust and commercial real estate. She is licensed in Tennessee and New York and can be reached at 615-251-5577 or mbalfour@ fbtlaw.com.

(Endnotes) 1 31 U.S.C. §§ 3729 – 3733.

2 The average length of time that passes between when a whistleblower makes a claim and loses her job is two years.

3 26 U.S.C. § 7263.

4 15 U.S.C. § 78u-6.

5 7 U.S.C. § 23.

6 26 U.S.C. § 406.

7 On August 4, 2015, the SEC issued further interpretive guidance clarifying how whistleblower status shall be determined.

8 Pub. L. 111-203, H.R. 4173.

9 A tip may also be anonymous whereas a claim may not.

10 Pub. L. 107-204, 116 Stat. 745.

11 Pub. L. 107-174, 116 Stat. 556.

12 Pub. L. 101-12, 103 Stat. 16.

13 5 U.S.C.A. § 652(a, b).

14 Tenn. Code Ann. § 50-1-304.

15 Tenn. Code Ann. §§ 4-18-101 to -108 16 Tenn. Code Ann. §§ 71-5-181 to -186 17 Alix Stuart, Whistle-Blower Woes, CFO Mag, (Oct. 1, 2003), http://ww2.cfo.com/ risk-compliance/2003/10/whistle-blower-woes/.

18 Survey participants in the Association of Certified Fraud Examiners’ 2010 Report to the Nations on Occupational Fraud and Abuse estimated that the typical organization loses 5% of its revenues to fraud each year. See Madan Lal Bhasin, Corporate Accounting Fraud: A Case Study of Satyam Computers Limited, Open J. Acct. 2, 26-38 (2013), available at http://www.scirp.org/journal/PaperInformation.aspx?paperID=30220.

19 The author would like to acknowledge Stephen Martin Kohn, Esq. and his book, The Whistleblower’s Handbook, for its exposition of whistleblowing in years past and present and Kelly Frey for his assistance with this article.

Nashville Bar Journal - September 2015

15

NASHVILLE BAR ASSOCIATION Benefits of Membership

The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with tangible and intangible benefits for your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

Here are a few of the many reasons to belong to the NBA…

• Connect with Your Local Legal Community The NBA provides numerous opportunities to meet and connect with other Nashville-area attorneys. Through networking, social events, continuing education, committee work, and other career and personal development opportunities, we help bring our profession together.

• Expand Your Business and Client Base Build relationships, network, and gain referrals through activities and programs, CLEs, committee work, volunteer projects, or by joining the NBA Lawyer Referral and Information Service at the member rate.

• Be a Better Lawyer Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality CLE programs and committee in-service meetings, and stay informed with insightful and timely articles in the Nashville Bar Journal.

• Sharpen Your Practice Skills with CLE Attend our innovative, and engaging CLE courses featuring local, regional, and national presenters. Our skilled faculty will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates.

• Give Back to the Community Serve the public and help improve the image of lawyers by participating in community service projects offered by the Young Lawyers Division and the NBA throughout the year, volunteer for Dial-A-Lawyer—a free call-in service where members provide general legal information to the public, or help with one of the many projects offered through the Minority Opportunities Program.

• Meet New People Don’t just hang out with familiar faces. Use social gatherings, NBA CLE’s, committee work, and Young Lawyer Division events and community projects to build your network of contacts throughout Nashville and surrounding counties.

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Nashville Bar Journal - September 2015

• Learn from the Experts Attend NBA CLEs to hear from law practice leaders who will share their expertise and practical experience.

Be educated, enlightened, and even entertained by keynote speakers and other special guests from the legal community—local, regional, and national.

• Be a Leader Set the pace in the legal community by serving on committees, publishing Nashville Bar Journal articles, helping produce or present CLE seminars, joining the Young Lawyers Division, participating on the NBA Board, or working with the Nashville Bar Foundation.

• Refresh and Renew Yourself Take time out from your daily routine to attend a Bar event or activity—such as the annual Golf Tournament, Free Member Picnic or one of our many Happy Hour gatherings—and catch up with old friends or unwind with new ones.

And more…

• Use the NBA Center—to hosts meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access.

• Visit the NBA’s Online Career Center—where you can post your resume, search job postings, and access the career resources library.

• Receive Announcement Emails—covering timely events, membership news, spotlighted events, and CLE announcements.

• Participate in the NBA’s Lawyer2Lawyer Mentoring program—a web-based resource designed to connect experienced attorneys with newer attorneys who desire assistance with substantive legal issues or the personal and professional demands of practicing law.

• Use the NBA Attorney Directory—to find names, photos, and contact information for Davidson County lawyers and judges, firm listings, court information, and areas of practice of local attorneys.

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. Members will be listed monthly in the Nashville Bar Journal and will appear in our annual directory.

Contact Vicki Shoulders at 615-242-9272 or vicki.shoulders@nashvillebar.org if you have any questions. Thank you for supporting your local bar association!

Bradley Arant Boult Cummings LLP (111) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (99) Butler Snow LLP (61) Bone McAllester Norton PLLC (37) Sherrard & Roe, PLC (32) Adams and Reese LLP (31) Lewis Thomason (29) Stites & Harbison, PLLC (29) Neal & Harwell, PLC (28) Dickinson Wright PLLC (27) Gullett, Sanford, Robinson & Martin, PLLC (27) Manier & Herod, P.C. (26) Burr & Forman LLP (23) Ortale, Kelley, Herbert & Crawford (22) Frost Brown Todd LLC (21) Riley Warnock & Jacobson, PLC (20) Patterson Intellectual Property Law, PC (16) Cornelius & Collins, LLP (15) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (15) Branstetter, Stranch & Jennings, PLLC (14) Tune, Entrekin & White, P.C. (14) Nelson Mullins Riley & Scarborough (13) Hall Booth Smith, P.C. (12) Leitner, Williams, Dooley & Napolitan, PLLC (12) Spicer Rudstrom, PLLC (12) Brewer, Krause, Brooks, Chastain and Burrow, PLLC (11) Legal Aid Society of Middle Tennessee and the Cumberlands (11) Watkins & McNeilly, PLLC (11) Smith Cashion & Orr, PLC (10) Dodson Parker Behm & Capparella, P.C. (9) Dollar General Corporation (9) Kay, Griffin, Enkema & Colbert, PLLC (9) Littler Mendelson, P.C. (9) Corrections Corporation of America (8) Lassiter, Tidwell & Davis, PLLC (8) Morgan, Akins & Clark, PLLC (8) Schulman, LeRoy & Bennett, P.C. (8) Howard Mobley Hayes & Gontarek, PLLC (7) Jones Hawkins & Farmer, PLC (7) Levine, Orr & Geracioti, PLLC (7) Parker, Lawrence, Cantrell & Smith (7) Taylor, Pigue, Marchetti & Blair PLLC (7) Buffaloe & Associates, PLC (6) Evans, Jones & Reynolds, P.C. (6) Hollins, Raybin & Weissman, P.C. (6) Keller, Turner, Ruth, Andrews, Ghanem & Heller, PLLC (6) Law Offices of John Day, P.C. (6)

White & Reasor, PLC (6) Wiseman Ashworth Law Group, PLC (6) American General Life Insurance Company (5) Farris Bobango, PLC (5) Haynes, Freeman & Bracey, PLC (5) Kinnard, Clayton & Beveridge (5) Leader, Bulso & Nolan, PLC (5) Loeb & Loeb, LLP (5) Martin Heller Potempa & Sheppard, PLLC (5) McAngus Goudelock & Courie (5) Reno & Cavanaugh PLLC (5) Rogers, Kamm & Shea (5) Trauger & Tuke (5) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Goodman Callahan Blackstone, PLLC (4) Hale & Hale, PLC (4) Robinson, Reagan & Young, PLLC (4) Rothschild & Ausbrooks, PLLC (4) Rutherford & DeMarco (4) Shackelford, Zumwalt & Hayes, LLP (4) Surber, Asher, Surber & Moushon (4) Tennessee Justice Center (4) The Collins Law Firm, PLLC (4) Weatherly, McNally & Dixon, PLC (4) Anderson & Reynolds, PLC (3) Cameron Worley, P.C. (3) Carney Elkins Curry, PLC (3) Cole Law Group (3) Grissim & Hodges (3) Holton & Mayberry, P.C. (3) Ingram Content Group Inc. (3) Larry R. Williams, PLLC (3) Lieff, Cabraser, Heimann & Bernstein (3) Luna Law Group, PLLC (3) MTR Family Law, PLLC (3) Nashville Electric Service (3) Prochaska Quinn & Ferraro, P.C. (3) Sarah Cannon Research Institute (3) Shackelford, Bowen, Zumwalt & Hayes, LLP (3) SIMS|FUNK, PLC (3) Smythe & Huff (3) Southern Environmental Law Center (3) Southland Title & Escrow Co., Inc. (3) Tennessee Department of Revenue (3) The Law Office of Martin Sir & Associates (3) Trust Tree Legal (3) Video Gaming Technologies, Inc. (3) Vanderbilt University Law School (3) Nashville Bar Journal - September 2015

17

Kane ex rel. U.S. v. Healthfirst, Inc.: Inaugural Decision on Identifying Overpayments under the ACA's Report and Return Rule Continued from page 9

Finally, one cannot underestimate the importance of the due diligence process for technology and software contracts and vendors. It is advisable to vet software and other vendors with scrutiny and ensure that processes to ensure compliance are not only in place, but verified and updated regularly. Providers should also consider whether to employ indemnity provisions in contracts in the event a vendor issue, such as the software glitch in Kane v. Healthfirst, becomes the source of an overpayment for which the provider incurs significant liability. As always, providers will likely benefit from fostering a culture of compliance where open discussion of potential overpayments and other compliance issues are encouraged, thereby supporting those individuals in the organization who may be most helpful in determining the existence and scope of any potential overpayments such that internal audits flow as smoothly as possible in the unfortunate event that an overpayment does exist. In conclusion, while Kane v.

Healthfirst adds to the arsenal of regulatory enforcement, ultimately, providers can take practical proactive measures to reduce their risk of FCA prosecution by avoiding the mistakes that Continuum appears to have made.

Despite the weaknesses of the District Court's opinion, the two most important points from Kane that hospitals and other providers should keep in mind are: (1) The overpayment statute is self-effecting and applicable to Medicare and Medicaid providers, even before CMS issues final regulations applying it to them (a position CMS took in the proposed regulations);

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and (2) An overpayment that was wholly innocent (i.e., not "knowing" under the FCA) when received may nevertheless result in FCA liability, if it is not reported and returned within 60-days after it is "identified."  Hannah Metzger advises health care clients, including home health agencies, hospices, laboratories, ambulatory surgery centers and hospitals, on Medicare provider enrollment and reimbursement, fraud and abuse, and state law issues. She also provides legal guidance on a wide variety of health care arrangements including the provision of health care professional employment and professional services, clinical co-management arrangements, policy and compliance plan development, and compliance audits.

Alan Rumph has substantial experience counseling clients with respect to the False Claims Act, the Medicare Anti-Kickback Statute, the Anti-Markup Rule, the Civil Monetary Penalties Law and other health care compliance and fraud and abuse matters. Alan Rumph is a nationally-recognized authority in several health care regulatory areas, including the federal physician self-referral law, also known as the Stark Law. He created and maintains the website www.StarkAnswers.com.

(Endnotes) 1 Kane ex rel. U.S. v. Healthfirst, Inc., No. 11 CIV. 2325 ER, 2015 WL 4619686, at *1 (S.D.N.Y. Aug. 3, 2015)."An overpayment must be reported and returned under paragraph (1) by the later of-- (A) the date which is 60 days after the date on which the overpayment was identified; or (B) the date any corresponding cost report is due, if applicable. (3) Enforcement. Any overpayment retained by a person after the deadline for reporting and returning the overpayment under paragraph (2) is an obligation (as defined in section 3729(b)(3) of title 31, United States Code) for purposes of section 3729 of such title [31 USCS § 3729]." 42 U.S.C. § 1320a7k(d)(2)-(3).

2

31 U.S.C. § 3729.

United States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189, 1200 (10th Cir. 2006). While not yet finalized, the Court also recognized that this holding was not inconsistent with the Centers for Medicare and Medicaid Services proposed rule for Part A & B Medicare participants that has yet to be finalized.

3

31 U.S.C. § 3729(b)(3)("'Obligation' means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.").

4

The Federal False Claims Act currently provides for penalties of up to three times the Government’s damages, civil penalties ranging from $5,500 to $11,000 per false claim, and the costs of the civil action against the entity that submitted the false claims. Further, qui tam relators subject to retaliatory action are entitled to reinstatement with the same seniority status they would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees.

5

While the District Court finds it unnecessary to address the argument, it does note in footnote 13 of its Opinion the Government position that the FCA on its own, apart from the [the Patient Protection and Affordable Care Act (herein, the "ACA")], captures the conduct at issue.

6

7

Kane v. Healthfirst, 2015 WL 4619686, at *13.

While the FCA does provide for reduced damages under 31 U.S.C. § 3729(a)(2), this provision is not applicable once a criminal prosecution, civil action, or administrative action has commenced.

8

United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394 (4th Cir. 2012).

9

For services provided by participating Healthfirst providers to Medicaid-eligible enrollees, no additional payments (other than co-payments) were authorized, such as fee-for-service payment.

9

The Continuum network hospitals that are parties to this suit are Beth-Israel Medical Center d/b/a Mount Sinai Beth Israel, St. Luke's-Roosevelt Hospital Center d/b/a Mount Sinai St Luke's, and Mount Sinai Roosevelt. Long Island College Hospital was not named in the intervenor complaint and was dismissed from Kane's action.

10

Kane ex rel. U.S. v. Healthfirst, Inc.: Inaugural Decision on Identifying Overpayments under the ACA's Report and Return Rule

Kane v. Healthfirst Factual Timeline Late 2005

Healthfirst, a non-profit insurer, enters into Medicaid agreement with the New York Department of Health (NYDOH) limiting Healthfirst reimbursement to NYDOH monthly payments.10

2009

Healthfirst issues erroneous remittance notices to participating providers, including Defendant Continuum network hospitals9, indicating providers may bill secondary payors in contravention of the Healthfirst Medicaid agreement with NYDOH. Continuum submits claims to NYDOH on behalf of network hospitals seeking payment for covered services rendered to Healthfirst enrollees in excess of Healthfirst-NYDOH contractual rates. NYDOH reimburses Continuum network hospitals pursuant to erroneously submitted claims.

September 2010

NY Comptroller's Office (Comptroller) contacts Continuum regarding incorrect billing.

December 2010

Software patch designed to prevent Continuum from improperly billing secondary payors employed; Continuum tasks Kane with determining the scope of the improperly billed claims.

January 2011 February 2011

Comptroller tells Continuum of additional erroneous claims.

Kane sends email to Continuum management summarizing more than 900 potentially overpaid claims, 465 of which were paid by NYDOH. The summary included the vast majority of erroneously submitted claims. Continuum terminates Kane four days after his email was sent to Continuum management. Continuum reimburses NYDOH for 5 improperly submitted claims.

March 2011 until February 2012

Period over which Comptroller continues its analysis and notifies Continuum.

April 2011

Kane files qui tam action.

April 2011 until March 2013

Period over which Continuum reimburses NYDOH.

June 2012

Civil investigative demand issued June 2012, in response to which, Continuum reimburses NYDOH for more than 300 claims.

May 2014

Kane amends complaint.

June 2014

Complaint unsealed due to government intervention.

Nashville Bar Journal - September 2015

19

First Tennessee Partnership Provides Membership Opportunities by:

Joycelyn Stevenson

Take a moment to ask yourselves two questions: (1) why are you a member of the Nashville Bar Association (“NBA”) and (2) have you encouraged a nonmember or former member to join or renew this year? I joined the NBA immediately after I started practicing law and it has been one of the best professional decisions that I have made. The educational, professional and networking opportunities provided through membership in the NBA are immeasurable. Hopefully most if not all of you reading this article were also able to answer the first question. I am writing to provide you with an exciting incentive to affirmatively answer the second question.

First Tennessee Bank (“First Tennessee”), as a title sponsor and the official bank of the NBA, recognizes the importance of providing membership opportunities to attorneys in this city. To that end, First Tennessee has graciously agreed to pay NBA membership dues for one year for attorneys who open a new checking account with the bank (see Terms and Conditions below).

The efforts by First Tennessee Bank over the past two years to get to know our membership, to sponsor happy hours and to increase our membership numbers have been tremendous. The NBA board has worked tirelessly this year to develop a strategic plan as well as action steps to secure the future of the organization and to increase its relevancy to our membership and beyond. We need the support and help of our current members in order to increase our potential for future growth. To the extent you have not encouraged a nonmember or former member to join, please use this First Tennessee Bank opportunity as a way to promote the NBA and to broaden the scope of our reach in the legal community.

Here are the steps necessary to take advantage of the First Tennessee Bank one-time dues payment: Ask the following questions to potential members: € Are you a nonmember or inactive member of the NBA? € Would you like to become member for Fiscal Year 2016 (either through a new membership or renewal)?

If they answered “yes” to any of the questions above, instruct them to do the following: 1. Open checking account with First Tennessee Bank.

• Present this printed offer at a financial center in

Middle Tennessee when you open your checking

account.

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Nashville Bar Journal - September 2015

• If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct de posit.

• You will be able to present the voucher

to the NBA. The Association will then

return it to First Tennessee Bank, and

the bank will send payment to the NBA

for one year of membership.

2. Join a committee, utilize NBA CLE, attend the monthly happy hours, and provide feedback regularly to the NBA board on how we can improve bar services.

Thank you for your commitment and service to the NBA. If you happen to see a member of the First Tennessee Bank team at the next happy hour, CLE or bar event, please extend a warm thank you to them as well and hopefully brag that you have informed at least three people about the NBA partnership with First Tennessee. Joycelyn Stevenson is a shareholder with Littler Mendelson, P.C.and President-Elect of the Nashville Bar Association.

Terms and Conditions: Offer valid beginning with the enrollment of Nashville Bar Association membership year beginning November 1, 2015. Offer expires March 31, 2016. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is nontransferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by June 30, 2016.

FSR: Use promo code NBADUE. ©2015 First Tennessee Bank National Association. Member FDIC.

Nashville Bar Journal - September 2015

21

Disclosure Maria Spear has launched a new intellectual property law practice, Spear Intellectual Property Law (or “Spear IP”), where she will counsel entrepreneurial clients, creators, and businesses, in connection with copyright, trademark, technology, and other intellectual-property related legal issues. Prior to forming Spear IP, Spear was Contracts Manager at Country Music Television and an attorney at Everhart Law Firm, where she focused on intellectual property and entertainment related transactional work in addition to litigation.

Julie Watson Lampley, a partner with Butler Snow, has been named to the Nashville Health Care Council 2015-16 board of directors.

Lampley is the Assistant Practice Group Leader of Butler Snow’s healthcare regulatory and transactions group and a member of the firm’s executive committee. She focuses her practice on health care law, commercial contracting, mergers and acquisitions, and antitrust law.

Rob Dodson has joined Dickinson Wright PLLC as a Member.

Dodson focuses his practice on the construction and energy industries. In addition to his primary construction practice, Dodson also has significant experience in general commercial litigation, insurance and products liability litigation. A member of the Tennessee Association of Construction Counsel, he advises general contractors, owners and manufacturers regarding construction law issues at all levels and stages of the construction process.

Slade Sevier has joined Dickinson Wright PLLC as a Member. Sevier focuses his practice on litigation and transactions related to construction, real estate and development and general business. In addition to general business disputes, Sevier’s litigation practice primarily consists of various types of construction and real estate related disputes and issues, including construction and design defects, 22

Nashville Bar Journal - September 2015

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News

n

nonpayment, building codes and licensing, liens, prompt pay, leases and land purchases, property lines, copyright infringement, eminent domain, property tax appeals, personal injury and consumer protection act claims (TCPA).

Deputy General Counsel (Legal Counsel) for the U.S. Department of Defense, Acting General Counsel and Principal Deputy General Counsel of the Department of the Navy, and a partner in the law firm of Trauger, Ney & Tuke.

Richard “Trammel” Hoehn Jr. has joined Butler Snow, He will practice with the firm’s government relations group. Hoehn previously served as legislative liaison for the Tennessee Department of Finance and Administration, where he managed all legislative matters and liaisons for the department. During his time with the Department of Finance and Administration, Hoehn helped to draft and lobby legislation, including the 2013 Accountability Act and TennCare Fraud legislation.

Sean C. Wlodarczyk has joined the law firm of Cornelius & Collins, LLP as an associate. Wlodarczyk’s practice is focused on litigation, with an emphasis on commercial disputes and the health care industry. Prior to joining the firm, Mr. Wlodarczyk practiced at Anderson & Reynolds, PLC, and clerked for the Honorable Thomas W. Brothers in Nashville. He received a Doctor of Jurisprudence from Vanderbilt University Law School in 2011, where he was an editor for the Vanderbilt Journal of Entertainment and Technology Law.

Susan Neal Williams has joined Bone McAllester Norton PLLC in its Labor and Employment Law and Litigation and Dispute Resolution practices. Williams honed her litigation skills in product liability, insurance coverage, automobile wrecks, medical malpractice, gas explosions, roadway design and engineering cases. She graduated from Wake Forest University School of Law and is a member of the Harry Phillips American Inn of Court and the Lawyers Association for Women.

Aubrey Harwell, Jr., co-founder, member and managing partner of Neal & Harwell, PLC, has been recognized as 100 premier trial attorneys in the state of Tennessee by The American Academy of Trial Attorneys (AATA). This is a distinction reserved for attorneys who have established themselves through their professionalism and excellence in service. Since its inception in 1971, Harwell has served as managing partner of Neal & Harwell, PLC. His practice focuses on commercial litigation, white-collar criminal defense and crisis management. The firm is widely regarded as one of the nation’s premier litigation firms and has been involved in several high profile cases throughout the years.

Paul Ney, partner in the Nashville law firm of Patterson Intellectual Property Law, P.C., has been appointed to the LaunchTN Board of Directors. LaunchTN is a public-private partnership focused on supporting the development of high-growth companies in the state of Tennessee with the ultimate goal of fostering job creation and economic growth and is an initiative of the Tennessee Technology Development Corporation. Ney is a registered patent attorney and has vast experience in law and public service that includes serving as Director of the Nashville Davidson County Mayor’s Office of Economic and Community Development,

Patricia Head Moskal, partner at Bradley Arant Boult Cummings LLP, has been recognized

by Benchmark Litigation among its Top 250 Women in Litigation for 2015. Moskal was the only Tennessee attorney named to the list.

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org

The third annual NALS Silent Auction raised more than $4,700 for Legal Aid Society on July 16. The event, attended by Nashville Mayor Karl Dean, featured 80 auction items from nearly 60 local businesses and organizations including the Gaylord Opryland Resort, the Tennessee Performing Arts Center and the Nashville Predators. The funds raised will go directly to Legal Aid Society to support its mission to advance justice by providing advocacy and free civil legal assistance to low-income families in Middle Tennessee and the Cumberland Plateau.Â

Welcome New NBA Members!

A.C. Agee

Abby Benson Siprachanh Chanthaphaychith Brenda Gadd Tennessee Bar Association Susanna M. Gattoni Hall, Estill, Hardwick, Gable, Golden & Nelson, PC

2015 NBA PREMIER MEMBERS: Elizabeth A. Alexander Gail Vaughn Ashworth Joe P. Binkley Jr. Jonathan Bobbitt Charles Robert Bone Charles W. Bone Leilani Boulware Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Kenneth Sherman Byrd Kathryn Caudle Mark P. Chalos William T. Cheek III John Ray Clemmons Michael Clemons Dixie W. Cooper Patricia J. Cottrell Virginia Chase Crocker John A. Day Joy Day John Franklin Floyd Grant C. Glassford Charles K. Grant John J. Griffin Jr. William L. Harbison Marian F. Harrison Aubrey B. Harwell Jr. Trey Harwell G. Miller Hogan II Paul T. Housch Margaret M. Huff Michael F. Jameson R. Jan Jennings Jordan S. Keller John D. Kitch William C. Koch Jr.

Irwin J. Kuhn Edward Dodson Lanquist Jr. Thomas W. Lawless Claudia Vettel Levy Randal S. Mashburn Carol L. McCoy Robert G. McDowell Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Dean Newton Mattison C. Painter Gregory J. Pease Tracy A. Powell David L. Raybin Jonathan E. Richardson Edgar M. Rothschild III Maria M. Salas Carolyn W. Schott Thomas J. Sherrard III Emily A. Shouse Saul A. Solomon John T. Spragens Michael G. Stewart James Gerard Stranch IV James G. Stranch III Hon. Aleta Arthur Trauger Irwin Bruce Venick Howard H. Vogel Michael J. Wall James L. Weatherly Jr. Peter Weiss Thomas V. White Larry R. Williams Nicholas S. Zeppos

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services.

Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.

Evelyn McKinney Hill Bradley Arant Boult Cummings LLP* Leighton Linning Casey Leigh Miller Bradley Arant Boult Cummings LLP* Jim Miller

Erik Peterson Ben Powers The Collins Law Firm, PLLC* Ross R. Ramsdale Tyler Ricker Marie Scott Neal & Harwell, PLC* * 100% Club

Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.

August Volunteers:

Helen Cornell Gina Crawley Chris Hugan Tom Lawless Doug Pierce To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@nashvillebar. org or 242-9272. Pro Bono credit does apply and dinner will be provided.

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

Nashville Bar Journal - September 2015

23

Classifieds

OFFICE SPACE

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www.nashvillebar.org

GERMANTOWN Office space for rent. Family association of attorneys in general practice. Restored historic house near Bicentennial Mall and the new Sounds stadium in Sulphur Dell. Large office available, and virtual office offered. Shared conference room, kitchen with free onsite parking. Call 615256-6681, ext 3

ADVERTISER INDEX Elder Law Practice of Timothy L. Takacs .................................................... Back Cover ABA Retirement Funds .................................................Inside Front Cover IPSCO ..................................................Inside Back Cover The National Academy of Distinguished Neutrals.............................11

The Nashville Real Estate Market is exploding!

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Join the NBA LRIS! LRIS MARKETS & ADVERTISES YOUR SERVICES

NBJ ADVERTISING: Contact NIKKI GRAY at (615) 242-9272 or nikki.gray@nashvillebar.org Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word.

Available Sections: Expert Witness, For Sale, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, Vacation Rentals and Accounting.

Display Advertising: Full and Half Page color and black & white advertisements. Quarter and Eighth Page black & white advertisements. Please contact us for a display advertising quote.

When you join the NBA LRIS, your practice benefits from the LRIS’ marketing and advertising programs. Currently, LRIS reaches potential clients through advertising in the Yellow Pages in various telephone directories throughout the state. Clients are referred to us through a variety of sources including the courts, Office of the Attorney General, employee assistance programs, other Bar Associations and the Social Security Administration. Also, our on-line presence attracts clients nationwide.

JOIN NOW CONTACT: Wendy Cozby, LRIS Coordinator (615) 242-9272 | wendy.cozby@nashvillebar.org The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.

CLE EASY PASS

VISIT THE NBA'S CAREER CENTER & GET STARTED: Job Seekers:

Employers:

- Place your job in front of our highly - Search for & quickly apply to great, qualified members relevant jobs - Search our resume database of qualified - Set up Job Alerts so you are immediatecandidates ly notified any time a job is posted that - Manage jobs and applicant activity right on matches your skills or interests our site - Create an anonymous job seeker profile - Limit applicants only to those who are qualified or upload your anonymous resume so employers can find you - Fill your jobs more quickly with great talent - Access job searching tools and tips

http://careerwebsite.com 24

Nashville Bar Journal - September 2015

GET YOUR NBA CLE EASY PASS AND GO! COLLECT FREE CLE

WWW.NASHVILLEBAR.ORG ADVERTISE IN THE NBJ CONTACT: Nikki Gray (615) 242-9272 | nikki.gray@nashvillebar.org

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In 1969, I was protesting for peace.

Now that I’m caring for elderly loved ones, I’d give anything for peace of mind.

If you’re a child of the 1960s, your may have watched your parents care for one or more grandparents in your home. If you’re hoping to provide the same kind of care to your parents but don’t know how you will manage given the competing demands of work and family, help is available.

(615) 824-2571 Toll-Free: (866) 222-3127

At Elder Law Practice of Timothy L. Takacs, we know that aging and long-term illness raise difficult legal, financial and personal care questions.

Our innovative Life Care Planning process helps you respond to every challenge with confidence throughout the long-term care journey.

Join the elder care revolution.

Family Website: www.tn-elderlaw.com

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