Humana's McCallister Sees Industry Consolidation

June 21 (Bloomberg) -- Michael McCallister, chief executive officer of Humana Inc., talks with Bloomberg's Shannon Pettypiece about the outlook for consolidation among health insurers and the effects of the U.S. health-care overhaul.
Humana, the second-biggest seller of Medicare managed care plans and prescription drug plans, owns more than 300 clinics in 40 states after acquiring Concentra Inc. in December. (Source: Bloomberg, June 21, 2011)    Video here
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U.S. Health-Care Law Is Upheld by Appeals Court as High Court Clash Looms

A federal appeals court upheld President Barack Obama’s health care overhaul, rejecting arguments that it violates the Constitution by requiring Americans either to buy insurance or pay a penalty.
The Cincinnati-based court today by a 2-1 vote turned aside a challenge to the legislation by the Ann Arbor, Michigan-based Thomas More Law Center, a Christian-based public interest law firm, which contended Congress exceeded its constitutional power in imposing the individual mandate. (Source: Bloomberg, June 22, 2011)
More.

Bills Introduced  

HR 2363 (Price, R-GA), to establish performance-based quality measures, to establish limitations on recovery in health care lawsuits based on compliance with best practice guidelines, and to provide grants to states for administrative health care tribunals; to Energy and Commerce. CR 6/24/11, H4573.


HR 2376 (DeGette, D-CO), to amend the Public Health Service Act to provide for human stem cell research, including human embryonic stem cell research, and for other purposes; to Energy and Commerce. CR 6/24/11, H4574.

Notices

On 6/24/11, the Employee Benefits Security Administration announced amendments to interim final regulations, effective 7/22/11, implementing the requirements regarding internal claims and appeals and external review processes for group health plans and health insurance coverage in the group and individual markets under provisions of the Affordable Care Act. Comments are due 7/25/11. FR37208.

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Foreign Corrupt Practices Act: Central District of California Rejects Argument that State-Owned Corporations Can Never Be "Instrumentalities" of Foreign Governments

Foreign Corrupt Practices Act: Central District of California Rejects Argument that State-Owned Corporations Can Never Be "Instrumentalities" of Foreign Governments

By Iris E. Bennett, Jessie K. Liu and Sean J. Hartigan  Posted: June 16, 2011 in Business Law Today

"A recent judicial decision has now addressed, in part, the government's interpretation and provided some guidance for how to assess whether a state-owned or state-controlled company can be considered an "instrumentality" of a foreign government and thus whether such a company's employees are "foreign officials." In a rare FCPA case that has gone to trial against a company and individuals, the U.S. District Court for the Central District of California issued on April 20 a written opinion in United States v. Noriega et al., 2:10-cr-01031 (the Noriega Opinion), addressing the issue of whether a state-owned entity is always outside the FCPA's reach. Because of the posture of the defense motion, the court was not asked to address when such an entity actually is within the definition of "instrumentality," but only if there was no conceivable set of factual circumstances in which that could be proved. The court found:

• That a foreign state-owned or state-controlled corporation can be a government "instrumentality" within the meaning of the FCPA, and therefore that an employee of such a corporation can be a foreign official within the meaning of the statute;
• That the following characteristics can be considered in determining whether any particular state-owned or state-controlled corporation is a foreign government "instrumentality" under the FCPA:
• Whether the entity provides a service to the citizens of the jurisdiction;
• Whether key officers and directors are, or are appointed by, government officials;
• Whether and to what extent the entity is financed through government appropriations;
• Whether the entity is vested with and exercises exclusive or controlling power to administer its designated functions; and
• Whether the entity is widely perceived and understood to be performing official (i.e., governmental) functions."

More.

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Poor Writing Has Legal Implications: Lawyer’s Motion Objects to Opponent’s Use of Possessives

Lawyer’s Motion Objects to Opponent’s Use of Possessives

Posted in ABA Journal Law News by Debra Cassens Weiss on June 15, 2011

A Missouri lawyer is taking aim at his opponent’s legal drafting skills in a motion that criticizes the “long-winded” allegations and use of apostrophes.
Springfield lawyer Richard Crites represents a probation officer accused in a civil suit of harassing and humiliating a former teacher who pleaded guilty to statutory rape in 2009. Crites’ motion criticizes Anissa Bluebaum, the lawyer who filed the civil suit on behalf of ex-teacher Alison Peck, the Springfield News Leader reports in a story that quotes from his motion.
"This petition is the worst example of pleading that the defendant's attorney has ever witnessed or read," Crites wrote the a motion seeking clarification of the allegations. He included an eight-page list of questions. More.
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Fla. Federal Judge Throws Out Copyright Suit Against Nelly Furtado, Timbaland

"The magistrate, Judge Edwin Torres, threw out Kernal Records Oy's claim that its song "Acid Jazzed Evening" was the basis for parts of Furtado's hugely popular 2006 album "Loose."

Torres on Tuesday approved a motion by Miami-based Timbaland, whose real name is Timothy Mosley, and Furtado, for summary judgment and refused to allow the Finnish group to seek an overdue copyright and amend its complaint." More.  from Julie Kay Daily Business Review, June 13, 2011

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Fla. Couple Ready to Seize Bank of America Furniture After Winning Foreclosure Fight

Posted in ABA Journal Law News on Jun 7, 2011 6:48 AM CDT By Debra Cassens Weiss
A Florida couple fighting a mistaken foreclosure called 25 law firms before they found a lawyer willing to take their case.
Finally Warren and Maureen Nyerges hired Todd Allen, who won their foreclosure fight and obtained a court order for payment of $2,500 in attorney fees, report the Associated Press and the Naples Daily News. When the bank didn’t pay, Allen got a judge’s permission to seize assets.
On Friday, Allen showed up at a Bank of America branch office with a moving truck and sheriff’s deputies, ready to seize furniture to pay the debt, the story says. An hour later, the branch manager had written a check.  More.


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Health law, insurance coverage, appeals with a sprinkling of gorgonzola

Sixth Circuit expresses concern over health care reform law

A federal appeals court in Cincinnati expressed concern Wednesday over the sweeping health care reform law championed by President Barack Obama, especially the requirement that Americans purchase health insurance in coming years or face financial penalties. 

The case could turn on either a broad reading of congressional power to regulate the health insurance market, or more mundane procedural issues. It is one of 30-some legal challenges nationwide to the health care reform effort, an issue that is certain to ultimately reach the Supreme Court, perhaps by year's end.  More 

1st Circuit: Anti-kickback violations can underpin False Claims Act cases

The National Law Journal

June 2, 2011

The June 1 ruling in U.S. ex rel. Hutcheson v. Blackstone Medical Inc. reversed a March 2010 dismissal of the complaint for failing to identify a materially false or fraudulent claim under the FCA. The 1st Circuit has determined that anti-kickback statute violations can form the basis of a False Claims Act case.   More

 Jovine v. Abbott Laboratories, Inc. ,(S.D.Fla.)

Torts - Assuming shotgun complaint was not dismissed, negligence claim against infant formula manufacturer was adequately alleged.

Assuming consumers' "shotgun" complaint was not dismissed for incorporating by reference all allegations for each subsequent claim, the consumers adequately alleged a plausible class action claim for negligence, under Florida law, against the manufacturer of infant formula products recalled due to contamination with insect parts and larvae. The consumers alleged that the manufacturer owed a duty to consumers to use reasonable care to ensure that the products were not adulterated, contaminated, injurious to health, or otherwise unfit for consumption, that the duty was breached by failing to exercise reasonable care in formulating, manufacturing, marketing, advertising, distributing, and selling the products, and that damages were suffered as direct and proximate result of the breach when consumer's infant digested a defective product and became ill as result.

Approved by the Governor May 26, 2011.

2011 Fla. Sess. Law Serv. Ch. 2011-61 (S.B. 2144) (WEST)

MEDICAID--STANDARDS

Approved by the Governor May 26, 2011.

An act relating to Medicaid; amending s. 400.23, F.S.; revising the minimum staffing requirements for nursing homes; amending s. 408.815, F.S.; requiring that the Agency for Health Care Administration deny an application for a license or license renewal of an applicant, a controlling interest of the applicant, or any entity in which a controlling interest of the applicant was an owner or officer during the occurrence of certain actions; authorizing the agency to consider certain mitigating circumstances; authorizing the agency to extend a license expiration date under certain circumstances; amending s. 409.904, F.S.; repealing the sunset of provisions authorizing the federal waiver for certain persons age 65 and older or who have a disability; repealing the sunset of provisions authorizing a specified medically needy program; eliminating the limit to services placed on the medically needy program for pregnant women and children younger than age 21; amending s. 409.905, F.S.;

FL LEGIS 2011-61

Property: 11TH CIRCUIT: INSURER'S POLICY SAYS POSSESSION IS 9/10 OF THE LAW, Aydin & Co. v. Jewelers Mut. Ins. Co., 21 No. 33 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage May 27, 2011

An insurer owed no coverage when a jeweler lost over $300,000 in high-priced merchandise while traveling by plane because the jewelry was not in his custody as required by the policy, the 11th U.S. Circuit Court of Appeals has ruled. The unanimous panel affirmed that Jewelers Mutual Insurance Co.'s policy with Aydin & Co. explicitly limited the insurer's liability when jewelry left the retailer's Atlanta store.Therefore, Jewelers Mutual did not breach its contract when it denied coverage.

Medical Information: HEALTH NET'S, IBM'S NEGLIGENCE COMPROMISED MEDICAL DATA, SUIT SAYS, Bournas v. Health Net, 21 No. 33 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage May 27, 2011

Health Net Inc. and IBM face a class-action lawsuit seeking $5 million in damages over the loss of computer storage devices that held the medical histories, financial data and Social Security numbers of 2 million people. Alana Bournas' class-action complaint in the U.S. District Court for the Eastern District of California alleges that the insurer and IBM breached their duty of confidentiality and negligently allowed the release of highly personal and confidential information of millions.

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