Medicare and state health care programs: fraud and abuse; safe harbors for protecting health plans--HHS. Interim final rule with request for comment

In accordance with section 14 of the Medicare and Medicaid Patient and Program Protection Act of 1987, this interim final rule establishes two new safe harbors and amends one existing safe harbor to provide protection for certain health care plans, such as health maintenance organizations and preferred provider organizations. The first new provision protects certain incentives to enrollees (including waiver of coinsurance and deductible amounts) paid by health care plans. The second new provision protects certain negotiated price reduction agreements between health care plans and contract health care providers. Finally, an existing safe harbor has been amended to protect certain agreements entered into between hospitals and Medicare SELECT insurers. These safe harbors specifically set forth various standards and guidelines that, if met, will result in the particular arrangement being protected from criminal prosecution or civil sanctions under the anti-kickback provisions of the statute.     

One for you and two for me: revenue sharing arrangements in charitable healthcare organizations

Charitable healthcare organizations have often borrowed from the methods of their for-profit counterparts in compensating physicians and other business partners. This is done in order to provide needed services to their communities, and to protect their charitable assets by sharing risk and preserving limited capital. One of the most controversial compensation methods in use by such organizations is the revenue sharing arrangement. In use for over thirty years, these arrangements have received close scrutiny and inconsistent treatment by the Internal Revenue Service (IRS) and have been the subject of critics' ire as an impermissible transgression of the fundamental line between charities and commercial enterprises. The author, however, concludes that revenue sharing arrangements serve an important purpose in enabling charitable healthcare organizations to fulfill their missions, that the IRS and the Treasury have now made clear that there is not a higher standard governing their use, and that these arrangements are consistent with charitable operation when an appropriate process and safeguards are in place to prevent payment of unreasonable compensation.     

Physician recruitment after Hermann Hospital

The state of physician recruitment changed after the Internal Revenue Service required Hermann Hospital to publish its closing agreement with the IRS. The closing agreement released the long-awaited IRS "Hospital Physician Recruitment Guidelines." The IRS' recently proposed revenue ruling provides additional insight on acceptable physician recruitment practices as well.     

An empirical analysis of aftermarket transactions by hospitals

Almost all U.S. hospitals procure their equipment through group purchasing organizations ("GPOs"). Some hospitals subject the prices secured by GPOs to a second round of competition in an "aftermarket," in which vendors both on and off the GPO contract compete for the hospital's business. To measure the extent of the potential benefit to hospitals from another round of competition, we analyzed a database of approximately 8,100 aftermarket transactions for hospital capital equipment. The transactions data suggest that hospitals were able to achieve average savings of approximately 10 to 14 percent across the entire database (2001 through 2010) and a savings of 15 percent on average for 2010 data. These savings may be attributable to many factors, including the compensation structure of GPOs.     

Special report on taxation. IRS issues stricter guidelines for audits of tax-exempt hospitals

The new audit guidelines serve as yet another reminder to tax-exempt hospitals that great care must be taken in structuring and documenting business arrangements with physicians and executives so as to withstand scrutiny by the IRS with regard to exempt status. Since increased census and utilization, and enhancement of the hospital's financial position, are no longer acceptable justifications for such activities as physician recruitment incentives (being suggestive of payment for referrals), it is important that hospitals make an effort to ensure that board minutes, recruitment policies, internal memoranda, and other documentation set forth the reasons--other than the benefits to the institution's bottom line--for having entered into such transactions. Hospitals must establish and document a community need for each physician recruited. Hospitals that actively recruit should be armed with studies evaluating recruiting needs in each clinical area, based on objective criteria, taking into consideration managed care contracting needs and the provision of services to the poor and needy. Finally, hospitals should re-examine all joint ventures and other business relationships with physicians to determine whether such arrangements resulted from arm's length negotiation, involve fair market value for goods and services, and conform, insofar as possible, with the Medicare fraud and abuse safe harbor regulations. Under GCM 39862 and the new guidelines, "aggressive" arrangements may not only create exposure under fraud and abuse laws, but could jeopardize the provider's tax-exempt status as well.     

Caracci and the valuation of exempt organizations

In Caracci v. Commissioner, the Internal Revenue Service faced an important test in its application of Excess Benefit Taxes to disqualified persons of a nonprofit corporation that converted to for-profit status. This Article, written by the taxpayers' valuation expert, details the difficulties in the IRS case and demonstrates the reasons for the Fifth Circuit's reversal of the Tax Court's judgment in favor of the IRS. The author concludes with a number of lessons that taxpayers can take from Caracci.     

先公司民事行为的案型归类及责任分配

“设立中公司”是一类特殊的民事主体,特殊性体现于它是一个处于发起人合伙和成立后公司之间的阶段性存续的、具有有限人格的组织。尽管法律未规定设立中公司的法律行为为必须,但是经济上,设立中公司却可以而且应该从事商业交往。在公司设立阶段签订合同的效力,和合同的主体密切攸关;设立中公司订立的合同责任在发起人、设立中公司、成立后公司之间的分配因为采取“意图推定”和“设立中公司责任”大相径庭。     

“推定”和“视为”之语词解读?——以我国现行民事法律规范为样本

立法层面观察,"推定"和"视为"语词频繁适用于我国法律规范中。学界和实务界普遍认为两语词表达的分别是法律推定和法律拟制制度。然而,以我国现行民事法律规范为样本进行分析,却发现"推定"和"视为"语词并非与法律推定和法律拟制相对应:"推定"大多表达法律推定,但也表达法律拟制和注意规定;"视为"大多表达法律拟制,但也表达推定制度和注意规定。立法层面法律推定、法律拟制和注意规定语词适用的混乱状态必将导致司法层面对于"推定"和"视为"语词的解读困境。因此,应当在厘清法律推定、法律拟制和注意规定本质的基础上,用统一、明确的语词进行相应的制度表达。     

The new ASC safe harbor: the triumph of public policy over legal consistency

This Article traces the history of the OIG's use of safe harbors to allow certain activities that arguably violate a literal reading of the Anti-Kickback Statute. The author focuses particular attention upon the development of the ASC Safe Harbor from its genesis through its final issuance on November 19, 1999. The analysis finds legal inconsistency in the regulation in this area, which it attributes to the development of the ASC Safe Harbor being driven primarily by nonlegal, public policy concerns. The Article concludes by suggesting that OIG publicly embrace those policy goals and adopt broader investment-related safe harbors that focus on limiting returns to those attainable in a "fair market."     

IRS General Counsel Memorandum threatens some hospital-physician joint ventures

To defend against the heightened scrutiny of hospital-physician relations expected from the IRS, hospital management should closely examine any activities now conducted with physicians to determine whether each activity, as organized and operated, furthers the hospital's charitable mission of promoting the health of its community, rather than merely enhancing the financial health of the institution itself. Any arrangements that do not appear to satisfy the principles enunciated in GCM 39862 should be examined to see if they should be restructured or dissolved. In structuring new transactions and examining existing arrangements, the following principles should be kept in mind: 1. Transactions should not be premised upon increased utilization or physician referrals. Enhancing or protecting market share, even for the purpose of preserving an institution's presence in the community, will likely no longer be accepted as a justification for pursuing joint venture arrangements. In justifying such ventures, management must distinguish between benefit to the community and benefit to the institution. 2. Transactions whereby existing services or equipment are "spun off" to a hospital-physician joint venture run a serious risk of enhanced IRS scrutiny. 3. Transactions creating or providing new facilities or services should be more favorably perceived, particularly where participants other than the hospital take an active role in managing the venture. Where the hospital is the sole general partner and merely manages what it would have managed had there been no physician investors, the question of why physicians are involved will likely be of greater concern than it has been in the past.(ABSTRACT TRUNCATED AT 250 WORDS)     

Failure by certain charitable organizations to meet certain qualification requirements; taxes on excess benefit transactions--IRS. Notice of proposed rulemaking

This document contains proposed regulations relating to the excise taxes on excess benefit transactions under section 4958 of the Internal Revenue Code (Code), as well as certain amendments and additions to existing Income Tax Regulations affected by section 4958. Section 4958 was enacted in section 1311 of the Taxpayer Bill of Rights 2. Section 4958 generally is effective for transactions occurring on or after September 14, 1995. Section 4958 imposes excise taxes on transactions that provide excess economic benefits to disqualified persons of public charities and social welfare organizations. The proposed regulations clarify certain definitions and rules contained in section 4958.     

明知与刑事推定

对于明知,通常应在行为人具有这种认识的情况下,司法上去认定该明知是否存在,而不是在行为人缺乏认识时,司法上推定其存在明知。主观上的认识因素,存在"确知"(肯定知道)和"确实不知"两极。在这两者之间,根据认识程度的由强到弱,还分别存在"实知"(事实上知道)、"或知"(可能知道)、"应知"(应当知道)3种类型。这些认识因素,绝大多数与推定无关。在司法解释中,大量使用"应当知道"一词,但其中多数属于行为人"实知"的范畴,基本不涉及刑事推定问题。今后,在进行司法解释时,可以把"明知"解释为确知或者实知。只有在个别明显属于推定的场合,保留"应当知道"的表述。对明知进行分级,将其内涵进一步细化,充分考虑了刑事证明责任的负担问题,也有助于司法解释的精确化,其意义不可低估。     

Some stylised facts about cash and black economies in Germany

The currency approach assumes black economies to entail larger cash volumes than those needed for transactions in the official economy. Estimates of this hypothesis use e.g. overall cash data. But, for the case of Germany, the growing DM cash amounts in circulation did not only accompany transactions in the national economy, they also disseminated in hoards and in international uses. A series of adjusted cash figures is derived which shows the maximum dimension of national cash uses either for official or black activities. The adjusted cash figures in general grew less fast than overall cash, private consumption, GDP or M1 respectively. They even diminished relative to sales figures which often are accused of being a basis for black activities. This enhances the presumption that, contrary to some contentions in the literature, black activities during the times of the DM-regime played a minor or even decreasing role in Germany.     

证明困难视阈下的事实认定与刑事推定

从法律效果上看,刑事推定实际具有实体与程序的双重功能。以“主观罪责型”推定与“证明责任型”推定为例,前者改变了构成要件中主观罪责的证明方式,后者则在此基础上,将有限的举证责任转由被告人承担,使其成为刑事推定的不利方。为在不违背罪刑法定原则与无罪推定原则的前提下,充分实现刑事推定所预想的制度目标,不但需要对其基础事实之内容予以严格限定,突出其法定性与可证明性,而且需要明确推定事实与裁判事实之间的合理界分,强调事实认定者的心证对推定结果的可能影响,并在适用前提上,仅将刑事推定作为证明困难处境下的末位选择加以使用,在作用范围方面可将其适当扩大至定罪外的部分量刑情节。在立法选择上,考虑到刑事诉讼人权保障的基本立场,刑事立法应当对刑事推定保持最低限度的容忍态度,尽量减少其创设及适用。     

证据法的理论谜局——“刑事证明责任与推定”学术研讨会综述

本次会议主要围绕"推定的界定及其适用"、"刑事证明责任新问题",以及"证明责任与推定综合研究"三个主题展开讨论,与会专家和学者虽然对推定的具体含义、证明责任的概念以及两者的关系问题存在不同见解,但对于应该在法律上限制推定的范围,以及在刑事司法实践中规范推定的适用等问题,达成了很多共识。证明责任和推定问题本身是证据法上的两大理论难题,这次会议为迎接这个智识上的挑战进行了首次尝试。     

Tax-deductible alcohol: an issue of public health policy and prevention strategy

In 1982 U.S. businesses will spend over $10 billion (12 percent of the total retail alcohol market) on alcoholic beverages which will be consumed by top executives, professionals, and other white-collar employees in a variety of business and personal settings. The Internal Revenue Service, through a series of vaguely defined tax deduction categories, permits these expenditures to be deducted from corporate and individual taxes as "ordinary and necessary" to the conduct of business, costing U.S. taxpayers between $3 and $5 billion annually in lost tax receipts. This article examines the scope and legal underpinnings of the IRS tax expenditure policy; its impact on drinking habits and drinking problems among the nation's business and professional elite; the arguments for permitting the subsidization of corporate drinking habits; reform measures that are available to policymakers; and the barriers to effective implementation.     

A Criminal Injustice System? Sex Offender Suspects and Defendants

The purpose of this paper is to open up a discussion regarding the potential shift from the presumption of innocence to a presumption of guilt regarding those suspected of or charged with sexual offending. It is acknowledged that further investigation is needed and it is hoped that this discussion is one of many. The crux of this paper therefore is that sex offender suspects and defendants potentially find themselves in a criminal injustice system. Whilst the focus is predominantly on ‘victims’ (usually female) and people suspected or charged with sexual offending (usually male) within the criminal justice system in England and Wales the concerns articulated here are not confined to this context. For example such concerns are echoed in relation to the potential injustices occurring on American campuses. This demonstrates that this is a domestic and international situation and a situation that extends beyond the criminal justice system. We argue that what is occurring at home and abroad has to be contextualised with regard to public, media and official attitudes and approaches to ‘victims’, suspects, defendants, sex, sexual consent, sexual offending and a subsequent shift from the presumption of innocence to a presumption of guilt. It is argued that not only is the presumption of innocence undermined by the presumption of guilt regarding suspects and defendants in cases of sexual offending, it is also undermined in England and Wales by the victim personal statement (VPS). The VPS contains and promotes the idea that there is a ‘victim’ and ‘offender’ before this has been legally established in a court of law. These assumptions embodied within the VPS weaken the principle and practice of the presumption of innocence. The safeguard of the presumption of innocence is potentially under threat and the result is an even greater potential for miscarriages of justice and wrongful convictions.     

The Presumption of Innocence and the Human Rights Act

There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.     

论医疗损害侵权行为归责原则的配置

我国现行法上,医疗损害侵权行为采过错推定的归责原则。学界对此问题有四种不同的看法。侵权责任法草案二次审议稿,是否采过错推定,也存在着疑义。笔者认为,二次审议稿的问题在于没有正确处理基础事实和推定事实的关系。在立法论上,应当将医疗损害侵权纳入侵权法的规范体系中。过错责任原则具有道德贬抑性,存在行为安全区。医疗损害侵权行为应当采过错责任,举证责任上则采过错推定。损害是基础事实,过错是推定事实。     

Rethinking the presumption of innocence

This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. It explores the idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable.