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Administrative

Administrative – Medicare/Medicaid Provider – Civil Practice – Preliminary Injunction – Subject Matter Jurisdiction – Due Process (access required)

Marion Nursing Center, Inc. v. Sebelius Even though there is an ongoing administrative review as to whether the plaintiff-nursing home’s status as a Medicare/Medicaid provider should be terminated, this civil action -- in which the nursing home asserts that it has a due process right to a hearing before its status is terminated -- is wholly collateral to the administrative process. Accordingly, the exhaustion requirement of 42 U.S.C. § 405(g) is properly excused, and the court has subject matter jurisdiction over plaintiff’s claim.

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Administrative – Providers Have Viable Challenge to Virginia COPN (access required)

Colon Health Centers of America LLC v. Hazel, Sec’y of Virginia Health & Human Resources A district court erred in dismissing a Commerce Clause challenge by out-of-state medical providers to Virginia’s requirement for a Certificate of Public Need prior to opening certain facilities in Virginia; the 4th Circuit affirms dismissal of the providers’ challenges under the 14th Amendment, but reverses dismissal of the Commerce Clause claim.

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Administrative Tort/Negligence – False Claims Act – Stark Law – Medicare & Medicaid Claims – Physician Contracts – Advice of Counsel – Treble Damages & Civil Penalties (access required)

United States ex rel. Drakeford v. Tuomey Even though defendant relied on the advice of counsel in entering into contracts with physicians, since (1) Kevin McAnaney, the former Chief of the Industry Guidance Branch of the Office of Counsel to the Inspector General of the Department of Health and Human Services, warned defendant that the contracts were problematic; (2) defendant’s counsel attempted to influence McAnaney in favor of defendant; and (3) defendant terminated McAnaney and directed him not to prepare a written opinion, a reasonable jury could have found that, once defendant decided to disregard McAnaney’s remarks, defendant possessed the requisite scienter for a violation of the False Claims Act.

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Administrative – Social Security – Disability Claim — Headaches – Evidence (access required)

Smalls v. Colvin Although plaintiff points out that there was no discussion of evidence in the record showing that she had made “four visits in one year to the emergency room due to migraine headaches,” the administrative law judge cited medical evidence that plaintiff’s “neurological examinations were unremarkable.” Moreover, the ALJ found that plaintiff was controlling her migraines with medication. Therefore, substantial evidence supports the ALJ’s finding at step two that plaintiff’s headaches were not sufficiently severe

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Administrative – Social Security – Disability Claim – HIV Symptoms – Available Jobs – Contradictory Evidence – Medical Evidence (access required)

Stephens v. Colvin The vocational expert testified that plaintiff could perform the jobs of “marker” and “cleaner”, but both jobs require “frequent handling” according to the Dictionary of Occupational Titles, and the administrative law judge determined that plaintiff could only perform “occasional bilateral handling.”

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Administrative – Constitutional – First Amendment – College Newspapers – Alcohol Advertising (access required)

Educational Media Co. at Virginia Tech v. Insley, Comm’r : The 4th Circuit strikes Virginia’s regulatory restriction on alcohol advertising in college newspapers; because the advertising ban is not appropriately tailored to Virginia’s stated aim of combating underage and abusive college drinking, the contrary judgment of the district court is reversed.

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