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Date: June 20, 2012

Law360, June 20, 2012

Law360, New York (June 20, 2012, 2:21 PM ET) -- Stephen D. Rose is an owner with Garvey Schubert Barer in the firm’s Seattle office and chairman of the firm's health care practice. He has more than 25 years of experience representing clients in the health care industry. His practice focuses on Medicare/Medicaid reimbursement, defending healthcare providers during and after government audits, developing and implementing corporate compliance plans, addressing certificate of need issues and assisting hospitals with credentialing and privileging issues. He has also worked for the Washington State Medical Association preparing and presenting educational materials for its membership on the Health Insurance Portability and Accountability Act Privacy Rule and Security Standards and the changes brought about by the Health Insurance Portability and Accountability Act

Q: What is the most challenging case you have worked on and what made it challenging?

A: My most challenging case was The Department of Health & Social Services, State of Alaska v. Alaska State Hospital & Nursing Home Association, 856 P.2d 755 (Alaska 1993), which challenged a cap that was placed on Medicaid payment rates.

The federal law dictated that Medicaid rates needed to be “reasonable and adequate” to meet the costs of an efficiently and economically run facility but did not define any of these terms. It was imperative to put definitions before for the court and have the court agree with each definition being suggested.

The Alaska Supreme Court found the cap placed on payment rates arbitrary and invalid, allowing virtually every longterm care provider in the state to receive increased payments going forward as well as being reimbursed any amounts not paid due to the cap being in place. It was estimated that more than $15 million was reimbursed during a three-year period.

Q: What aspects of your practice area are in need of reform and why?

A: I represent health care providers and think that many of them would like to have more certainty and fewer variables

Q: What is an important issue or case relevant to your practice area and why?

A: The U.S. Supreme Court case on the Patient Protection and Affordable Care Act is one of the most important cases in health care law — ever. It is a once-in-a-lifetime case that will have reverberations throughout the industry. Usually the Supreme Court allows one hour for oral arguments; however, this case had arguments during three full days, and there were not enough seats in the court to accommodate those interested. With 26 individual states in opposition, attorneys who assisted in some of the states’ briefings were forced to camp outside the courtroom the night before and hope to get a seat.

Not only will the decision impact health care in general but will greatly alter the landscape of Medicaid and the relationship between care providers and insurance companies. Many commentators have focused on a question raised by Justice Anthony Kennedy and believe that the decision in this case could fundamentally change the relationship between citizen and the federal government. moving forward. For example, a majority of the cash flow for acute and long-term care providers is dependent on thirdparty payers such as government-sponsored programs (Medicare/Medicaid) and health care insurance. With the Medicare and Medicaid programs being constantly adjusted, usually accompanied by lower overall payments, and health care insurance companies typically following the federal government lead, it is difficult for health care providers to estimate with any degree of certainty what their future payment rates will be or even the basis upon which they will be paid. This uncertainty makes it very difficult for any health care provider to plan for next year much less project three to five years from now. With so much uncertainty, a provider is at greater risk when planning for the future.

Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.

A: The attorney that has most impressed me is Tim Petumenos of Birch Horton Bittner & Cherot. We were recently involved in a case surrounding a certificate of need. While both sides were defending their respective positions vigorously, the negotiation process went very well as both sides worked toward resolution of the clients’ differences. Tim had a clear, succinct writing style and was very sharp in his analysis. He was also very professional throughout the process and understood that protracted litigation would not meet either of our client’s goals.

Q: What is a mistake you made early in your career and what did you learn from it?

A: As happens with many young attorneys, early in my career I would approach every case with an adversarial attitude. I now know to take time to fully explore what the client is seeking and work with the client and analyze the case to reach their goals. This may include being adversarial when necessary or in other situations, may demand working with opposing counsel toward a settlement.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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