Category: Notes

In 2015, Medicare spent $632 billion on health care for America’s elderly (and other covered groups). Medicaid spent another $554 billion to provide health care to America’s needy. The government estimates that improper payments account for as much as 10% of Medicare and Medicaid spending. Given the vast amount of money at stake, and the fact that there is bipartisan support for recovering taxpayer dollars, it is no surprise the federal government has made it a priority to recoup the money lost to health care fraud each year. The results are noticeable: annual recoveries for health care fraud through the federal government’s most powerful anti-fraud weapon, the False Claims Act (FCA or “the Act”), have increased from $932 million in 2000 to a high-water mark of more than $3 billion in 2012. Health care providers now pay millions of dollars to settle allegations that they have committed health care fraud in violation of the FCA. . .

This Note argues for the third approach, namely that overpaid Medicare and Medicaid claims should not be deemed “identified” until a health care provider has actual knowledge of their existence and amount. The Note is organized as follows: Part I introduces the relevant sources of law, including the FCA, the Sixty-Day Rule, and CMS’s regulations implementing the Sixty-Day Rule for Medicare. Part II describes a recent district court decision grappling with the proper interpretation of “identified” in the context of Medicaid overpayments, a situation in which none of CMS’s rules apply. Part III.A discusses how that case might be resolved if it dealt instead with claims under Medicare Part A or B, and thus were subject to CMS’s most recent regulation defining “identified.” Part III.B explains the problems with the existing regulatory scheme established by the FCA and current administrative interpretations of the Sixty-Day Rule. Part IV argues that providers should be required to have actual knowledge of overpayments for overpayments to be “identified.”

Adopted in 1998 with the express goal of curbing undue discrimination in the interstate market for electric transmission, Order No. 888 has been referred to as the single largest step taken by the Federal Energy Regulatory Commission (FERC or the Commission) to foster competition in the market for wholesale electric transmission. Among its key features, Order No. 888 requires a utility within FERC’s jurisdiction to separate its transmission function from its wholesale merchant function and to charge separate rates for each of the services. The Order also requires any public utility that “own[s], control[s] or operate[s] transmission facilities which transmit electricity in interstate commerce to file with the FERC open access transmission tariffs.” These open access tariffs cannot be discriminatory or anticompetitive. Rather, the tariffs must “offer third parties access on the same or comparable basis, and under the same or comparable terms and conditions, as the transmission provider’s use of its system.” . . .

Part I provides a brief historical background of the electric utility industry, with an emphasis on significant changes that occurred prior to the adoption of Order No. 888. It segues through the traditional vertically integrated utility model and the concept of natural monopolies to reach the Commission’s fight against what FERC considers the foremost barrier to competition, undue discrimination. In doing so, Part I contextualizes many of the issues raised by this Note. Part II addresses the current need for reform. It begins by arguing that FERC’s hoarding policy, as described in Order No. 888, lacks both clarity and transparency. It contends that with rising mergers and acquisitions activity within the utility industry, FERC should expressly revisit its treatment of hoarding. Part III is concerned with establishing a comprehensive definition for capacity hoarding. Ultimately it defines capacity hoarding as “an electric utility’s retention of transmission capacity when such utility possesses market power or otherwise has an intention to exert market power through its retention of such capacity.” After establishing the definition, Part III concludes by suggesting that FERC adopt a modified use-it-or-lose-it approach to address hoarding.

There is a hole in Fourth Amendment protection that is teetering on the verge of rapid expansion. The omnipresence of technology in the 21st century has made the use of intermediaries necessary for fully participating in society. From sending messages through Facebook to driving past cellular phone towers, many everyday activities involve sharing information about ourselves with the third parties who give us access to new technology. The scope of privacy law, however, has not advanced at a similar pace. In the 1976 case United States v. Miller, the Supreme Court punctured the Fourth Amendment privacy protections set forth in Katz v. United States. In Katz, the Court had extended protection from unreasonable searches and seizures to areas in which a person has a “reasonable expectation of privacy.” Nine years later in Miller, the Court decided that there is no legitimate expectation of privacy in information handed over to third parties (in that case, a bank). The Court asserted that “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” Smith v. Maryland widened this gap in Fourth Amendment protection to include communication information. The Court stated that there is no reasonable expectation of privacy in numbers dialed into phones, since the dialer is aware that the “phone company has facilities for recording this information” and that it does, in fact, record it.

Part I of this Note will discuss the Miller decision and the hole it left in the Fourth Amendment’s protection of financial information left in the hands of trusted third parties. Part II will discuss Congress’s response to Miller in the RFPA. Part III will discuss the cramped interpretation of the RFPA affirmed by the Sixth Circuit, its misapplication of the statute, and policy problems arising from the acceptance of the court’s interpretation. Part IV will discuss statutory injuries and how the ambiguous outcome of the Spokeo case could threaten financial privacy protections generally and those specifically provided by the RFPA. Part V will discuss the proposed solution to the problem.

“Today, in the United States, we have three types of sovereign entities– the Federal government, the States, and the Indian tribes.” The oft- forgotten American Indian nations have inherent sovereignty to govern themselves, by virtue of their existing as cultural and political entities prior to the founding of the United States.3 Federally recognized American Indian nations thus have intrinsic authority and jurisdiction over their internal affairs; tribal governments perform executive, judicial, and legislative functions.

Despite this fact, most of the federally recognized tribes in the United States have not formally published or codified their laws. What is codified is usually out of date and almost never digitized or published in an online forum. The online databases that do contain tribal laws are “incomplete and are often plagued by broken links, outdated laws, unsearchable documents, and unreadable images.” Accessing these laws and applying them in tribal courts is often very difficult, even for attorneys working for American Indian nations with access to whatever databases exist.

The Pine Ridge Reservation, located in South Dakota, provides an all- too-typical example. The Reservation, which is home to the Oglala Sioux Tribe, last formally codified its laws in 1996. Thus, hundreds of enacted ordinances and resolutions that have been passed by the Oglala Sioux Tribal Council have not been included in this codification, which is thus decades out of date. While there is an online database that has collected the ordinances and resolutions passed by the Oglala Sioux Tribal Council since then, this database is organized solely by date and ordinance number and consists wholly of PDF images that cannot be word-searched. Only individuals with permission from the Oglala Sioux Tribe have access to this database, and there is no reporter systematically publishing the decisions made by Oglala courts online.

Part I of this Note will focus on the ways that Tribal Law Online could be beneficial to American Indian sovereignty. It discusses how codification and digitization will improve Supreme Court recognition of American Indian sovereignty, benefit American Indian nations economically, help them obtain more favorable legislation from Congress, and aid American Indians in shaping their governments to more accurately reflect their cultures. Part II will address potential criticisms of codification and digitization, including fears that allowing nonmembers to codify Oglala law could cause the laws to less accurately reflect Oglala interests, that codification itself could involve the imposition of Anglo-American jurisprudential norms, and that codification could harm existing Oglala customary law. This Note will ultimately conclude that Tribal Law Online and projects like it could potentially advance American Indian sovereignty to a degree heretofore unseen since the founding of the United States.