September 2023 - Medical Association of the State of Alabama

Discussions with Decision Makers: Justice Jay Mitchell

Posted by Christina Flack on September 15, 2023

Justice James L. “Jay” Mitchell was elected to the Alabama Supreme Court in 2018.

Before serving on the Supreme Court, Justice Mitchell was an accomplished litigation attorney with Maynard, Cooper & Gale (now Maynard Nexsen). During his time in private practice, he tried a number of complex cases to verdict, successfully handled appeals, and obtained favorable settlements for clients. He was rated as one of the top litigators in the United States and Alabama, and received the highest possible rating for professional ethics. He also served on Maynard, Cooper & Gale’s executive committee, helping to lead strategic and growth initiatives for the firm.

Can you tell us a bit about your early life and upbringing? Where were you born and raised?

I was born in Mobile and did my early growing up in the Wiregrass, where my parents are from. My father was a salesman and my mother was a teacher and stay-at-home mom.
When I was 10, my dad took a new sales job that moved us to Homewood. Like my two younger siblings, I went to middle school and high school in Homewood. We attended Covenant Presbyterian Church (PCA), where my dad played the piano each Sunday.
I’m thankful that I was raised in a home with strong values and a lot of love and encouragement (though my brother and I did get into our fair share of scrapes as kids!).

What motivated you to pursue a career in law and ultimately run for office?

I had no lawyers on either side of my family and did not know much about law beyond what I read in John Grisham novels and saw in “A Few Good Men” back in the 90s.
But in the January term of my sophomore year at Birmingham-Southern, I interned at the law firm of Maynard, Cooper & Gale in Birmingham. I would go to their offices in the morning, then head back to campus in the afternoon for basketball practice. I thought what the lawyers at Maynard did seemed interesting – but more importantly, I just really liked the people there and was impressed with how much the lawyers seemed to enjoy working with each other and their clients.
The firm was kind enough to let me keep coming back to work in the summer and on holiday breaks when I was in college. I would summarize depositions, do basic research, and run documents to the courthouse. Eventually, I decided to go to law school – and they hired me to work there as a summer associate both of my summers. It wasn’t difficult for me to decide to go practice law there after law school!

Where did you go to law school and what did you do before serving on the bench?

I graduated from the University of Virginia School of Law, where I met my wife Elizabeth, a proud Auburn graduate. We got married before our third year of law school and both graduated in 2002.
Not long after passing the bar, I began practicing law at Maynard in Birmingham. I practiced there for 16 years and became a shareholder. I also served on the management committee of the firm during a time of rapid growth.
I thoroughly enjoyed my time as a lawyer – working with clients and being in the trenches with my law partners and colleagues gave me great professional satisfaction.

Could you share some highlights from your legal career before becoming a judge? What type of law did you practice?

I handled all kinds of cases. My specialty was commercial litigation, where a business would be sued for money damages based on a contract or some other type of claim. But I also handled construction, environmental, securities, real estate, products liability, and other types of cases – which prepared me well for serving on the Supreme Court, because we decide a wide variety of cases and are constantly having to toggle between different areas of the law.
Probably my most vivid memory as a lawyer was serving as lead counsel for a national radio company during the “sports talk radio wars” in Birmingham. As radio listeners may recall, other suitors did their best to get Paul Finebaum to leave WJOX while he was under contract and take his renowned call-in show elsewhere. We engaged quickly on behalf of the company, got embroiled in some fast-moving litigation, and ultimately kept Finebaum and his right-hand people at home. Of course, once Finebaum’s contract expired, he moved on to help launch the SEC Network, where his brand has become bigger than ever. Some great stories from those days!

Could you walk us through your approach to analyzing a complex legal case?

I believe it’s our job on the Supreme Court to get the law right in the cases that come before us. When it comes to analyzing a complex case, that means digging in on the law, understanding the procedural nuances of the case, reviewing and digesting the factual record, and announcing our Court’s ruling in a way that is clear to the parties and the public. That takes time, energy, and occasionally some robust discussion with my colleagues. But I believe it’s absolutely critical that we commit ourselves to finding the correct answers under the law and expressing those answers well.

In medicine, physicians go through residency training after medical school and often cite mentors that impacted and made him or her the doctor they are today. Have there been individuals who’ve had a significant impact on your legal career or your life in general?

Absolutely. The lawyers at Maynard who trained me in how to practice law – Tony Miller, George Lynn, and Jim Priester – had a big impact on me and shaped how I approach thorny legal questions. As did Boots Gale, who has a remarkable ability to size up tough situations and provide wise counsel. And Kirby Sevier and Drayton Nabers are longtime personal mentors of mine who taught me how to be a professional in a way that honors God and people.
As far as being a judge, Justices Antonin Scalia and Clarence Thomas have had a huge influence on me. Both of them exemplify what it means to uphold the Constitution and the rule of law, while holding the line against judges who try to subvert the law by interjecting their own policy preferences into rulings.

What is the most rewarding aspect of serving on the Alabama Supreme Court for you personally?

Working with my law clerks. These are sharp, young attorneys – many of whom are fresh out of law school – who come and work with me for a year before launching their legal careers. They include the best and brightest students from Alabama and Cumberland, as well as graduates of Harvard, Chicago, Virginia, NYU, and other great law schools across the country. My law clerks keep me in teaching mode and sharpen me as a judge.
I’m pleased to say that Justice Clarence Thomas has hired three of my clerks to work for him at the United States Supreme Court – which is a huge honor for them and I believe is a testament to the quality of work that we’re doing together at the Alabama Supreme Court.

What is the one thing you would like to say to physicians in Alabama?

The courts really matter and have a big impact on your profession – how you practice medicine; the legal exposure that you face as you do your job and manage your office; and how much you pay in insurance premiums.
I would encourage you to get engaged and support judges and judicial candidates who are committed to doing two things. First, when it comes to legal texts – whether a public text like a constitutional provision or a statute or a private document like a contract – a judge should be committed to interpreting and applying the words on the page faithfully as they’re written. This promotes fair notice to those who are impacted by the law and should minimize surprises for the public.
Second, a judge should have the right outlook when it comes to common-law issues. A number of areas of law fall into the category of “Alabama common law” – which means they aren’t written down in a constitution or a code book, but are developed entirely by the courts. This includes key areas for doctors like torts and property; it also includes the Alabama Supreme Court’s process for reviewing punitive damages. When it comes to common-law issues, you want judges who will be appropriately attuned to how their rulings may impact industry and the overall legal landscape.

Posted in: Uncategorized

New OIG Advisory Opinion Reinforces OIG’s Stance Against Turnkey Contractual Joint Ventures

Posted by Mallory Camerio on September 13, 2023

By: Jessie Bekker, Burr & Forman LLP

The Office of Inspector General (“OIG”) has issued a new opinion with a familiar message cautioning providers against entering into suspect contractual joint ventures.

The OIG’s latest Advisory Opinion examined the Anti-Kickback Statute’s application to an arrangement related to the provision of intraoperative neuromonitoring (“IONM”) services (the “Proposed Arrangement”). As of the date of the Opinion, the requesting entity, an IONM provider, contracted with hospitals and surgery centers to provide the technical component of IONM services, which consisted of one of its neurophysiologists assisting during a surgery with the placement and operation of the IONM equipment. The IONM provider would arrange with a physician practice (“Practice”) to perform the personal component: remote monitoring by a neurologist of the IONM test results. The IONM provider billed its technical component services to the hospital or surgery center; the Practice billed the professional component to patients and their insurers. However, as competition grew fiercer, the IONM provider found itself at risk of falling behind its competitors who offered surgeons more lucrative opportunities, precipitating the Proposed Arrangement.

The Proposed Arrangement

Under the Proposed Arrangement, the IONM provider would assist a group of surgeons working for the hospitals and surgery centers with which the IONM provider contracted in creating a new IONM company (“NewCo”). The surgeon owners would own all of the interests in NewCo, which would contract with the existing IONM provider to provide all billing and collection services. NewCo would then contract with the Practice to provide the professional component of IONM services to NewCo’s clients. Under an agreement with the existing IONM provider, the IONM provider would supply NewCo with all of the day-to-day services, such that NewCo likely would not need to hire any of its own employees. NewCo – not the IONM provider – would contract with hospitals and surgery centers, receiving referrals for services from the surgeon owners, and would bill both the professional and technical components of the services. NewCo would compensate the IONM provider and Practice for their services through a fee, but the IONM provider anticipated NewCo’s profits would be substantial. In essence, NewCo would act as a competitor to the IONM provider with which it contracted, disrupting the IONM provider’s anticipated profits.

Analysis

Generally speaking, the Anti-Kickback Statute (the “AKS”) prohibits the knowing and willful offering, payment or receipt of remuneration to induce, or in return for, the referral of an individual to a person for any item or service reimbursable by a federal health care program, like Medicare or Medicaid. The statute is intent-based and prosecutes a violation criminally. Violations constitute felonies punishable by fines and imprisonment.

OIG has long expressed its disfavor toward contractual joint ventures that exhibit certain factors pointing to their suspect nature. A contractual joint venture exists where a health care provider in one line of business (e.g., Practice) expands into a related line of business (e.g., IONM) by contracting with an existing provider of the related line of business (e.g., IONM provider) in order to provide the new related line of business to the health care provider’s patients without any substantial risk to the health care provider. The Proposed Arrangement, according to OIG, would “present a host of risks of fraud and abuse under the [AKS], including patient steering, unfair competition, inappropriate utilization, and increased costs to Federal healthcare programs.” OIG pointed to several risks raised by the Proposed Arrangement, specifically, that it could result in inappropriate steering of referrals from the surgeon owners to NewCo, the IONM provider, and the Practice of federal health care program business. Certain specific factors led OIG to its conclusion, including that the surgeon owners, as a result of contracting out its day-to-day operations to the IOMN provider, would have no real financial risk while reaping the benefits of the IOMN services provided. Additionally, both the Practice and IOMN provider are established entities that would effectively be forced to compete with themselves as a result of the Proposed Arrangement. Moreover, because the surgeon owners would have a vested interest in NewCo’s success, the OIG concluded that there would be a risk that the surgeon owners would only refer business to NewCo, the IOMN provider and the Practice in order to benefit from the billing opportunity for those services. Accordingly, OIG concluded that the Proposed Arrangement would risk violating the AKS.

Takeaways

The OIG Advisory Opinion highlights its longstanding concern with suspect contractual joint ventures and acts as a reminder to physicians venturing into new business lines of the risk factors that may implicate the AKS. The Advisory Opinion, just like all Advisory Opinions, is applicable only to its specific facts and should not be relied upon as definitive authority in determining the risk under the AKS of any other arrangement.

Posted in: Legal Watch, MVP