ABA Health eSource - Your link to the ABA's Health Law Section
February 2010 Volume 6 Number 6
Health Law Section News  February 5, 2010

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Chair's Column
By David W. Hilgers, Brown McCarroll, L.L.P., Austin, TX

Healthcare reform: its déjà vu all over again. Once again we are in limbo. Once again a monumental effort to change our healthcare system may dissipate into the netherworld of failed legislative history. After months of negotiation, argument and political maneuvering, we have a transformational reform structure detailed in two similar but different bills; one from the House and one from the Senate. Yet the twists of political fate have left the outcome of this effort extremely uncertain. Because of this slight political shift in the division of the Senate and the arcane and restrictive rules of Congress, the passage of global health reform has become increasingly unlikely since the middle of January. However, even if these bills fail, the impact of this legislative effort will resonate for years. Within the provisions of this legislation are a treasure trove of healthcare concepts and programs that will likely form the basis of healthcare legislative and regulatory efforts for the next several years.

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More Incentive To Comply with HIPAA and HITECH: The New “Meaningful Use of Electronic Health Record” Rules
By Barbara J. Zabawa, Whyte Hirschboeck Dudek S.C.,
Madison, WI

As if the holidays and looming February 17, 2010 deadline for HITECH was not enough, the federal Department of Health and Human Services (DHHS) issued two inter-related rules regarding the adoption of electronic health records (EHRs) on December 30, 2009 to further encourage health care entities to comply with HIPAA privacy and security rules. Both rules stem from requirements imposed upon DHHS in the American Recovery and Reinvestment Act (ARRA), signed into law on February 17, 2009.

“Meaningful Use” Rules

The first set of rules begins to define what qualifies as “meaningful use” of EHRs. Meaningful use of EHRs is important for eligible health care providers (such as non-hospital based physicians and hospitals) who wish to receive financial incentives from the Medicare or Medicaid programs for adopting EHRs. Specifically, eligible providers must be a meaningful EHR user for the relevant EHR reporting period in order to qualify for the incentive payment for a payment year. Starting in 2011, these incentive payments can amount up to $44,000 for physicians and possibly millions of dollars for hospitals over the course of a four-year period.

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Supreme Court Denies Review of Fourth Circuit Opinion Affirming HCQIA Immunity
By Travis G. Lloyd, Buerger, Moseley & Carson, PLC,
Franklin, TN

Effective peer review is an essential tool for improving healthcare quality. Congress acknowledged as much when it enacted the Health Care Quality Improvement Act of 1986 (HCQIA), which provides immunity to peer review bodies where certain conditions are met. Yet questions frequently arise as to how hospitals and other healthcare facilities should administer peer review processes to satisfy these conditions and preserve immunity while at the same time dealing with medical staff problems expeditiously. A recent decision by the United States Court of Appeals for the Fourth Circuit, Wahi v. Charleston Area Medical Center, affirms the strength of HCQIA immunity and provides some helpful guidance to hospital and medical staff leaders. Now, following the Supreme Court’s January 19th denial of a petition for writ of certiorari in the case, the Fourth Circuit’s decision stands as one of the most important peer review decisions post- Poliner.

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Did you know membership in an interest group is FREE with your Health Law Section membership?

Did you know your membership in the ABA Health Law Section qualifies you for free membership in up to three interest groups of your choice? Interest groups, which are comprised of twelve practices areas within health law, make significant contributions to the Section's programming, publications and legislative initiatives. The interest groups also provide an excellent opportunity for you to interact with and have access to some of the most outstanding lawyers in the legal community. You can enroll on our webpage by clicking here. If you have any questions or need more information, please contact Simeon Carson at Simeon.Carson@americanbar.org.


Healthcare Facility Operations Interest Group

The Healthcare Facility Operations Interest Group addresses topical, cutting edge issues which are the focus of fraud and abuse prevention, investigations and prosecutions.

The IG is led by Chair Tracy Powell, Sherrard & Roe, PLLC, Nashville, TN and Vice-Chairs Jacqueline C. Kingsolver, Catholic Health Initiatives, Erlanger, KY; Neil Kunkel, LifePoint Hospitals Inc, Brentwood, TN; Conrad Meyer, Chaffe McCall LLP, New Orleans, LA and Kathy Poppitt, Cox Smith, Austin, TX.

If you would like to join the Interest Group, continue by clicking the following link: Health Law Section IG Sign-up Form.


ABA eSource Editorial Board

The ABA Health eSource Editorial Board is led by Chair Lisa Genecov, Locke Lord Bissell and Liddell LLP, Dallas, TX and editorial board members Michael E. Clark, Hamel Bowers & Clark LLP, Houston, TX; Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI; Marla Durben Hirsch, Potomac, MD and Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA.


Do you want to communicate your ideas to thousands of other members? To contribute a newsletter article on a health law topic, send us your ideas to Simeon.Carson@americanbar.org
The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the ABA or the ABA Health Law Section.
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