Chair's Column: Fire on the Mountain
By David H. Johnson, Bannerman & Johnson, P.A.,
Albuquerque, NM

One night in late July I drove home to our house on the northern flank of the Sandia mountain range, which forms the eastern border of Albuquerque. As I stepped out of our car, I was greeted by striking cloud formations drifting eastward illuminated by a full moon. Magnificent skies, night and day, are part of what draws people to move to New Mexico and part of, as well, what has kept Sheila and me in the same house at the end of a dirt road for the past twenty-two years. This night, however, was to be different from all previous nights.

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CMS Proposes Expansion Request Process for Physician-Owned Hospitals Under the Stark Law and PPACA
By Jennifer Rangel and Lindsay Setliff, Locke Lord Bissell & Liddell LLP, Austin, TX

On July 18, 2011, the Centers for Medicare & Medicaid Services (CMS) published a proposed regulation in the Federal Register providing the anticipated exception process to the recent Stark Law prohibition on expansion by a hospital with physician owners or investors (the Rule). As expected, the process will be difficult, if not impossible, for most physician-owned hospitals to meet and most hospitals will be precluded from expanding.

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Lessons from the Bradford Case on Structuring Acquisitions

By Jim Pinna, Hunton & Williams LLP, Richmond, VA and
Elliott Jeter, VMG Health, Dallas, TX

United States ex rel. Singh v. Bradford Regional Medical Center involved a qui tam action brought by physician relators against Bradford Regional Medical Center (“BRMC”) and a local physician group and its physician owners (collectively, the “Physicians”) relating to a nuclear camera sublease arrangement (the “Sublease”) between BRMC and the Physicians. In its opinion, the court concluded that the Sublease created financial relationships between the parties that did not meet an exception under the federal Ethics in Patient Referrals Law (the “Stark Law”) and resulted in prohibited referrals by the Physicians to BRMC under the Stark Law. Central to this conclusion was the court’s determination that payments under the Sublease, which included substantial amounts attributable to a noncompete agreement, took into account the volume and value of referrals by the Physicians and were not fair market value (“FMV”).

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Tax Exempt Issues for Accountable Care Organizations
By Douglas M. Mancino, Hunton & Williams LLP,
Los Angeles, CA

The Medicare Shared Savings Program (“MSSP”) was enacted as part of the Patient Protection and Affordable Care Act (“PPACA”) to promote accountability for care, coordination of services and the development of infrastructure to provide high-quality and efficient healthcare services to Medicare beneficiaries. Providers throughout the country are working diligently to develop shared governance structures that meet criteria specified by the Department of Health and Human Services (“HHS”) to participate as accountable care organizations (“ACOs”) under the MSSP. Many providers are also responding to or anticipating demands for ACOs to enter into shared savings contracts or other incentive payment arrangements with commercial payors.

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Electronic Health Records Incentive Programs:
The Issue of Assignment
By Abigail Wong Grigsby, Hooper, Lundy & Bookman,
Los Angeles, CA

The Health Information Technology for Clinical Health Act of 2009 (“HITECH Act”) created the Medicare and Medicaid Electronic Health Records (“EHR”) Incentive Programs, which provide funding in the form of “incentive payments” to healthcare providers that successfully demonstrate the “meaningful use” of certified EHR technology.

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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

Business and Transactions Interest Group

The Business & Transactions Interest Group focuses on the art and the law of healthcare transactions and business operations.

The IG is led by Chair Jennifer L. Rangel, Locke Lord Bissell & Liddell LLP, Austin, TX and Vice Chairs Christi J. Braun, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Washington, DC; Beth Connor Guest, Waller Lansden LLP, Nashville, TN; William T. Mathias, Ober Kaler Grimes & Shriver, Baltimore, MD and James M. Pinna, Hunton & Williams LLP, Richmond, VA.

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 Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI and editorial board members Claire Castles, Jones Day, Los Angeles, CA; Michael E. Clark, Duane Morris LLP, Houston, TX; Marla Durben Hirsch, Potomac, MD; Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA; Robert T. Rhoad, Crowell & Moring LLP, Washington, DC and Jennifer Tsao, Hernandez Schaedel & Associates LLP, Pasadena, CA.