ABA Health eSource - Your link to the ABA's Health Law Section
January 2009 Volume 5 Number 5
Health Law Section News  January 7, 2009
Washington Healthcare Summit

January 15, 2009
Fundamentals of Medical Staff & Peer Review Issues


Patient Safety Handbook

January 22, 2009
Patient Safety and Quality Improvement Act Final Rule


January 28, 2009
Antitrust Basics for Healthcare Lawyers


February 5, 2009
Stark Law Basics


February 18-20, 2009
Emerging Issues in Healthcare Law Conference 2009

(Orlando, FL)

March 12, 2009
Anti-Kickback Law Basics


Interest Group Communication Highlights

Resources & News


New BNA Products

CDC Public Health Law News

CDC Newsletter is a free electronic newsletter published weekly by the Centers for Disease Control and Prevention, Public Health Law Program


Chair's Column
by Vickie Yates Brown, Frost Brown Todd LLC, Louisville, KY

2009 promises to be an exciting time to be a health lawyer. Like many things in life, law is cyclical. Except for occasional statutory and regulatory changes, the area of health law has been fairly static in the last few years. However, it appears that 2009 is the time that health law issues may again be in the forefront and many of us in the industry are expecting substantial statutory changes, including efforts once again at major healthcare reform. These promise to be tumultuous but exciting times for the industry. Change brings opportunity. I see lots of opportunity for lawyers in the area of health law.

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When a Hospital Enters into an Exclusive Provider Contract: Do the Adversely Affected Physicians Have a Right to a Fair Hearing Pursuant to the Hospital’s Bylaws
By Jennifer Jimenez Perez, Broad and Cassel, Miami, FL

It is common practice for both public and private hospitals to enter into exclusive contracts with physicians for the purpose of securing service in specific areas of medicine. To avoid liability related to the consequential effect on the medical staff privileges of physicians currently affiliated with the hospital, hospitals must abide by their existing bylaws as well as the terms of the affected physicians’ contracts. Hospital bylaws typically provide a physician the right to a fair hearing if the physician’s medical staff privileges are adversely affected as a result of decisions made based on the quality of care or competence of the physician. However, hospital bylaws may not address whether the adversely affected physician is entitled to a fair hearing where the decision to enter into an exclusive contract with another physician or group is a managerial decision, not based on the quality of care or competence of the adversely affected physician. Whether a physician will be due a fair hearing in such an instance, the physician and the hospital must look not only to the hospital’s bylaws and the language of physician’s exclusive contract, but also to federal and state court decisions on this issue.

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The Medicaid Premium and Cost Sharing Rule or Medicaid Flexibility Rule
By Priscilla Keith, General Counsel, Health and Hospital Corporation of Marion County, Indianapolis, Indiana

The Centers for Medicare and Medicaid (CMS) issued a final rule implementing the provisions of sections 6041, 6042, and 6043 of the Deficit Reduction Act of 2005 (DRA) and section 405(a)(1) of the Tax Relief and Health Care Act of 2006 (TRHCA). The final rule, known as the Medicaid Premium and Cost Sharing Rule or Medicaid Flexibility Rule, was published in the November 25, 2008 Federal Register and takes effect January 26, 2009. These sections amended the Social Security Act (the Act) by adding a new section, 1916A, to provide State Medicaid agencies with increased flexibility to impose premium and cost sharing requirements on certain Medicaid recipients, specifically addressing the use of non-preferred drugs and non-emergency care furnished in a hospital emergency department. The States’ existing authority to impose premium and cost sharing is found in section 1916 of the Act. The amended rule closely follows what is allowed under SCHIP.

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Business & 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 Matthew D. Jenkins, Hunton & Williams LLP, Richmond, VA and Vice-Chairs Marcelo N. Corpuz III, Walgreens Health Services, Deerfield, IL; Anthony M. DiLeo, Anthony M. DiLeo, APC, New Orleans, LA; Jennifer L Rangel, Locke Lord Bissell and Liddell LLP, Austin, TX, Austin, TX and Roger Strode, McDermott Will & Emery LLP, Chicago, IL.

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, Wachler & Associates, P.C., Royal Oak, 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 through the wonders of cyberspace? To contribute a newsletter article on a health law topic, send us your ideas to Jill.Pena@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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