ABA Health eSource - Your link to the ABA's Health Law Section
September 2009 Volume 6 Number 1
Health Law Section News  September 3, 2009

The ABA Health Law Section proudly announces the
Breast Cancer Legal Advocacy Workshop Toolkit

Interest Group Communication Highlights

Resources & News


Patient Safety Handbook

CDC Public Health Law News

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


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

For those of you who were expecting to see the much more pleasant picture of Vickie Yates Brown at the head of this column, let me explain. Vickie’s term as Chair ended at the ABA annual meeting in August pursuant to our by-laws and she has earned the right to rest for a while. I have the very great honor and responsibility of succeeding Vickie as Chair of the Health Law Section for the coming ABA year from August, 2009 through July of 2010. Unfortunately, I also have to report to you that you will no longer be receiving the delicious recipes that Vickie included in every Chair’s column. We checked with the ABA’s insurance carrier and it indicated that it would cancel the coverage if I attempted to publish any Texas recipes in the column. The chance of food poisoning or serious indigestion was too great.

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HHS and FTC Issue HITECH Breach Notification Rules
By Jennifer Rangel, Partner, and Tammy Ward, Associate,
Locke Lord Bissell & Liddell LLP, Austin, TX

An interim final rule released by the U.S. Department of Health & Human Services (HHS) requires healthcare providers, business associates and other covered entities regulated by the Health Insurance Portability and Accountability Act (HIPAA) to provide notice to individuals, HHS and, potentially, the media when unsecured protected health information is breached. The Federal Trade Commission (FTC) issued a companion breach notification final rule that applies to vendors of personal health records and certain others not covered by HIPAA. These regulations implement provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of American Recovery and Reinvestment Act of 2009.

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Recent Developments for Physicians on
the Antitrust Front

By Sidney S. Welch, Esq. and Meredith M. Burris, Esq.,
Arnall Golden Gregory LLP, Atlanta, GA

The Federal Trade Commission (“FTC”) has issued two decisions in 2009 with implications for physician networks under the federal antitrust laws. On April 13, 2009, the FTC issued its third approval of a network, Tri-State Health Partners, Inc. (“Tri-State”) jointly negotiating with payers based on clinical integration, rather than financial risk. On July 14, 2009, Alta Bates Medical Group, Inc. (“Alta Bates”), a 600-physician independent practice association (“IPA”) based in California, agreed to a consent order with FTC that settled allegations it violated federal antitrust law by fixing prices charged to health care insurers and engaged in an unlawful concerted refusal to deal with Kaiser Permanente Insurance Corporation (“Kaiser”). These two recent decision add to and highlight the importance of FTC scrutiny of physician groups that lack sufficient clinical or financial integration to justify joint fee-for-service contracting activities. Physicians and their counsel should be aware that the FTC has indicated that it will continue to pursue these cases to prevent anticompetitive conduct in the healthcare industry.

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Representing the Disruptive Physician
By Michael J. Jordan, Walter & Haverfield LLP, Cleveland, OH

The controversy over what constitutes “disruptive behavior” continues to smolder. When the Joint Commission (JC) refused to delay implementation of a new standard requiring hospitals to have a code of conduct defining “acceptable, inappropriate and disruptive behavior,” the American Medical Association, which had unsuccessfully requested the JC to delay implementation of the new standard, responded by promulgating its own “Model Medical Staff Code of Conduct” in March 2009. While an entire article could focus on the differences between the JC Standard and the Code of Conduct, the fact that the issue has attracted such attention confirms that disciplinary actions based on allegations of disruptive behavior have markedly increased and generated considerable controversy in the medical community.

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HITECH Business Associates Task Force
Established by the Health Law Section

Last February’s stimulus legislation included not only the promise of funding for electronic health records and related healthcare projects, but the most significant changes to health information privacy and security law since HIPAA. These changes affect not only healthcare organizations but also their business associates – including lawyers.

Under the new law, the Health Information Technology for Clinical and Economic Health (HITECH) Act, HIPAA regulatory jurisdiction has been extended to expressly include business associates. As of February 2010 business associates will be required to comply with the HIPAA security regulations and a number of other requirements, and every business associate contract will have to be amended to become consistent with the new law. One set of requirements, mandating security breach notification to individuals affected by unauthorized access to protected health information, will become effective September 23, 2009.

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Physician Issues Interest Group

The Physician Issues Interest Group focuses on issues relating to joint ventures, Stark Law and fraud and abuse, practice management arrangements, medical staff issues, medical malpractice insurance issues, credentialing issues, HIPAA, and other issues relevant to attorneys who represent physicians.

The IG is led by Chair Sidney Summers Welch, Arnall Golden Gregory LLP, Atlanta , GA and Vice-Chairs Deirdre Golden, Grosse Pointe, MI; Charles M. Key, Wyatt Tarrant & Combs LLP, Memphis, TN; Paul A. Race, Southern University Law Center, Baton Rouge, LA and Julian Rivera, Brown McCarroll LLP, 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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