ABA Health eSource - Your link to the ABA's Health Law Section
December 2009 Volume 6 Number 4
Health Law Section News  December 2, 2009

Healthcare Reform |
Free Podcast Series
Welcome to the first in a series of podcasts on Healthcare Reform Legislation, presented by the Health Law Section's Access to Healthcare Task Force. Click here for more information or to download the first podcast.

Please share your questions for future podcasts by clicking here.

December 10, 2009
Ethics for Healthcare Attorneys - Multijurisdictional Practice

A Pledge for Change
The ABA Commission on Mental and Physical Disability is asking legal employers to sign "A Pledge for Change," which encourages them to hire more lawyers with disabilities. For more information, please click here.

Interest Group Communication Highlights

Latest Resources & News

HHS Office of Inspector General (OIG)

For more Resources
and News
click here.


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

In September, I alerted you to the wonders of the Washington Healthcare Summit on October 26th and 27th. Now I have to tell you that I told you so. Once again the Planning Committee and its leaders, Robert Friz and Kirk Nahra, assembled an excellent program despite the frenetic fixation of D.C. on healthcare reform. There were many highlights of the program, but we very much appreciated Mark Hayes, the health policy director and chief health counsel minority staff of the Senate Finance Committee, giving some of his very limited time to kick off the program with an update on the state of healthcare reform. Mark’s presentation was followed by a keynote address by Judy Feder from the Georgetown School of Public Policy, which gave us a different slant on the issues that face the House and the Senate in trying to secure healthcare reform. Another highlight was the luncheon presentation by Paul Begala, on the political fallout from healthcare reform, which was both entertaining and objective.

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Health Care Reform:
For “Accountable Care Organizations”
to Work, Fraud and Abuse Laws Must Evolve

By W. Bradley Tully, Esq. and Charles B. Oppenheim, Esq.,
Hooper, Lundy & Bookman, Inc., Los Angeles, CA

While the details remain much debated, it seems likely that some type of healthcare reform legislation will be enacted. Although controversy swirls around the potential benefits and drawbacks of a “public option” and how to fund the cost of coverage for the uninsured, the need to control the growth in healthcare costs is widely accepted and far less controversial. Likewise, there is increasing support for the notion that substantial savings can be achieved through better management of the delivery of healthcare, and it seems likely that new incentives will be created to support decisions for better management of healthcare.

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After HITECH, Business Associate Agreements Impose Substantial Burdens That Are No Longer Necessary
By Mark S. Hedberg, Partner, Hunton & Williams LLP,
Richmond, VA

The terms “business associate” and “business associate agreement” have been an official part of the national healthcare lexicon since 2001, when the federal Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rules”) were published pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). But the “business associate approach” to disclosures of protected health information (“PHI”) by HIPAA’s covered entities that was taken in the Privacy Rules (and then the Security Rules) was not intended to be part of the regulatory fabric - business associates are not mentioned anywhere in HIPAA, and the Secretary of Health and Human Services had no legislative authority to regulate them directly. Accordingly, the regulators applied a patch to cover this gap in legislative authority “by requiring covered entities to apply many of the provisions of rule to the entities with whom they contract for administrative and other services.” Business associate agreements were the means by which this was accomplished.

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Recent Amendments to the Federal False Claims Act May Provide Whistleblowing Physicians with Greater Protection from Retaliatory Peer Review Proceedings
By Michael J. Hamblin, Frank, Haron, Weiner and Navarro,
Troy, MI

The False Claims Act (FCA) is the federal government’s most effective fraud fighting tool. The Act allows a whistleblower to act as a private attorney general and pursue fraud claims on behalf of the government. The FCA covers fraud involving any contract or program that receives federal funds. Over the last 20 years, the federal government has recovered over $25 billion with the FCA. Section 3730(h) of the FCA provides anti-retaliation protections to whistleblowers. Until it was recently amended, Section 3730(h) provided anti-retaliation protection only to a defendant’s employees. Under the recent Fraud Enforcement and Recovery Act of 2009 (FERA), these anti-retaliation protections were extended to include a defendant’s contractors and agents.

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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 Fraud & Compliance Interest Group

The Healthcare Fraud & Compliance 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 Donald H. Romano, Arent Fox LLP, Washington, DC and Vice-Chairs Robert Anderson, Butler Snow, Jackson, MS; James Sheehan, Office of the Medicaid Inspector General, Albany, NY; Davis W. Turner, Vanguard Health Systems, Inc., Nashville, TN and Joel Wakefield, Coppersmith Schermer Brockelman, Phoenix, AZ.

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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