ABA Health eSource
April 2010 Volume 6 Number 8

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

David HilgersWow, they actually passed it! Despite all the bad odds and dire predictions, the first major overhaul of the healthcare system, for better or for worse, has passed. Whatever your opinion about reform, it is clear that healthcare lawyers will spend a substantial amount of time over the next several years trying to understand the legislation and how it will affect their clients and their practices. As I have indicated several times in this column, the Health Law Section has been preparing a series of teleconferences that will break down the legislation’s component parts in an effort to improve our education on this reform. The first teleconference, " Healthcare Reform: Enough Politics, Let’s Prepare for the Future!" in this series will take place on April 20.

However, it is clear that once we explore this 2,000-plus pages in detail, there are going to be many unanswered questions and numerous concerns raised by the drafting. Already, there are conflicts in the language that are irreconcilable. Consequently, in my future columns, I am going to try to include at least one of the anomalies, conflicts, or concerns hidden in the legislation. I encourage you, to the degree that you find any in your searches through the legislation, to e-mail them to me at dhilgers@mailbmc.com and I will include them in the column. I think there is enough gold in that mine to keep me busy for several years.

To start the parade of anomalies, I will refer you to the physician ownership section in 6001 of the Patient Protection and Affordable Care Act (i.e., the Senate Bill). This provision creates a great deal of confusion about the effective date of the physician ownership prohibition. In Section 6001 amends subsection (d)(3) of the Stark Act stating that a hospital must meet the requirements described in subsection (i)(1) of that Act within eighteen months after the date of statutes enactment. However, the provisions of (i)(1) state that one requirement to be met is that the hospital’s Medicare provider agreement must be obtained before December 31, 2010. A second requirement mandates that the hospital cannot have any more beds on the day after the enactment than it had on “such date.”

These conflicting dates create a substantial amount of confusion about the effective date. What happens to a hospital that has its provider agreement before the enactment date but is in the middle of construction on the date of enactment? Is that hospital required to not complete the expansion? Can hospitals that do not have their provider agreement on the enactment date continue to construct their hospital and expand it as long as it is complete before December 31, 2010? How do you reconcile the 18-month after-the-date-of-enactment deadline that seems to govern the entire provision? I am definitely confused and could use some clarification if anyone has it.

This is just the first example of many potential issues that I think we will find as we go through the bill. I look forward to following these trails with you. Stay tuned.

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