Health Care Law

Hospitals Fail to Adequately Protect Electronic Patient Data

June 9, 2011, 11:01 AM

The Office of Inspector General (OIG) stated that Centers for Medicare & Medicaid Services (CMS) oversight and enforcement actions for Health Insurance Portability and Accountability Act (HIPAA) Covered Entities are not sufficient to ensure compliance with the HIPAA Security Rule. One purpose of the Security Rule is to ensure that electronic patient health information sent between entities is secure from attack or compromise. The OIG audited seven hospitals throughout the nation and found 151 vulnerabilities in systems and controls, 124 of which were identified as high impact. Such vulnerabilities could allow outsiders or hospital employees to access patient information without the hospitals knowledge. Although each of the seven hospitals had implemented some security measures, none had complied with the administrative, technical, and physical safeguards of the Security Rule.

HHS to Require Justification of Insurance Rate Increases

June 3, 2011, 2:07 PM

On May 19, 2011, the Department of Health and Human Services (HHS) announced that health insurance providers will need to justify rate increases of 10% or more starting September 1, 2011. The new rule will require any such increases to be reviewed by independent experts, primarily at the state level, but also at the federal level if states do not possess the resources or authority to review rates. Insurance companies will also be required to provide easy to understand information to consumers as to why their rates are going up and to post that information on the Affordable Care Act website.

AMGA Members Reject Proposed ACO Rule

May 27, 2011, 10:53 AM

The American Medical Group Association (AMGA) recently announced that the vast majority of its members would not enroll as an Accountable Care Organization (ACO) if the Centers for Medicare and Medicaid Services (CMS) do not significantly overhaul the program as laid out in the proposed rule released by CMS on March 31. A survey of AMGA members revealed that 93% would decline to participate due to many concerns including the minimum savings requirements and the levels of risk that ACOs would have to assume. Overall, the AMGA found that the proposed rule is overly prescriptive, operationally burdensome, and the incentives are too difficult to achieve to make this voluntary program attractive.

FTC/DOJ Joint Policy Statement on ACO Antitrust Enforcement

May 19, 2011, 11:18 AM

In order for Accountable Care Organizations (ACOs) to function properly, ACOs will undoubtedly need to engage in certain activity that the federal government would otherwise deem to raise some antitrust concerns. The Federal Trade Commission (FTC) and the Department of Justice (DOJ) are the agencies charged with enforcing the federal antitrust laws in this country and in anticipation of the release of the ACO Proposed Rule, the FTC and DOJ worked together to develop a plan with respect to antitrust enforcement in the ACO context. The result was a jointly issued statement released on March 31, 2011 regarding the agencies collective position on antitrust enforcement in the ACO context. For those interested in viewing the joint statement, click here. The agencies are seeking public comment with respect to the joint statement and such comments are due on or before May 31, 2011.

75% Participant Board Requirement

May 12, 2011, 3:52 PM

Furthering the discussion of Accountable Care Organization (ACO) governance issues, the ACO Proposed Rule requires that 75% of an ACOs governing body must consist of ACO participants. Each ACO participant must choose an appropriate representative from within its organization to represent the participant on the governing body.

ACOs on a Two-Sided Risk Model

May 3, 2011, 3:27 PM

In continuing our series covering the issuance of the Accountable Care Organizations (ACOs) proposed rule, this post will discuss the two-sided risk model included in the proposed rule. To the surprise of many practitioners, the proposed ACO rule included a lower than expected shared savings percentage for ACOs and introduced a mandatory two-sided risk model during the third year of the three-year ACO contract.

Guidance for Public Comments on ACO Proposed Rule

April 6, 2011, 4:14 PM

As previously promised, this post will provide guidance for interested parties to comment on the ACO proposed rule as well as the respective other documents issued simultaneously with the proposed rule.

CMS Issued Proposed Rule on ACOs

April 5, 2011, 3:37 PM

On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) issued the proposed rule to establish Accountable Care Organizations (ACOs) under the Shared Savings Program. The 428 page proposed rule is available at

EHR Incentive Payment Programs

March 28, 2011, 12:05 PM

As mentioned in our previous post, this post will address the incentive payment programs for the implementation and meaningful use of Electronic Health Records (EHRs). The Health Information Technology Economic and Clinical Health Act of 2009 (HITECH) authorized incentive payments for the adoption and meaningful use of certified EHR technology. Medicare and states Medicaid programs will provide incentive payments to eligible professionals, eligible hospitals, and Critical Access Hospitals (CAHs) that demonstrate meaningful use of certified EHR technology.

Shared Savings Program for ACOs Part II

March 11, 2011, 12:19 PM

The previous post set forth the current state of the shared savings program that will be utilized by Accountable Care Organizations (ACOs). As a follow-up, this post will expand upon the previous posts nuts and bolts explanation of the system, by use of two examples so that the readers can have a better real-world understanding of the systems benefits.

Shared Savings Program for ACOs Part I

March 4, 2011, 11:39 AM

Our last couple of posts provided an overview of Accountable Care Organizations (ACOs) and introduced the concept of the shared savings program that ACOs will be permitted to participate in. This post aims to provide additional information with respect to the shared savings program, with the caveat that we are all still waiting for the proposed regulations to be released to shed more light on these issues, which may change or alter the calculations and framework discussed in this post.

Accountable Care Organizations Overview Part II

February 25, 2011, 12:12 PM

As mentioned in the previous post, this overview of Accountable Care Organizations (ACOs) is intended to lay the foundation for a more comprehensive discussion in future posts over the next several weeks. The previous post set forth the organizations that may become an ACO and the types of requirements an ACO must meet. This post will address how an ACO will qualify for shared savings and discuss the standards for quality performance.

Accountable Care Organizations Overview Part I

February 22, 2011, 10:46 AM

Accountable Care Organizations (ACOs) will play an instrumental role in reforming the health care delivery system under The Patient Protection and Affordable Care Act (the PPACA). ACOs are designed to facilitate coordination and cooperation among healthcare providers to improve quality of care for Medicare beneficiaries and reduce unnecessary costs. Although the Centers for Medicare & Medicaid Services (CMS) is expected to issue the final rules on ACOs in the near future, this post and the next several will help lay the foundation for a more in-depth discussion upon issuance of the final rules.

Changes to the Delivery Side of Health Care Under the PPACA

February 14, 2011, 3:17 PM

The Patient Protection and Affordable Care Act (PPACA) has the goal of expanding health care access to 32 million people while it also seeks to contain the growth in health care spending through the establishment of new public programs in addition to the imposition of new coverage mandates. The financial cost structure has been the focal point of much of the PPACA discussion over the past year. However, the delivery side of the healthcare reform equation is of utmost importance as well, and deserves adequate if not equal consideration and discussion.

Another Federal Judge Strikes Down PPACA as Unconstitutional

February 7, 2011, 2:47 PM

On January 31, 2011, Judge Roger Vinson of the United States District Court for the Northern District of Florida issued his ruling in a constitutional challenge to The Patient Protection and Affordable Care Act (PPACA). In his 78 page summary judgment opinion, Judge Vinson struck down the PPACA as unconstitutional and a violation of the Commerce Clause. Perhaps most important in Judge Vinsons ruling was the conclusion that the individual mandate, which requires all Americans to obtain health insurance, is unconstitutional and inseverable from the remainder of the PPACA. Thus, the effect of Judge Vinsons ruling, if not overturned on appeal, would be to strike down the entire PPACA rather than simply invalidating the individual mandate. This case is undoubtedly on its way to the United States Supreme Court and we will continue to monitor the progress of this landmark constitutional law case.

Cost of Affordable Housing for Seniors & Heath Care

January 25, 2011, 11:36 AM

What will the cost be to the taxpayer? According to a Congressional Budget Office Cost Estimate of November 9, 2010, the direct government spending may be relatively small in comparison to the expansion of the housing program, with the anticipated direct spending of $5,000,000 and discretionary costs of $4,000,000 over the 2011-2015 period and $9,000,000 over the 2011-2020 period. These projections are, of course, made with assumptions that may or may not come to be over time. The report also notes that there will be additional costs to owners of properties or projects that receive funding from the additional reporting requirements imposed by the Act. --Paul W. Gerhardt

Affordable Housing for Seniors & Heath Care

January 19, 2011, 10:23 AM

What does affordable housing for seniors have to do with health care? Plenty. Since 1977, the Senate Special Committee on Aging has been a permanent forum for study, evaluation and consideration of issues affecting our nations elderly. A quick review of the Committees website at tells you that they have been a key participant in annually reviewing Medicare performance and providing oversight of the administration of laws important to the well-being of the elderly, among other activities. The Committee references the findings of the Commission on Affordable Housing and Health Facility Needs for Seniors in the 21st Century when noting that there will be an estimated 730,000 more senior housing units needed by 2020. This is where healthcare meets housing.