Health Care Lawyer Blog

As a health care attorney, I frequently receive calls from potential clients involving violations of the Health Insurance Portability and Accountability Act (HIPAA). Many times, either through neglect or oversight, a client’s protected health information (PHI) is improperly disclosed – a pharmacist may dispense a client’s medication to another individual, a billing statement may go to the wrong address, or a physician may disclose a patient’s health information under the mistaken belief that a patient authorized the same.

Many times the violations can be particularly upsetting, especially if the information disclosed reveals that a patient has a sexually transmitted disease, if adoption records are involved, or if the information was disclosed to an undesirable third party like an employer or an estranged family member.

Regardless of the nature of the violation, clients who feel their medical privacy has been jeopardized usually have one question – what can I do?

What can I do?

First, it is important to understand that HIPAA does not currently include a private right of action for privacy violations. This means that an individual does not have a right to file a lawsuit against an offending party simply because his/her PHI was improperly disclosed.

Depending on the nature of the violation and resulting harm, a client may be able to bring a tort-based cause of action against an offending party under the common law for a privacy violation. However, such cases are generally not viable unless a party is able to demonstrate legitimate emotional and/or financial harm. One common example is where a health care provider discloses sensitive health information, such as details about a sexually transmitted disease or HIV/AIDS, to a patient’s employer or family, thereby causing the patient to be terminated or ostracized.

After the jump - other remedies

Continue reading " HIPAA Helper: What Every Patient Needs To Know About Privacy Rights " »

PPACA, HITECH, HIPAA, HCPCS. While the health care industry is uniquely full of acronyms, expect one to become a new buzzword in the coming months - ACOs. An abbreviation for "Accountable Care Organizations," ACOs were established as part of this year's health reform bill (PPACA) as a new way to decrease costs and increase health care providers' ability to exchange and share electronic patient information.

What exactly IS an ACO?
Simply put, an ACO is a group of health care providers - primary care physicians, specialists, hospitals, and nursing facilities - that have grouped together to provide comprehensive patient care. The appeal of ACOs lies in the fact that participating providers can receive monetary awards for meeting certain quality criteria such as improved patient outcomes, low hospital readmission rates, streamlining the cost of care, etc. Essentially, if ACO participants can figure out ways to cut the costs of care, they can participate in the subsequent gainsharing. There is a risk, however; ACOs who fail to meet certain goals will be subjected to monetary penalties.

Unique Considerations
While health care providers may jump at the chance to join an organization that will seamlessly allow them to exchange and receive patient health information, physicians who join ACOs may need to make costly up-front payments in order to obtain the requisite technology and software to do so.

Additionally, it is still unclear how a health care model that relies on in-network referrals - with the opportunity to profit from the same - will fit into the current fraud and abuse landscape. Notably, regulations like the Stark Laws and Anti-Kickback Statute have traditionally prevented such arrangements. It is anticipated that an exception will have to be carved out in order to allow ACOs to function as intended. Similar challenges may also be raised with respect to anti-trust issues.

Finally, since ACO members are jointly accountable for care, any physician seeking to join an ACO may want to vet his/her future cohorts carefully.

For more information about ACOs, contact an experienced health law attorney.

Following several judicial victories for the 2010 Patient Protection and Affordable Care Act ("PPACA"), a federal judge ruled yesterday that the health reform law is unconstitutional and "goes beyond the historical reach" of Supreme Court precedent limiting federal regulation of commercial activity.

The opinion written by Judge Henry E. Hudson, who was appointed to the federal bench by George W. Bush, was issued in response to a lawsuit filed by the Commonwealth of Virginia challenging the constitutionality of PPACA. The law requires all American citizens to obtain health insurance coverage by 2014 or face monetary penalties.

During oral arguments held in October, Hudson commented that the law would give Congress "boundless" authority to force Americans to "buy an automobile, to join a gym, to eat asparagus." (The remarks about joining a gym and eating asparagus are ostensibly aimed at PPACA's wellness provisions, which encourage - but do not require - healthy eating and physical fitness.) In his opinion, Judge Hudson held that PPACA requires an overly-broad reading of economic activity which "lacks logical limitation and is unsupported by Commerce Clause jurisprudence.

However, Hudson's opinion is hardly the end of health reform in America. Several other district court judges have upheld PPACA's constitutionality, including in an opinion issued just two weeks ago by another federal judge in Virginia. As Hudson himself noted, the issue is likely to be eventually presented to the U.S. Supreme Court, which is currently comprised of five justices appointed by Republican presidents, and four appointed by Democratic presidents, including two Obama appointees.

The case is Commonwealth of Virgina v. Sebelius, Case No. 3:10-cv-00188 (E.D. Va.) (Editor's Note: Although opinions are available free of charge on the PACER federal court docket, the opinion could not be accessed at the time of this post.)

PPACA's constitutionality hinges upon a reading of the Commerce Clause, which provides Congress with the power to “regulate commerce…. Among the several states.” The Commerce Clause is generally liberally construed by courts, and case precedent sets out that Congress has the inherent authority to regulate any state-level activities having a “substantial effect” on interstate commerce.

Yesterday the United States Senate unanimously approved a measure that would delay a 25 percent decrease in Medicare payments to doctors for another year. The deal reached by Senate leaders for both parties is now headed to the House of Representatives, and then to President Obama for signature.

Where is the money to stop the cuts going to come from? Good question. Back when PPACA was enacted in March, the legislation included making cuts to Medicare to pay for the costs of extending health care coverage to millions of uninsured Americans. Now, lawmakers are using the Medicare savings to pay for - what else - Medicare. The extra money will be made up by tightening the rules for tax credits which will be extended to families to help pay for coverage.

Lawmakers were forced to re-direct PPACA funds after groups such as the American Medical Association protested the cuts and claimed that as many as two-thirds of doctors would stop taking new Medicare patients. In light of the rapidly aging population - not to mention the ever-present need for physicians to somehow keep their practices up and running - there is skepticism over whether such worst-case scenario would actually occur.

Medicare coverage for wellness visits and other preventative services will be enhanced under the newly-released 2011 Medicare Physician’s Fee Schedule ("PFS").

The new PFS incorporates many of the mandates imposed by this year’s health reform bill, which emphasizes preventative medicine and wellness as a strategy to combat high costs of care. Starting January 1, 2011, beneficiaries will be able to obtain many preventive screenings and services free of charge, including any co-pays or deductibles.

Some of the new services to be offered to beneficiaries free of charge include:

- An annual “wellness visit,” where physicians will be able to update a patient’s care plan, screen for impairments, obtain information such as height, weight and blood pressure, and coordinate other tests and screenings based on the patient’s medical/family histories.

- Screening tests for various cancers, such as annual mammograms for women 40 and older, and one baseline mammogram for women between 35 and 39; pap tests and pelvic exams, annually for women at high risk for cervical or vaginal cancers and biannually otherwise; annual prostate cancer screening tests (excluding digital rectal examinations) for men over 50, and colorectal cancer screening tests (excluding barium enemas) generally for individuals over 50, except for colonoscopies which have no minimum age requirement.

- Diabetes screening tests for beneficiaries with hypertension, history of abnormal cholesterol and triglyceride levels, obesity, or a history of high blood sugar. However, diabetes self-management training services remain subject to coinsurance and deductibles.

- Cardiovascular disease screening blood tests (but not electrocardiograms) to test cholesterol, lipid and triglyceride levels are fully covered once every five years.

- Bone density tests, smoking cessation counseling, and medical nutrition therapy for individuals with diabetes, kidney disease or a kidney transplant.

- Additionally, under a National Coverage Determination issued in August of 2010, Medicare will fully cover HIV testing for high-risk populations.

- Vaccinations for pneumonia, influenza and hepatitis B

Physicians who treat Medicare beneficiaries should expect to see a sharp increase in requests for these types of preventative services in 2011. For more information about the 2011 PFS, contact an experience health care attorney.