It’s well known to health lawyers — or should be — that HIPAA does not include or create a private cause of action for breach of its requirements. This wasn’t changed with HITECH and the recently issued HITECH Megarule.
It appears, however, that state laws allow individuals to make an end-run around this barrier. The U.S. Supreme Court recently denied certiorari in a West Virginia Supreme Court case which held that “common-law tort claims based upon the wrongful disclosure of medical or personal health information are not preempted by” HIPAA. St. Mary’s Medical Center v. R. K., 735 S.E.2d 715, 723 (2012) cert. den. __ U.S. __ (April 1, 2013). The West Virginia Supreme Court had reversed a state appellate court ruling fact that the state common law claims were preempted because they would provide “remedies under state law that are not permitted by… and are rejected by HIPAA.” Id. at 719. Read more
Now that most of the sound and fury about the constitutionality of the Patient Protection and Affordable Care Act (PPACA) seems to have settled down, it might be a good idea to take a look at the changes it brings. While many of these changes may be of interest mostly to health benefits or other specialty practices, changes to the health insurance market should be of some interest to almost any lawyer. After all, they will in some way affect all of our clients — whether businesses, government agencies, or individuals — as well as lawyer and law firms themselves.
The Health Law Section will be exploring these issues over the coming year, including an upcoming CLE on March 22 (stay tuned for registration info). One of the more significant developments in Washington right now is the development of the Washington Health Benefit Exchange. Read more
The American Taxpayer Relief Act (ATRA), passed in the first week of January to prevent the nation going over the “fiscal cliff” (the set of tax increases and spending cuts that would otherwise have automatically become effective), includes several health policy changes.
Significantly, the ATRA forestalls (again) the reductions to physician reimbursement required by the sustainable growth rate program, which adjusts Medicare physician reimbursement. Without this “doc fix,” Medicare reimbursement rates to physicians would have dropped by about 26.5 percent.
The ATRA also served as the death knell for the Community Living Assistance Services and Supports Act (CLASS), the long-term care program included as part of the Affordable Care Act (ACA), as championed by the late Sen. Ted Kennedy. While the Administration had previously announced its intention not to implement the CLASS Act due to its not being financially viable, the program had survived previous attempts to repeal the law.
The ATRA rescinds all funds that were not previously committed for Consumer Operated and Oriented Plans (CO-OPs), a program included in the ACA as an alternative to the “public option.” Funding is eliminated, except for currently obligated funds plus a 10 percent contingency fund of the unobligated funds.
The Act also includes a reported $15 billion in cuts in government outlays, chiefly to hospitals. Included in the payment reductions are: Read more
In 2012, the Legislature passed legislation to regulate medical assistants at both the certification and registration levels. (The medical assistant legislation does not go into effect until July 1, 2013.) Medical assistants will replace the current “health care assistant” profession. The main advocate for the legislation was the Washington State Medical Association (WSMA). For a variety of reasons, WSMA found the existing health care assistant statutes and rules lacking in clarity and breadth. Read more
Does information collected by a hospital to review the qualifications of a physician for admission to medical staff constitute ”peer review” or ”quality improvement”?
In a decision issued September 20, 2012, the Washington State Supreme Court concluded that when a hospital, through its medical staff, initially reviews the qualifications of a physician for admission to its medical staff and for the granting of clinical privileges, it is NOT engaged in peer review or quality improvement activities. Fellows v. Moynihan, et al., No. 85382-7 (S. Ct. Sept. 20, 2012). Therefore, information collected and documents created in the course of this initial appointment and credentialing activity are not protected by the privileges created under RCW 4.24.250 or RCW 70.41.200. Read more