Health Care Law Blog

Top 10 Health Care Law Topics for 2012 Revealed

The current issue of AHLA Connections, which is published by the American Health Lawyers Association (AHLA), features a list of the top ten issues affecting the health law field in 2012.  The AHLA Connections “hot topic” list includes issues that our clients are raising with us.  We have covered several of these topics in previous newsletters and blogs and we plan to discuss more in the upcoming months.

Here is the AHLA’s top-ten list:

1. Constitutionality of health care reform

In a highly anticipated case, the Supreme Court will consider the constitutionality of the individual mandate and Medicaid coverage requirement provisions in the Affordable Care Act ("ACA"). The cases have been briefed and the Court has scheduled an unprecedented three days of oral argument in March.  The decision is expected by the end of June.  The issues presented in the case have been discussed in several of our previous blog posts.

2. Accountable care organizations

Now that CMS has issued the Final Rule on the Medicare Shared Savings Program and other federal agencies have published a number of other proposed and final rules, policy statements and notices, the time for dealing with accountable care organizations has come.  We have also discussed ACOs in prior articles and blog posts.

3. Fraud and abuse enforcement: overpayments and self-disclosures

The ACA includes obligations for reporting overpayments under Medicare and Medicaid and a new program for self-reporting Stark violations.  On February 14, 2012, CMS issued a proposed rule regarding reporting and returning overpayments under the Medicare program. Under the new regulation, hospitals and doctors who receive Medicare funds would be required to report and return overpayments within 60 days or face significant damages and penalties.  We will cover the proposed rule in more detail in an upcoming article.

4. HIPAA enforcement

There has been a considerable increase in HIPAA enforcement actions by the Office of Civil Rights and by state Attorneys General.  The civil monetary penalties in some cases have been very substantial, including several in the millions of dollars.  A number of criminal prosecutions have been pursued, including several where the health care providers facing criminal charges did not obtain any financial gain from the unauthorized use of protected health information.

5. Final rule issued on medical loss ratio requirements under healthcare reform

Another ACA provision imposes a “medical loss ratio” requirement on insurers.  HHS issued a final rule in December 2011.  Insurers will need to implement utilization management efforts and administrative expense reviews to comply with the rule.

6. The responsible corporate officer doctrine

Several federal agencies responsible for civil and criminal health care enforcement have been aggressively using the “responsible corporate officer doctrine.”  As we will explain in a forthcoming newsletter article, corporate officers can be held accountable, both civilly and criminally, for corporate violations of numerous statutes affecting public health, safety and welfare.  Under the doctrine, the corporate officer does not have to participate in the violation, and indeed, does not even have to know the violation occurred.  The corporate officer has liability because he or she has responsibility for proper oversight and supervision.

7. State-based health law initiatives

Although most attention has been focused on the ACA, many states, including Michigan, have been very active in looking at new ways to regulate health facilities, providers and insurers and to control the costs of health care.  Moreover, many states are beginning to plan their health care exchanges.  We have discussed the proposed Michigan's Health Exchange in previous articles.  We will continue to report on new developments.

8. Retail health clinics

The number of retail health clinics increased by 11% in 2011.  The expected growth in 2012 is estimated to be around the same as 2011.  For many reasons, “convenience care” clinics have a strong appeal to individuals looking for a low-cost and accessible option for routine medical care.  The operation of retail health clinics raise numerous regulatory issues that will continue to develop.

9. Community health needs assessment

Tax-exempt hospitals will need to pay attention to the “community health needs assessment” required under ACA.  For more on this, see our article on this topic.

10. Sunshine act

The physician payment sunshine provisions of ACA will require drug and medical device manufacturers to disclose to HHS anything of value given to physicians above certain minimum thresholds.  CMS is expected to issue a final rule in the next few months.

If you have any questions regarding these topics, please let me know.

Categories: Compliance, Health Care Reform, Health Insurance Exchange, Regulatory