Pennsylvania Physician Law and Finance Blog

Information for Pennsylvania Physicians

Class Action Complaint Alleges EHR Provisions in Stimulus violate HIPAA

clock July 7, 2009 05:13 by author Dennis Hursh

A registered nurse has filed a class action lawsuit in the Southern District of New York claiming that certain provisions of the American Recovery and Reinvestment Act (“ARRA”) (the new stimulus legislation enacted in February) violate the privacy rules laid out in the Health Insurance Portability and Accountability Act (“HIPAA”) and the federal Privacy Act.

Beatrice Heghmann of Durham, North Carolina claims that, pursuant to ARRA, the White House Office of Health Reform is working with the Department of Health and Human Services (“HHS”) to design a new system that would create electronic health records for millions of Americans by 2014. According to Heghmann’s complaint, this planned system poses a major threat to individual privacy: she claims individuals’ personal health information (“PHI”) could be just a “mouse click away from being accessible to an intruder.”

Heghmann takes issue with ARRA’s provision allowing HHS to determine what constitutes the “minimum necessary” amount of PHI allowed to be disclosed under HIPAA, as well as how best to implement “de-identification” of protected information. According to Heghmann’s complaint, HHS Secretary Kathleen Sebelius is “empowered to totally vitiate the privacy provisions under HIPAA and link medical information contained in Plaintiff’s personal health record directly to Plaintiff and all others similarly situated.” Heghmann argues that the $22 billion earmarked for the electronic registry is merely a vehicle to obtain access to this confidential health care information.

Heghmann is seeking certification for a class of similarly situated individuals and is requesting an injunction to prevent the government from disbursing the $22 billion budgeted for the Electronic Health Records System.

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Selling your Practice to the Hospital

clock July 3, 2009 01:30 by author Dennis Hursh

Here are a few considerations when you are selling your practice to a hospital:

·       Covenant not to compete.  This is really an employment agreement issue, but sometimes they try to stick it in a sales agreement as well.  If you have an established practice, then it does not make any sense for you to turn that practice into the hospital and then agree never to compete with the "hospital's" practice.  Of course, if they are willing to pay you for such a covenant you may want to consider it.

 

·       Patient records.  Hospitals like to pretend that these are worthless assets.  They also like to inform you that they cannot pay for goodwill of the practice because of fraud and abuse laws.  Neither of these assumptions is completely true.  If you are selling these assets, consider what the law would pay you to reproduce them if requested to do so by an attorney.  That may be a reasonable value to place on these pieces of paper.  Some practices do not sell the records.  This makes it easier to "unwind" the transaction later, as long as you did not agree to a covenant not to compete.

 

·       Real estate.  If you own the medical office building where your practice is located, consider if you want to sell it or merely lease it to the hospital.  Here again, it is much simpler to unwind the deal if you can stay in the same location.

 

·       Sell all the assets.  Your practice has many assets beyond the furniture and equipment it uses.  For example, the right to use the telephone numbers of the practice should be worth something.  As noted above, patient records are extremely costly to reproduce, and should be valued accordingly.  In addition, if you have any particularly advantageous agreements (e.g., lease agreements for equipment or real estate) there should be a value attached to your assignment of these agreements to the hospital.

 

·       Accounts receivable.  This is a difficult one.  It is generally easier to retain the accounts receivable and use your billing company to collect the tail.  Valuation of this asset can be tricky, especially since hospitals are notoriously bad at collecting for physician services.

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Update on House Bill 1538

clock June 4, 2009 05:34 by author Dennis Hursh

Scot Chadwick, Director of Legislative Affairs for the Pennsylvania Medical Society, gave me an update on House Bill 1538 (discussed in the last post).  He tells me “we anticipate that the House Insurance Committee will hold a hearing on the bill sometime this year.”

To see the current language of the bill, go to http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2009&sessInd=0&billBody=H&billTyp=B&billnbr=1538&pn=1904

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