Insurers providing health care benefits to federal employees can obtain reimbursement when their insured obtains a tort recovery, despite a state law prohibiting such reimbursement, based on the preemption provision of the Federal Employees Health Benefits Act (FEHBA), pursuant to the U.S. Supreme Court’s decision in Coventry Health Care of Missouri, Inc., fka Group Health Plan, Inc. v. Nevils, issued April 18, 2017.
The decision by the House Leadership to choose not to bring the American Health Care Act (AHCA) to a vote left industry analysts speculating both about the fate of “Obamacare,” and the prospects for narrower reforms. With bipartisan support to reduce prescription drug prices, it appears as though Democrats and Republicans are working on plans to fix drug prices. This tenth article in our series on the effect of a “slow repeal” of the ACA updates our January 12, 2017, article on the pharmaceutical industry and addresses current efforts aimed at reducing drug prices in the U.S.
On March 20th, House Republicans rolled out a number of changes to their bill, the American HealthCare Act (AHCA), seeking to repeal and replace the Affordable Care Act, the healthcare law better known as Obamacare. Although the House Leadership ultimately chose not to bring the AHCA to a vote, this ninth article in our series on the effect of a “slow repeal” of the ACA unpacks the Manager’s Amendment, and offers insights on what may still form the basis for health care legislation.
The U.S. Court of Appeals for the Third Circuit held recently that Title IX of the Education Amendments of 1972 (“Title IX”)—which prohibits sex discrimination in the “education programs or activit[ies]” of entities receiving federal financial assistance—can apply to residency programs at hospitals. The ruling may profoundly impact how hospitals respond to complaints of sex discrimination (including sexual harassment) by resident physicians and necessitate that hospitals comply with federal Title IX regulations and guidance. The ruling also opens the door for residents who experience sex discrimination to sue under Title IX, thereby avoiding the complex administrative exhaustion process required to file a similar claim under Title VII of the Civil Rights Act of 1964, which generally governs sex discrimination in the workplace. For more information on this new development, visit the legal alert authored by Derek Teeter and Lorinda Holloway.
Since the first managed care plans were introduced, relationships between physicians and payers have been rocky. It has not been uncommon for controversies between the two sides to result in lawsuits, contract terminations and regulatory intervention. Both sides recognize that each needs the other to survive — payers must populate their networks with sizeable numbers of physicians, while physicians must contract with payers to get reimbursed for patient care.
The weather has cleared and SXSW is well underway! The HBInnovate team has been sharing its experiences via Twitter and blog, keeping everyone up-to-date on the innovations and creative ideas on display.
Hot at SXSW continues to be healthcare products and services that rely upon a phone or tablet. Everyone sees the tremendous potential phones and tablets have in supporting our health and wellness. One of the most common concerns from healthcare startups has been how to do roll-out products and services compliant with The Food and Drug Administration (FDA).
Given the transformations taking place at every level in healthcare, it is no surprise that the 2017 SXSW Interactive Conference has a big spotlight on the industry. One superstar in the spotlight this year is wearables. The accelerator pitches during SXSW include ones for wearables designed to improve prenatal care and early breast cancer detection, and there is even a presentation on brain wearables to detect stress, improve focus, and even to let you play video games with your brain. That’s right, brain wearables that help you focus and let you play video games.
A little rain can’t stop SXSW. Husch Blackwell attorneys have attended dozens of interesting presentations and met countless innovative minds. We will continue to post live updates on Twitter (@HBhealthcarelaw) and release brief blog posts related to certain presentations throughout the event. With former VP Joe Biden in town to discuss his cancer moonshot today, our focus is precision medicine.
Precision medicine is an innovative approach to medical treatment that takes into account individual differences in people’s genes, environments, and lifestyles. The promise of precision medicine is delivering the right treatments, at the right time, to the right person. The potential of precision medicine is recognized at the highest levels of government. In his 2015 State of the Union address, former President Barack Obama launched the Precision Medicine Initiative (“PMI”), a bold new research effort to revolutionize health and the treatment of disease. Subsequently, Sylvia M. Burwell, Secretary of the U.S. Department of Health & Human Services (“DHHS”), announced the FY 2016 budget would include $215 million for the PMI, with $200 million of this to be used by the National Institutes of Health (“NIH”) to launch the All of Us program, a national cohort of a million or more Americans who volunteer to share genetic, clinical, and other data to improve research. The funds will also be used to invest in expanding current cancer genomics research and to initiate new studies on how a tumor’s DNA can inform prognosis and treatment choices.
Today kicks-off one of Austin’s largest and best-known events, the South by Southwest Interactive Conference. In the spirit of Husch Blackwell’s involvement in several aspects of the conference, this post will touch on emerging health technology and pushing the limits of HIPAA.
New technology is being developed to be used in healthcare settings on a near daily basis. Telehealth, mobile apps, medical devices, implantables, robotics, electronic health records, e-prescriptions, digital pills, and wearables are just a few of the innovations that contribute to a patient’s treatment. There are more ways for people to access medical care, and more ways to produce and share patient data with healthcare providers than ever before. At some point in the development stage, you and your team probably asked questions like these:
- What data are we collecting? Where do we keep it?
- How can we use it? How can we not use it?
- Who owns it? Can we own it?
- Does HIPAA apply to us?
- Are there other laws we need to worry about?
- What if we lose some data?
First things first, a quick primer on HIPAA, the law you’re likely generally aware of. HIPAA is comprised of a privacy component and a security component. The HIPAA privacy rule addresses the confidentiality of certain health information and the HIPAA security rule sets basic security standards for certain health information held or transferred in electronic form. These regulations apply to covered entities and their business associates. Generally, a covered entity is a health plan, a healthcare clearinghouse, or a healthcare provider. A business associate is an individual or entity that creates, receives, maintains or transmits PHI in the course of performing services on behalf of a covered entity. Basically, PHI may not be used or disclosed by a covered entity (or a business associate on its behalf) without patient authorization unless an exception applies. One frequently cited exemption relates to the use and disclosure of PHI necessary to carry out treatment, to obtain payment, or to conduct healthcare operations. When PHI is shared between a covered entity and a business associate the parties execute a business associate agreement that governs the business associate’s use and security of PHI.
Innovative technology is pushing the limits of HIPAA. Companies may encrypt and store data for a covered entity but never have access to it, and companies may act purely as a conduit to connect two hospital systems sharing data but never store or alter the data in any way. Should companies like this be subject to HIPAA? This is a point of contention that the government is trying to clarify. This has been done through guidance issued by Health and Human Services addressing the application of HIPAA to cloud service providers (found here). Further, the OCR has developed an online privacy and security portal for mobile app develops (found here) and HIMSS has developed a mobile health security kit (found here). It will be important to remain aware of further guidance that may be issued by multiple government agencies.
But what if you’re not a covered entity and you don’t have a relationship with a covered entity that makes you a business associate? Just because you have access to a medical data does not necessarily mean HIPAA applies. When someone buys a Misfit fitness tracker off the shelf, the data collected by the wearable is not protected by HIPAA. However, if a person receives a wearable from their physician to track certain data, that information likely is protected under HIPAA. This is an important distinction.
So if HIPAA doesn’t apply, what does? The Federal Trade Commission (FTC) has issued the Health Breach Notification Rule to require certain businesses to notify their customers if there’s a breach of unsecured, individually identifiable electronic health information. This applies to any entity that is not subject to HIPAA, but collects or maintains identifiable health information on an individual. Further, the FTC is becoming very active in enforcing its consumer protection laws against companies for misrepresenting how an individual’s data is used or a company’s failure to adhere to its own data use and protection policies.
Finally, states are able to establish rules more stringent than HIPAA so it is very important to take such laws into consideration. A state may expand the definition of a covered entity or business associate, and may have its laws apply to any entity that has access to the health information of a resident of the state. This may mean that the laws of a state where you don’t have a physical location may apply to you through the data you collect.
On Monday, March 6, 2017, House Republicans released the long awaited proposed legislation to replace the Affordable Care Act (ACA).
The GOP bill, the “American Health Care Act” (AHCA), repeals or significantly changes major portions of the ACA involving the individual and employer mandates, subsidies, and Medicaid expansion, among others. The AHCA, which is already facing political headwinds and healthcare industry objections, has not yet been scored by the Congressional Budget Office (CBO), so the economic effect and the potential change to the number of people covered by health insurance have not been officially quantified. However, the AHCA’s overall philosophy and goals are clear, and it signals areas of concern for healthcare providers and Medicaid expansion States. In this article in our series on the effect of a “slow repeal” of the ACA, this week’s discussion focuses on the significant aspects of the proposed AHCA, potential concerns for healthcare providers, and likely next steps.