Holland & Hart Healthcare Law Blog

VIRGINIA HEALTHCARE REFORM DECISION: TAX OR PENALTY, INDIVIDUAL RIGHTS OR COLLECTIVE RESPONSIBILITY?

      One of the interesting components of the evisceration of the the “Minimum Essential Coverage” provision in the health care reform bill, (“ACA”) by Virginia Federal District Court Judge Henry E. Hudson, recently is his rejection of the government’s assertion that the “penalty” contained in Section 1501 of the ACA for the failure to purchase health insurance was not a viable “excise tax” under the Constitution.  The Taxation Power of the Congress is as broad as any of its enumerated powers.  Article I, Section 8, Cause 1 gives the Congress the power to lay and collect taxes and judicial review of the Congressional power to lay and collect taxes is narrow and limited.

 

VIRGINIA HEALTHCARE LAW DECISION: CAN CONGRESS REGULATE ECONOMIC INACTION?

      Judge Hudson’s decision invalidating Sec. 1501 of the recent health reform bill, the “Accountable Care Act” or “ACA” in Commonwealth of Virginia v. Sebelius, in the U.S. District Court for the Eastern District of Virginia, addresses the key question as to whether Congress can regulate “economic inactivity” under the provisions of the Commerce Clause of the Constitution. The inactivity is of course the action by individuals in not obtaining mandated health insurance under the ACA and the regulation is the imposition of excise taxes upon those who fail to obtain the required insurance. There are no specific precedents that directly address this issue although logical arguments can be made on both sides.

 

YELPING DENTIST BIT BY FEDERAL COMPUTER DECENCY LAW.

Glen Reit, D.D.S. a dentist practicing in Manhattan received a number of favorable reviews from the online consumer reviewing service, “Yelp.”  All was well until an anonymous post by a “Michael S.” described his office as “small,” “old,” and “smelly.”   Judging from the name of the web site, there was an expected short, sharp, painful cry by either the reviewer or perhaps the reviewed. The post described Dr. Reit’s office equipment as “old” and “dirty.”  Dr. Reit leaped to the courts to obtain an injunction requiring the removal by Yelp of the offending review.  He claimed a substantial reduction in patient appointments. Yelp appFarently removed the good reviews and kept the unfavorable review posted for a while. 

FTC WORKING WITH CMS ON ACO ISSUES BUT SAYS ACO CLINICAL INTEGRATION SHOULD PASS ANTITRUST SCRUTINY

 

 It was raining here in Washington Wednesday, but the FTC is sunny about the compatibility of FTC guidance on clinical integration of health care providers and the thrust and aim of ACO healthcare delivery systems.  Marcus H. Meier, Assistant Director for theHealth Care Division, Bureau of Competition, Federal Trade Commission, said at the National Forum On Clinical Integration in Washington, D.C., that it  was likely that any organization that met the spirit and substance of a federally accepted Accountable Care Organization would also likely meet the qualifications for  clinically  integrated care organizations that would pass muster for group price negotiations.

 

Physician Rebates on Pharmaceuticals Inducements or Volume Discounts?

 

    Can physicians be swayed in the prescription of drugs by volume purchase discounts that return substantial rebates to them on highly expensive drugs?  In an article in the New York Times this week, (Pollock, “Secret Rebates Offered on Costly Eye Drug, November 3, 2010”) a Times Reporter explored the practice of pharmaceutical companies providing “rebates” to physicians who purchase and use the drugs they sell on their patients.  Oncologists have long engaged in the purchase and resale of toxic agents used in the treatment of cancer. Recently  opthamologists have been provided the opportunity as well. Genetech’s Lucentis is a case in point.

 

THE “MASSIVE REDISTRIBUTION OF WEALTH” AND 31 OTHER INTERESTING STATISTICS AFFECTING THE HEALTHCARE REFORM.

 The United States has undergone a massive redistribution of wealth in the last 30  years. In 1980 the top 1 percent of taxpayers reported 8.5 % of the nations reported income to the Internal Revenue Service. In 2008, the top 1 percent of taxpayers reported receiving 20% of the nation’s income. This and the following 31 other statistics provide an interesting foundation to review the PPACA and its alternatives.

BRING ENOUGH “CHARITY” IN HUNT FOR HOSPITAL TAX EXEMPTION?

 

Robert Ruark, the novelist and big game hunter, used to encourage his fellow hunters to “use enough gun” when hunting dangerous animals.  If the reasoning of the Illinois Supreme Court recently in Provena Covenant Medical Center V. Department of Revenue 2010 WL966858 (2010) gains traction beyond the state court ruling on local property tax exemptions and spills over into the analysis of federal and state income tax exemptions, not-for-profit hospitals may be in for some rough sledding with the Internal Revenue Service and Sen. Charles Grassley (R) Iowa.  Senator Grassley who inserted the enhanced “community benefit” requirements into the Patient Protection and Affordable Care Act enacted last fall has been anxious to hold non-for profit hospitals accountable for the very lucrative tax exemptions that they receive under the Internal Revenue Code.

 

NON PROFIT HOSPITAL CHARITY CARE “OUT OF THE CLOSET” WITH PPACA?

 

 

Sen. Charles Grassley (R) Iowa, arranged to insert language in Section 9007 of the Patient Protection and Affordable Care Act, the health reform bill signed into law in March of 2010 that requires not for profit hospitals to adopt and disclose financial assistance policies for the medically underserved who are not covered by insurance. The American Hospital Association has long argued that mandatory charitable care disclosure policies are unnecessary and that the need can be met through voluntary disclosure procedures.

GREGORY R. PICHE’ TO ADDRESS NATIONAL FORUM ON CLINICAL INTEGRATION.

 

Gregory R. Piche’ will speak on the subject of avoiding tax liability in the clinical integration of tax exempt organizations on November 17, 2010 in Washing D.C. at the National Forum on Clinical Integration.

November 15-17, 2010  |  Washington, DC American Conference Institute's  National Forum on Clinical Integration The Authoritative Guide to ACOs and other Integrated Models in the Wake of Health Care Reform.

Experts estimate that a majority of the newly formed ACOs ultimately will reach their demise within the next three years due to lack of sound financial structuring, failure to obtain physician buy-in, and overwhelming contradictory legal regulations that Congress and the Obama Administration have yet to address. While academics continue to debate theories and we wait for regulatory guidance, key hospital and physician decision makers are reserving their places at the premiere National Forum on Clinical Integration to get answers now and stay on the road to success.  Overcome financial, practical, and legal obstacles with the go-to experts that leading hospital systems will turn to first. Only here will you benefit from one on one meaningful networking opportunities and walk away with the answers to tough questions critical to financial and legal sustainability.         Gain in-depth answers for: Tailoring the integration based on location-specific site variations and technical capabilities Learning directly from the FTC's Assistant Director for the Health Care Division in the Bureau of Competition on his ACO enforcement priorities, how the agencies are working together to resolve antitrust concerns, and what will raise red flags when it crosses his desk Understanding the practical distinction between ownership interests and membership in the ACO in the eyes of the regulators Developing a flexible template for a Stark analysis to apply exceptions to emerging formations Establishing an evidence-based medicine approach without implicating CMP laws Developing cost-effective and efficient quality and performance metrics Ensuring physician incentives and avoiding limitations for growth opportunities, and much more! View Brochure: Too much is at stake to overlook these practical challenges that can devastate your investment. Click on the brochure and register today for the industries foremost event for hospital executives. www.AmericanConference.com/ACOForum We want your opinion! Take 1 Minute to fill out our 6 question survey on ACO's and find out what your peers think in the process! Click Here...

 

Can the Affordable Care Act Bend the Cost Curve and Can Physicians Survive It?

 

 

One of the great premises of the Patient Protection and Affordable Care Act (“PPACA”)enacted last March is that it can reach ahead and bend down the rising cost curve of health care in this country.  The necessity of doing so cannot be reasonably debated although the means can.  The cost of health care in the United States is running about 17% of GNP, while it is only 12% in Germany, which on average has a healthier population. This puts us at a major competitive disadvantage with every other major industrial nation. While there will be increased costs in the short term, there is a very considerable cost in doing nothing, the most prominent and likely of the alternatives available. The excision of the “public option” from the health reform bill was  a boon to insurance companies who successfully opposed its adoption, but it removed a major potential vise to bend the cost curve.