Health Care E-Newsletter—Volume 2
Electronic Medical Records (EMR) Funding Available for Physicians and their Practices
The federal government has made stimulus funding available for physicians (and certain allied practitioners) to obtain EMR technology. The incentive program is part of the American Recovery and Reinvestment Act of 2009 as well as the Health Information Technology for Economic and Clinical Health Act ("HITECH"). Those physicians who demonstrate "meaningful use" of electronic health records are eligible to receive an incentive reimbursement of up to $63,750 over six (6) years. Seventy percent (70%) of the incentive is distributed to physicians within the first two years of claiming eligibility for the funding. Prompt participation in the program will maximize reimbursement and failure to implement medical records technology by 2015 will result in a reduction in Medicare payments.
Physicians may apply for the EMR stimulus funding if they meet certain qualifications. The incentive payments are being paid through and are related to a physician's participation in Medicare and/or Medicaid.
Contact Susan Royster at (610) 797-9000 for more information about how you may participate in the stimulus program and how it may assist your practice in obtaining appropriate medical records technology.
Pennsylvania's "Fair Share Act"
On June 28, 2011, Governor Corbett signed Pennsylvania's "Fair Share Act" (Act 17-2011) into law. The Fair Share Act changed joint and several liability in most tort actions, including medical malpractice claims.
Previously, if two or more parties were caused a patient's injury, they were "jointly and severally liable" to the injured party. Under the "old" rule, each responsible party could be held liable for the full amount of the judgment, regardless of that party's degree of fault. For example, if there were two responsible parties and one was liable for 10% of the injury and the other was liable for 90%, either party could could be forced to pay the full (100%) amount of the judgment, even the party who was found to be only 10% liable. However, any responsible party that paid more its proportionate "share" of liability would have a claim against the other party for failing to pay its proportionate share of the judgment.
Now, under Pennsylvania's Fair Share Act, a party found to be less than 60% liable is only required to pay its "fair share" of the damages. Accordingly, under the new rule, if a party is found to be responsible for 10% of a patient's injury or loss, that party pays 10% of the judgment. However, if a party is found to be liable for 60% (or more) of the injury, that party can still be be held liable for the full (100%) amount of the judgment.
It is noteworthy that the Fair Share Act contains several exceptions where the new rule does not apply and parties may still be jointly and severally liable, including (but not limited to):
- claims involving intentional misrepresentation; and
- claims involving intentional torts.
The Fair Share Act was effective immediately and applies to causes of action that accrue on or after the effective date of the law. Contact John P. Rice at (610) 797-9000 for more information.
Local Zoning Ordinances and The Evolving Nature of Healthcare
Recently, Joseph A. Bubba, Esq. and Steven T. Boell, Esq. successfully defended an appeal to the Commonwealth Court from zoning approvals for a short term stay medical facility/specialty hospital.
In Suburban Realty, L.P. v. Zoning Hearing Board of Stroud Township, 1791 C.D. 2010 (Pa. Cmwlth. September 29, 2011), the lawyers at Fitzpatrick, Lentz, & Bubba, P.C. obtained certain variances from the municipal zoning hearing board for a twelve bed specialty hospital. The neighboring property owner argued that such relief should have been denied as the local zoning ordinance included a five acre minimum lot size for "hospitals". The use was proposed on a one acre lot.
Before the zoning hearing board, Bubba successfully argued that such zoning restriction was intended to apply to a community hospital and not a smaller scale facility. The objectors appealed to the Court of Common Pleas and (following that court affirming the zoning hearing board) the Commonwealth Court. Following oral argument in Harrisburg, in a 2-1 decision, the Court accepted the arguments presented by Fitzpatrick, Lentz & Bubba and affirmed the trial court decision. The Court emphasized that the proposed facility would provide no emergency services, would not be open to the general public and would not accommodate anyone with general health problems.
The case demonstrates the interplay of antiquated local zoning ordinances and the evolving nature of healthcare. Zoning ordinances often do not recognize the increased development of smaller specialty hospitals, independent diagnostic testing facilities and ambulatory surgical centers.
Contact Steven T. Boell at (610) 797-9000 for more information.
PBI Health Law Program to feature Joseph A. Bubba
Managing Shareholder Joseph A. Bubba is a member of the faculty for a full-day Pennsylvania Bar Institute program entitled "A Day on Health Law." Mr. Bubba is the firm's managing shareholder and chair of the firm's healthcare division.
The full-day conference is scheduled for October 18, 2011, at the CLE Conference Center in Philadelphia, and will be simulcast in 18 locations throughout the Mid-Atlantic region. Mr. Bubba will present the session "Medical Staff Hearings – 10 Tough Issues." Other program sessions will include: False Claims Act Update; HIPAA after HITECH; Legal Ethics and the Attorney-Client Privilege; Data Breaches at Health Care Provider Institutions; and Physician Practice and Liability: The Effect of the Patient Protection and Affordable Care Act.
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