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FINANCIAL
RESTRUCTURING &
CREDITORS' RIGHTS
NEWS
The
Business Advisor - Healthcare Focused
Newsletter
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In this edition of The Business Advisor,
we highlight the activities of our attorneys who focus on healthcare issues and
include some of their recent publications on various aspects of HIPAA, the cost
of a data breach, and the role of a patient care ombudsman. Please do not
hesitate to contact either of these attorneys or your Gibbons contact if you
would like to learn more about any of these important and timely topics.
Karen A. Giannelli, Esq.
Chair, FRCR Department
* * * * * * * * * * *
David N. Crapo, an insolvency attorney who is a member of the
Financial Restructuring & Creditors' Rights Department, was recently awarded an
LLM in Health Law & Policy and is a frequent lecturer on healthcare, healthcare
insolvency, and privacy issues. He has spoken on HIPAA-related topics for the
New Jersey Institute for Continuing Legal Education (NJICLE), Commerce and
Industry Association of New Jersey (CIANJ), New Jersey State Bar Association
(NJSBA), and Delaware Valley Chapter of the Association of Corporate Counsel
(DELVACCA). He was recently named the Special Projects Leader for the Health Law
Committee of the American Bankruptcy Institute.
Mr. Crapo recently gave
a presentation, "Everything You Need to Know About HIPAA," for NJICLE at the New
Jersey Law Center in New Brunswick, NJ, which will be repeated on December 19,
2014 at The Wilshire Grand Hotel in West Orange, NJ. On May 15, 2014, he spoke
at the Privacy Roundtable sponsored by the CIANJ, and on May 14, 2014, he spoke
at a panel at the Annual Meeting of the NJSBA addressing HIPAA issues for law
firms. Earlier in May, Mr. Crapo spoke on a panel, titled "Business at the Speed
of Thought: Privacy and Other Considerations Raised by Mobile Devices and Cloud
Computing," for DELVACCA at the Union League in Philadelphia.
Barry Liss, a member of the Corporate Department and co-leader of the
firm's Healthcare Practice Group, practices exclusively as a healthcare attorney
and provides his clients with guidance and insights that can be obtained only
after decades of experience in this practice area. He was recently appointed
Patient Care Ombudsman in bankruptcy proceedings involving Saint Francis
Hospital in Poughkeepsie, NY. Mr Liss is a sought-after speaker on topics such
as HIPAA and has an extensive list of publications on topics that include
healthcare quality assessment and the effects of hospital consolidation. He
recently served as a Gubernatorial Appointee to the New Jersey Catastrophic
Illness in Children Relief Commission and is a past president of the Board of
Trustees of Friends Health Connection.
On January 30, 2014, Mr. Liss
was a speaker and moderated a panel discussion at a healthcare symposium held in
Iselin, NJ for leaders, influencers, advocates, and purchasers, jointly
sponsored by Gibbons P.C. and PricewaterhouseCoopers. The panel included leaders
of nationally known companies (e.g., UPS, Brother International), the
insurance industry, and government representatives on the subject of "Healthcare
Convergence: A Collision Course."
ARTICLES & CLIENT ALERTS
When healthcare providers go bankrupt, their
patients need special protection. That is the underlying rationale to the
Patient Care Ombudsman (PCO) provision found in Section 333(a)(1) of the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
These
two articles by
Barry Liss, who has served as a PCO in a recent hospital bankruptcy
case in New York, discuss the PCO's responsibilities and why those
responsibilities require sensitivity to the balance that must be struck between
the openness required by the bankruptcy process versus the privacy required by
professional peer review activities in healthcare settings. He advises that the
PCO, the U. S. Trustee, and the Bankruptcy Court should all be sensitive to the
need for effective quality improvement programming in healthcare settings and be
aware of the nexus between the health of those programs and the quality of
patient care.
Quality Assessment, Quality Improvement
and Public Information: The Patient Care Ombudsman's Perspective
New Jersey Law Journal, September 29, 2014
Read full article
and
The Patient Care Ombudsman Report - What
to Include?
Law.com, July 16, 2014
Read full article
■ ■ ■ ■ ■
HIPAA and Health Care Provider Solvency
By:
David N. Crapo
Health Care - An ABI
Committee Newsletter, April 2014
Hospitals
and other healthcare providers are facing significant financial and fiscal
pressures. The recession and the sluggish recovery reduced personal incomes and,
therefore, the demand (if not the actual need) for healthcare services.
Pharmaceutical therapies and ambulatory surgical centers had previously reduced
hospital admissions and revenues. Reduced reimbursements by Medicare, Medicaid,
and private insurers have further suppressed revenues. It is not surprising,
therefore, that even prestigious and well-funded research medical centers like
Vanderbilt University and the Cleveland Clinic are significantly reducing their
workforces to shave operating budgets.
■ ■ ■ ■ ■
HIPAA's Potential Impact on Bankruptcy Sales
By:
David N. Crapo
New Jersey Law Journal, February 17, 2014
In recent years, chapter 11 has increasingly become a merger-and-acquisition
practice. Debtors regularly "reorganize" by selling some (e.g., Nortel,
Lehman Brothers) or all (e.g., Chrysler, GM) of their business. The
healthcare industry is not exempt from this trend. Sound Shore Medical Center
filed its chapter 11 bankruptcy case intending a sale of its business and assets
to Montefiore Health System - a sale that closed last fall. Similarly, St.
Francis Hospital of Poughkeepsie, NY, filed its chapter 11 bankruptcy petition
on Dec. 17, 2013, with the stated goal of selling its business and assets to
Health Quest Systems (which owns Vassar Brothers Hospital in Poughkeepsie) or
the bidder making the highest and best offer.
■ ■ ■ ■ ■
The Cost of a Data Breach: The Health Care Perspective
By:
Luis J. Diaz and
David N. Crapo
The Metropolitan Corporate
Counsel, December 2013
The best-known
provision of the Health Information Technology for Economic and Clinical Health
Act of 2009 ("HITECH") was the amendment of the Health Insurance Portability and
Accountability Act of 1996 to provide for the promulgation by the U.S.
Department of Health and Human Services (HHS) of the Breach Notification Rule.
An Interim Final Breach Notification Rule ("Interim Final Rule") was published
on September 23, 2009. The Interim Final Rule generated significant controversy.
On January 25, 2013, HHS issued the HIPAA Privacy, Security and Breach
Notification: Final Omnibus Rule ("Omnibus Rule"), which included a modified,
and final, HIPAA Breach Notification Rule. 78 F.R. 5566, et seq. Much
has been written on what constitutes a breach and how to prevent breaches. HHS
estimates that as many as 700,000 entities will be subject to the Final Breach
Notification Rule. 75 F.R. at 5671. This article will address an equally
important issue, the cost of a breach, including (i) the cost of notifying
individuals, HHS, and media of a breach; (ii) civil monetary penalties that HHS
can impose; and (iii) civil judgments.
RECENT NEWS AND EVENTS
Gibbons recently established its Privacy & Data Security Task Force. Mr. Crapo,
Mr. Diaz, and Mr. Liss are all members of the task force, which provides
counseling, investigatory, and/or litigation services to address the range of
privacy and security issues that affect clients' businesses. An interview with
Peter J. Torcicollo, leader of the Privacy & Data Security Task
Force, was published in the July/August issue of The Metropolitan Corporate
Counsel. The full article can be read
here.
Gibbons/PwC Healthcare Symposium Draws Hundreds - Industry Leaders Address
Concerns of All Healthcare Stakeholders at Popular Program
Gibbons Director Selected to Serve on Law360 Healthcare Editorial
Advisory Board
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Gibbons is headquartered at One
Gateway Center, Newark, NJ
07102; (973) 596-4500
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