The past year has been a momentous one for health lawyers and our clients, with the upholding of the Affordable Care Act (ACA) by the U.S. Supreme Court. The coming year promises to be extremely important, as the state and federal governments continue to implement numerous provisions of ACA as well as of the New York Medicaid Redesign Team (MRT) reform provisions.

At our section’s fall meeting in Albany on Oct. 26, 2012, we focused on New York health reform measures.1 We were delighted that key officials from the New York State Department of Health (DOH) and state legislature could join us in panel discussions. The topics addressed included: insurance exchanges, recent legislative efforts in the area of accountable care organizations and self-referral prohibitions, the proposed regulations on executive compensation, and proposals to reform New York laws and regulations that form barriers to health reform.

Monitoring State Initiatives

As New York state forges ahead with health reform implementation, our section intends to be active in monitoring and commenting on proposed legislation and regulations. The state initiatives that warrant special attention include: (1) Improving Capital Access for Health Care Providers in New York State,2 (2) the CON (certificate of need) Redesign Report adopted by the Committee on Health Planning of the Public Health and Health Planning Council (PHHPC),3 and (3) the executive compensation regulations.4

To improve access to capital, the state is considering revising the current legislative prohibition on ownership of Article 28 providers by publically traded corporations. This recommendation also appeared in the MRT Report on redesigning the healthcare system in Brooklyn.5

The CON Redesign Report includes recommendations that impact not only the CON process, but also significant governance issues. For example, the report recommends: (1) requiring prior notice to DOH before commencing a “passive parent” relationship, and giving DOH 90 days to recommend disapproval to PHHPC; (2) “relaxing the prohibition on revenue sharing among providers that are not established as cooperators”; and (iii) supporting legislation advanced in 2012 but not passed to authorize DOH to appoint temporary operators of hospitals and freestanding clinics and to replace board members under certain circumstances related to patient safety and financial instability.

As you can see, 2013 promises to be a busy year. The Health Law Section of the NYSBA looks forward to playing a role in assuring that policymakers and stakeholders consider the legal implications of reform proposals before they are implemented.

Ellen V. Weissman, chair of the Health Law Section, is a partner at Hodgson Russ.

Endnotes:

1. The hand-outs for this seminar are accessible at www.nysba.org/HLS2012FallMtg.

2. DOH Webcast Oct. 2, 2012, http://www.health.ny.gov/events/improving_capital_access/.

3. Adopted Dec. 6, 2012 http://www.health.ny.gov/facilities/public_health_and_health_planning_council/meetings/2012-12-06/docs/draft_con_redesign_report.pdf.

4. Our section’s comments on the proposed regulations (both original and revised) are at http://www.nysba.org/AM/Template.cfm?Section=Comments.

5. http://www.health.ny.gov/health_care/medicaid/redesign/docs/brooklyn_mrt_final_report.