Health Law Journal a Publication of the Health Law Section of the New York State Bar Association

NYSBA SUMMER/FALL 2016 | VOL. 21 | NO. 2 Health Law Journal A publication of the Health Law Section of the New York State Bar Association SPECIAL EDITION: DSRIP PERFORMING PROVIDER SYSTEMS From the NYSBA Book Store The New York State Physician’s HIPAA Privacy Manual, 2d ed. This one-of-a-kind, hands-on tool helps health care providers and their legal counsel navigate the often murky waters of the HIPAA Privacy Act. Containing 37 policies and procedures and the forms necessary to implement those policies and procedures, the Manual provides the day-to-day guidance necessary to allow the physician’s office to respond to routine, everyday inquiries about protected health information, as well as the framework to enable the Privacy Officer and health care provider’s counsel to properly respond to even non-routine issues. The Manual is organized in a way that parallels the various aspects of the HIPAA Privacy Rule and covers areas that include General Policies, Uses and Disclosures of Medical Information Without Patient Authorization, and Operational Issues and Patient Rights. The second edition incorporates changes required by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act and the most recent regulations. Changes of particular note include breach notification and new rules that directly require compliance from business associates. AUTHORS William P. Keefer, Esq., Lisa McDougall, Esq. PRODUCT INFO AND PRICES Print: 41196 | 2016 | 292 pages | looseleaf | NYSBA Members $85 | Non-Members $105 E-book: 41196E | 2016 | 292 pages | looseleaf | NYSBA Members $85 | Non-Members $105 Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8380N HEALTH LAW JOURNAL Summer/Fall 2016 Vol. 21, No. 2 THE HEALTH LAW SECTION NEW YORK STATE BAR ASSOCIATION © 2016 New York State Bar Association Table of Contents Page Message from the Section Chair ..........................................................................................................................4 Raul A. Tabora Jr. Regular Features In the New York State Courts ..........................................................................................................................5 In the New York State Legislature .................................................................................................................11 In the New York State Agencies ....................................................................................................................14 New York State Fraud, Abuse and Compliance Developments ...............................................................17 In the Law Journals .........................................................................................................................................22 For Your Information ......................................................................................................................................24 Special Edition: DSRIP Performing Provider Systems Laurie Cohen, Special Edition Editor DSRIP Performing Provider Systems: Who They Are and What They Are Doing ................................25 Governance Issues in New York State’s Delivery System Reform Incentive Payment Program .............................................................................................................30 Jeffrey C. Thrope Antitrust Issues Under the New DSRIP Process .........................................................................................35 David J. Oakley and Martin J. Thompson Compliance in an Era of Federal and State Health Reform: Fitting a Square Peg in a Round Hole ..........................................................................................................39 Tracy E. Miller The SHIN-NY Enables PPSs and Other Health Care Systems to Achieve Clinical Integration ...........45 Jonathan Karmel Confidentiality and Patient Issues Related to the Sharing of Substance Use Disorder Information with DSRIP and Performing Provider Systems (PPSs) ........................................................51 Robert A. Kent, Trisha Schell-Guy and Mark S. Boss DSRIP: NY Medicaid Program’s Transition to Value Based Payment Arrangements ...........................56 Laurie Cohen, Michael Taubin and JoAnna Nicholson Feature Article Excerpts from Recommendations for Amending the Family Health Care Decisions Act to Include Health Care Decisions for Persons with Developmental Disabilities and Patients in or Transferred from Mental Health Facilities ...................................................................61 NY Task Force on Life and the Law, Special Advisory Committee Section Matters Newsflash: What’s Happening in the Section .............................................................................................70 Cover artwork: Claude Monet, The Iris Garden at Giverny (1900) NYSBA Health Law Journal | Summer/Fall 2016 | Vol. 21 | No. 2 3 Message from the Section Chair As I start this term as Chair Cohen for assembling an excellent array of articles on the my thoughts look forward to the topic. upcoming year with the hope of We will also focus on integrating a network of law continuing the strong structure school health societies across the state into the Section’s of Section programs and involve- activities. As I write this column, I am preparing for a ment that has been built by past kick-off CLE conference to be held at Albany Law School Chairs. The Section now has over on health information systems, electronic record exchange 2,000 members. When I first joined and the use of E-health and big data in clinical research in the early 1990s it was a small and practice. This event is part of several year-long proj- committee which met for lunch on ects focused on surveying the law in various innovative a monthly basis in Manhattan. At areas of health care while providing a forum for CLE and each meeting there would be a talk by an industry leader publication of articles on the cutting-edge issues impact- or expert in health law issues. This structure was a pre- ing our practice. The concept began in 2014 with a focus cursor for the current committees within our Section. on telehealth and telemedicine. Each project will provide During the course of my involvement with the grants to summer law school interns to conduct research, Section I have benefited greatly from the educational ending with a symposium to bring it all together with programs developed by colleagues, treatises and updates speakers who are in the forefront of change within these focused on unique developments within health law in fields. This year the program has expanded to include this state as well as opportunities to meet lawyers who both Albany Law School and Fordham School of Law. are engaged with clients across the spectrum of health Please join me in venturing forward with the Sec- care. As our field has dramatically increased in complexi- tion as we continue to grow and learn within our field, ty and depth the value of Section membership has grown striving to meet the needs of our clients and inform exponentially. public policy in a most critical area of social concern—our Over the course of the coming months, our Section health. will continue its strong tradition of taking a leadership role within the changing health care environment. As in Raul A. Tabora, Jr. the past, our Section will assess regulatory and legisla- tive changes, providing commentary from leading health Chair care attorneys in the state for the benefit of public policy. As a prime example, this special edition of the Health Law Journal will address legal issues relating to Perform- ing Provider Systems, formed in response to the DSRIP initiative. DSRIP is perhaps the most significant and ambitious health policy initiative in New York in recent years, and I congratulate Special Edition Editor Laurie NYSBA View archived Webcasts at www.nysba.org/ WEBCAST webcastarchive 4 NYSBA Health Law Journal | Summer/Fall 2016 | Vol. 21 | No. 2 In the New York State Courts By Leonard M. Rosenberg Appellate Division Upholds New able from recognized. Citing numerous cases York’s Criminal Ban Against other medical from the Court of Appeals, the Court Provision of “Aid-in-Dying” to practices that noted that the cases on which Plain- Mentally Competent, Terminally Ill are universally tiffs relied all involved a patient’s Patients not considered right to refuse medical treatment, and Myers et al. v. Schneiderman, 2016 as suicide, and were rooted in the same principles WL 1948796 (1st Dep’t 2016). Appel- that numerous that give rise to a cause of action for lants, two patients, five medical pro- professional medical malpractice due to lack of fessionals, and an advocacy group, organizations informed consent. Accordingly, the appealed the New York County and other states do not deem aid-in- Court held that Plaintiffs had failed to Supreme Court’s dismissal of their dying equivalent to suicide. Plaintiffs overcome their burden of persuasion action seeking to de-criminalize further argued that, to the extent in arguing that the same principles the provision of “aid-in-dying” to that the Penal Law does prohibit applicable to the right to refuse medi- mentally competent, terminally ill aid-in-dying, the law must be strictly cal treatment apply to the affirmative patients who request such assistance. scrutinized, and may only be narrow- act of taking one’s own life. ly tailored so as to advance a com- Plaintiffs sought a declaration pelling state interest. Alternatively,

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