Non-profit hospitals, and other owners of tax exempt properties in Philadelphia, must certify as to their eligibility for continued property tax exemption with Philadelphia’s Office of Property Assessment (OPA) by March 31, 2015. Click here to view a Tax Alert on this issue. With its deep experience in state and local tax issues, Cozen O’Connor is ready to help affected organizations navigate the complexities of the certification process.
Monthly Archives: February 2015
cyberattacks, cybercriminals, cybersecurity, FBI, Healthcare, HIPAA, HITECH / No Comments
Health care providers, insurers and all who handle information on their behalf were put on notice last week that cybersecurity must be a high priority for their organizations. Anthem, Inc. (“Anthem”), the nation’s second largest health insurer, revealed on February 4, 2015 that its information technology (“IT”) system was victimized by a “very sophisticated” cyberattack that exposed the birthdates, social security numbers, street and email addresses and employee data (including income information) of approximately 80 million customers and employees. Anthem noted that the hackers apparently did not get any health information or credit card numbers in the attack, but that the hack did yield medical information numbers. Anthem discovered the breach on its own on January 29th and contacted the FBI, which has started an investigation into the matter.
Large hospitals and health insurers are not the only ones at risk. As the Anthem attack illustrates, health information is a high priority target for cybercriminals. Currently a complete health record may be worth at least ten times more than credit card information on the black market as health records often include a treasure trove of personal information that can be used for identity theft and to file false health insurance claims. Further, the cybersecurity protections currently in place in the health care industry tend to lag behind those in the banking and financial sector, which makes the information vulnerable to cyberattacks by criminals who view the information as “low hanging fruit.”
Failure to have robust cybersecurity programs in place can have a devastating effect on any organization that experiences a data breach. Anthem has already been hit with putative class action lawsuits in Alabama, California, Georgia and Indiana alleging that Anthem did not have adequate security procedures in place to protect its customers and it is likely that more suits will follow. In addition to the FBI’s investigation into attack, Attorney Generals in New York, Connecticut and Massachusetts have indicated that they will be reaching out to Anthem for more information about the attack, the company’s security measures and how it plans to prevent future attacks.
The Anthem breach was the largest in the health care industry so far and may be a harbinger of things to come. The FBI and other security experts have been warning that the health care industry is a key target for cybercriminals, and a single security incident resulting in a data breach can have significant and immediate consequences that include government investigations, class action lawsuits, and a hit to the organization’s reputation. To manage this risk, we encourage all companies handling health information to create, review and update their data security policies and procedures to ensure that they are doing enough to adequately protect the health information maintained on their IT systems and elsewhere in their organization.
To learn more about strategies you can use to manage your exposure, join me at the upcoming panel discussion on “Cybersecurity and Healthcare: The Key to Limiting Your Risk is being Informed” at the Greater Philadelphia Alliance of Capital and Technologies seminar on Thursday, February 26, 2015 in West Conshohocken, Pennsylvania. Click here to register.
If you cannot make the event or would like to discuss your cybersecurity needs with me directly, please contact me, Greg Fliszar, at [email protected].
ACA, Federal Trade Commission, FTC, Supreme Court / No Comments
The New Year started out with a bang in the healthcare antitrust circles with ProMedica Health Systems Inc.’s (“ProMedica”) well-publicized petition to the US Supreme Court and the American Hospital Association’s (AHA) amicus brief in support of ProMedica. ProMedica hopes that the Supreme Court will hear the case and overturn a Sixth Circuit ruling requiring ProMedica to divest St. Luke’s Hospital, a non-profit hospital in Toledo, Ohio. As evidence of the complexity and the lengthy litigation challenges between ProMedica and the Federal Trade Commission (“FTC”) this merger occurred almost five years ago in 2010. The FTC and the Ohio Attorney General had sued to dissolve the deal because they considered it anti-competitive; arguing that ProMedica would control 60% of the hospitals in the greater Toledo area. The FTC ordered ProMedica to divest St. Luke’s (21 HLR 467, 3/29/12). The Sixth Circuit agreed with the FTC on the grounds that the merger would likely result in higher prices for payors and consumers and lead to unintended precedent for future hospital mergers.
ProMedica’s petition argues that this case is “a rare and uniquely apt vehicle for consideration of the [merger law] issues based on a fully-developed record.” Hospital merger cases rarely are litigated through appeal and this case is an opportunity for the Supreme Court to clarify fundamental aspects of merger law nearly 40 years after the United States v. General Dynamics Corp., 415 U.S. 486 (1974) decision. ProMedica argues that over the last 40 years confusion has developed over the FTC’s unilateral-effects theory and consolidation pressures have increased with the passage of the Affordable Care Act and other federal regulations.
ProMedica’s petition focuses on three merger law questions that the lower courts are divided on as the primary reasons why the Supreme Court should hear the case:
- How the FTC defines relevant market product for a merger analysis and whether the FTC can base it on supply-side considerations. ProMedica argued that the FTC should have either analyzed hospital services market by market because one kind of surgery is not a substitute for another or the FTC should have considered all four levels of hospital services as a package-deal market.
- Where the FTC relies exclusively on a unilateral-effects theory in challenging a merger may a court adopt a strong presumption of anti-competitive harm based solely on market-share statistics?
- Can the FTC rely on market-share statistics to preclude consideration of the merger target’s financial weakness to rebut a presumption of harm based on market-share statistics in unilateral-effects cases?
The unilateral effects analysis is the degree to which the merging hospitals are substitutes for each other. The higher the substitutability between two merging hospitals, the greater the competition among them and the greater the power. Here, ProMedica argues that Mercy Hospital, not St. Luke’s, is the closest substitute in the Toledo area.
ProMedica received support from the American Hospital Association (“AHA”) on the third issue, the “weakened competitor” doctrine. On January 21, 2015, AHA filed an amicus brief asking the US Supreme Court to review the Sixth Circuit decision and the lower court’s characterization that the “weakened competitor” argument is a “Hail Mary” that deserves credence only in rare situations. AHA argues that the Sixth Circuit’s erosion of the “weakened competitor” doctrine leaves the “viability of many small and stand-alone hospitals in jeopardy.” AHA also argues that there are conflicting interpretations by the lower courts on how to read the General Dynamics decision. Clarity is needed from the Supreme Court especially in the context of health care mergers. Hospitals should not have to wait until they are on the edge of bankruptcy to merge. AHA believes that the Sixth Circuit errored when it did not apply the General Dynamics weakened competitor analysis to the ProMedica acquisition.
The case is ProMedica Health System Inc. v. Federal Trade Commission, case number 14-762, in the Supreme Court of the United States. The FTC has until March 2, 2015 to file a response. It is unknown when the Supreme Court will decide about hearing the case.