BLOGS: Womble Commercial Real Estate

Thursday, January 31, 2013, 1:42 PM

A Womble Client Alert: A Detailed Analysis of Changes to HIPAA and the Implications for Healthcare Providers and Others in the Healthcare Industry

On Friday, January 25, 2013, the Office for Civil Rights ("OCR") of the U.S. Department of Health and Human Services ("HHS") published a final rule modifying the HIPAA Privacy, Security, and Enforcement Rules (the "Final Rule") as mandated by the Health Information Technology for Economic and Clinical Health ("HITECH") Act. Many of these modifications were set forth in a Notice of Proposed Rulemaking ("NPRM") dated July 14, 2010, although the Final Rule does not adopt all the proposals as described in the NPRM.

The Final Rule also modifies the Breach Notification Rule, which has been effective as an interim final rule since September 23, 2009. Finally, the Final Rule strengthens privacy protections for certain genetic information under the Genetic Information Nondiscrimination Act ("GINA").

The Final Rule makes significant changes to HIPAA and the potential penalties for violating HIPAA. The Final Rule also expands the scope of HIPAA, meaning that some businesses that were not subject to HIPAA before the Final Rule now have HIPAA compliance obligations and can be subject to enforcement action for noncompliance. Healthcare providers and others in the healthcare industry should be aware of these changes and how they will apply to their particular business.

The Final Rule is effective on March 26, 2013, and Covered Entities and Business Associates must comply with the Final Rule by September 23, 2013.

Click each subheading below for a detailed summary of some of the key provisions of the Final Rule:
If you have any questions about the Final Rule or HIPAA please contact Jill M. Girardeau, the principal drafter of this alert, Sarah B. Crotts, Deonys de Cárdenas, Tracy Field, or any member of Womble Carlyle's Healthcare Industry Team.

For a printer friendly link to this alert, please click here.

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Tuesday, January 22, 2013, 8:52 PM

“bombarded with inquiries”

If you’re a player in the healthcare real estate arena, then you have to love hearing about a developer getting “bombarded with inquiries” from potential healthcare tenants after announcing a second phase of a medical and retail development.  To read about this, the “hub and spoke” model that we hear so much about in healthcare real estate, expectations of a continued growing market for certain healthcare real estate, and how that good old fashioned adage “location, location, location” seems to still ring true, go to

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Monday, January 21, 2013, 3:27 PM

The Health and Trends of Healthcare Real Estate

I recommend this quick read on healthcare real estate.  Although it’s not an extremely recent article, I believe that it still captures some of the healthcare real estate trends well, and it will serve as a good foundation for some coming blog posts.  Some of these then coming trends were discussed years ago at the BOMA MOB Conference (e.g., the push for ambulatory care facilities because of crowded, costly ERs).
Market remains ripe for medical real estate
October 01, 2012 | James Ellis and Aaron Razavi

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Friday, January 18, 2013, 6:16 PM

HIPAA Rules... Finally!

The below is client alert from our fellow Womble attorney Jill M. Girardeau that I wanted to share with you.

Yesterday, the Office for Civil Rights of the U.S. Department of Health and Human Services released a final rule containing modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules (the "Final Rule"). The Final Rule will be published in the Federal Register on January 25, 2013. We are conducting a thorough review of the Final Rule and will provide a comprehensive summary once our review is complete. In the meantime, we thought the following information may be helpful to you.

  • The Final Rule is effective on March 26, 2013, and Covered Entities and Business Associates must comply with the Final Rule by September 23, 2013.
  • The Breach Notification Rule has been modified. Until now, an impermissible use or disclosure of Protected Health Information ("PHI") was a Breach only if there was a significant risk of harm. Now, an impermissible use or disclosure of PHI is presumed to be a Breach unless the Covered Entity or Business Associate can demonstrate that there is a low probability that the PHI has been compromised.
  • A subcontractor of a Business Associate that creates, receives, maintains, or transmits PHI on behalf of the Business Associate is now itself a Business Associate. As a result, these subcontractors are subject to the HIPAA provisions applicable to Business Associates.
  • A Covered Entity and a Business Associate (and a Business Associate and its subcontractor) may continue to operate under an existing Business Associate Agreement ("BAA") for a certain amount of time if (1) prior to January 25, 2013, the BAA complied with then-current HIPAA rules and (2) the BAA is not renewed or modified from March 26, 2013 until September 23, 2013. If these conditions are met, the parties can operate under the existing BAA until the earlier of (1) the date the BAA is renewed or modified on or after September 23, 2013 or (2) September 22, 2014.
  • The Final Rule takes a different approach to marketing than the proposed rules from 2010. In short, individual authorization is required for all treatment and health care operations communications if the Covered Entity receives financial remuneration from a third party whose product or service is marketed in the communications.
Stay tuned for a more in-depth analysis of the Final Rule. In the meantime, if you have any questions about the Final Rule or HIPAA, please contact Jill M. Girardeau, any member of the Health Care Practice Group, or the Womble Carlyle attorney with whom you normally work.


Wednesday, January 16, 2013, 2:19 PM

Healthcare Providers Push Forward with Significant Construction or Renovation Projects

Some healthcare providers are making large capital investments in their facilities.  Here are some articles evidencing this:
For plenty of good news from Kentucky, see Hospital Boom Continues in Kentucky at 
For some good news from Florida, see Florida Hospital to announce $270 millions plan for three women’s health towers at
And of course we can’t forget the $1.1 billion project by Johns Hopkins, which some have called the “hotel-like hospital project”.  Here is just one of many articles on this project:  Johns Hopkins unveils new hospital, at,0,5336130.story.

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Monday, January 14, 2013, 2:04 PM

Federal Communications Commission Expands Availability of 400 Million Dollar Rural Health Care Support Mechanism

The below is client alert from our fellow Womble attorneys Mark Palchick and Rebecca Jacobs that I wanted to share with you.

Executive Summary:  The Federal Communications Commission has released an Order significantly expanding access to $400 million in funds available to health care providers for more accessible and affordable broadband services.

The Federal Communications Commission has released an Order that makes available $400 million annually to qualified health care providers (“HCPs”) to pay for 65% of the cost of “any advanced telecommunications or information service that enables HCPs to post their own data, interact with stored data, generate new data, or communicate, by providing connectivity over private dedicated networks or the public Internet for the provision of health information technology.”

The fund previously was only available to a limited number of rural HCPs. Now consortia composed of both rural and non rural health care providers will be able to receive 65% of their cost of using broadband facilities for health care purposes. The FCC hopes to encourage the growth or formation of state-wide, regional, and Tribal broadband networks in order to access patient records, involve distant specialists, increase the speed and efficiency of medical treatment and lower health care costs.

The program will support the cost of (1) broadband and other advanced services; (2) upgrading existing facilities to higher bandwidth; (3) equipment necessary to create networks of HCPs, as well as equipment necessary to receive broadband services; and (4) HCP-owned infrastructure where shown to be the most cost-effective option. The hybrid approach of the Healthcare Connect Fund provides flexibility for HCPs to create broadband networks that best meet their needs and that can most readily be put to use for innovative and effective tele-health applications. However, it will require that program participants demonstrate that they have chosen the most cost-efficient option through a competitive bidding process. Although the new program replaces the current Internet Access Program, it will provide continuing support for Pilot Program consortia as they exhaust any remaining funding already committed under the Pilot Program.

A consortium is eligible for funding if it is composed of qualified rural and non-rural HCPs and the majority of the members are rural HCPs. Both the rural and non-rural HCPs can receive funding, although funding for non-rural HCPs with more than 400 beds is capped at $30,000 per year for recurring charges and $70,000 for non-recurring charges over a five-year period.

Eligible entities include:
·                Post Secondary institutions offering health care instruction, including teaching hospitals or medical schools;
·                Community health centers or health centers providing health care to migrants;
·                Local health departments or agencies;
·                Community mental health centers;
·                Not-for-profit hospitals;
·                Rural healthcare clinics; and
·                Consortia of health care providers

For-profit entities are not eligible for support, but they can be part of a qualified consortium if the for-profit entity pays its far share.

One of the reasons that the Rural Health Care program was expanded was because during the prior operation of the program funding never approached the 400 million dollars available annually. The program adopted pursuant to the Order provides an excellent opportunity for rural, non-rural, and even for-profit HCPs to form consortia that will reduce the cost of using broadband facilities for health care purposes. The Order also provides an excellent opportunity for providers of broadband services to expand the reach of their facilities to interconnect rural and non-rural HCPs.

If you would like to know more about the Order, or how to form a qualified consortium, please contact Mark Palchick or Rebecca Jacobs at Womble Carlyle Sandridge and Rice.

Womble Carlyle client alerts are intended to provide general information about significant legal developments and should not be construed as legal advice regarding any specific facts and circumstances, nor should they be construed as advertisements for legal services.
IRS CIRCULAR 230 NOTICE:  To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication (or in any attachment)


Saturday, January 5, 2013, 11:03 AM

There’s an app for that (cough)?

It’s only a matter of time before mobile apps are used in the healthcare industry, and to a significant extent.  What does this mean for healthcare real estate development?  “Smarter”, more high tech buildings?  A reduction in patient days per square foot?  Will there be a shift in the type of facilities needed (e.g., more call centers)? 

2013 could be an exciting year in healthcare real estate.  No matter how you dissect it, there will be changes that those in the healthcare real estate arena will have to seriously consider (e.g., the Affordable Care Act, changes in technology), or risk being left behind….

Read more at:

Mobile health in 2013: From the gym to doctor's office

USA Today | By Ki Mae Heussner, GigaOm | Dec 26, 2012

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Friday, January 4, 2013, 12:49 PM

Healthcare Real Estate and the Affordable Care Act

The US Supreme Court has ruled regarding the Affordable Care Act (the “ACA”), and Obama has won a second term in the White House.  Now that much of the big picture uncertainty regarding the ACA is gone, it’s time for healthcare providers, healthcare real estate developers, investors, and other such players in this arena, to move forward with the ACA’s effects in mind.

Below is a link to a reasonably quick read that I think you will find worth your time if you are ready to start thinking about healthcare real estate with the ACA in mind (which you should, if you haven’t already).  Teasers: “Many [healthcare] systems have already taken steps to expand their real estate needs to accommodate this anticipated increased demand for care” and “This uncertainty fueled today’s pent-up demand for medical real estate that is now being released.”

Affordable Care Act boost for medical offices
Dec 22, 2012 | Written by Mark Alexander

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