Friday, May 27, 2011
Susan Appleton & Robert Pollak, Exploring the Connections between Adoption and IVF: Twibling Analyses, SSRN/Minnesota L.Rev. Headnotes
Eleanor Kinney, Realizing the International Human Right to Health: The Challenge of For-Profit Health Care, SSRN/West Virginia Law Review
Paul B. Ginsburg, Spending to Save — ACOs and the Medicare Shared Savings Program, NEJM
As tediously explained here the HITECH stimulus package provided approximately $27 billion for CMS to reimburse eligible providers (non-hospital based doctors) and hospitals for the meaningful use of certified EHR technology.
CMS has now cut the first checks under the program, paying out $75 million, as noted here. The first checks went to three Massachusetts physicians (starting at $18,000) and to Beth Israel Deaconess Medical Center ($2.57 million), as described here.
Meanwhile the Meaningful Use Workgroup of the Health IT Policy Committee at ONC continues to refine the standards for Stage 2 of Meaningful Use, as documented here.
Thursday, May 26, 2011
Republicans won big with seniors in 2010 by attacking Democrats over the reform law’s Medicare cuts. How predictable was it that, this year, Democrats would attack Republicans if they put out a plan with Medicare cuts? About as predictable as politics can get.
And likewise, now that the Democrats have gotten so much mileage out of beating up on the Ryan plan — a process that will continue with the upcoming Senate vote on it — expect a sharper Republican attack against any Medicare savings plan the Democrats put out on their own. That includes Obama’s deficit reduction plan, which strengthens the Independent Payment Advisory Board, the reform law’s panel of experts who are supposed to propose more Medicare savings.
Perceptive piece by David Nather in Poliitco, available here, on the lessons to be learned about Medicare reform and electoral cycles. For an early piece on IPAB by Tim Jost in NEJM, see here and for current attacks on the Board from all sides as reported by the New York Times, see here.
Wednesday, May 25, 2011
Tuesday, May 24, 2011
Call For Speakers: “Reaching Out Beyond the Classroom: Health Law Professors Interacting with the Real World”
The AALS Section on Law, Medicine, and Health Care will hold a program during the AALS 2012 Annual Meeting in Washington, D.C. We are issuing an open Call for Speakers to fill the remaining slot on this panel. To be considered, please submit a one or two paragraph summary of your topic to Jennifer.Bard@ttu.edu by August 22, 2011. Submissions will be reviewed by members of the Executive Committee of the Section on Law, Medicine, and Health Care, and authors will be notified in September 2011.
The brief description is as follows:
“Reaching Out Beyond the Classroom: Health Law Professors Interacting with the Real World”
In addition to the law school clinical programs that directly represent patients in hospital and other health care settings, there are many ways in which health law professors are interacting with the medical community outside of the classroom. Jennifer S. Bard, Alvin R. Allison Professor of Law at Texas Tech University School of Law, will moderate and speak of her experience as a professor in a law and medical school developing a JD/MD program; JoNel Newman, Director of the Health and Elder Law Clinics at the University of Miami School of Law, will discuss her innovative program in which a hospital-based clinic has developed into a setting where law students and medical students work together to learn about and address patients’ legal and medical needs. Next, Marshall B. Kapp, Director, Center for Innovative Collaboration in Medicine & Law and Courtesy Professor of Law at Florida State University will present on his efforts to bring the legal and medical professions closer together. Finally, Wendy E. Parmet, George J. and Kathleen Waters Matthews Distinguished University Professor of Law at Northeastern University School of Law, will discuss the role of Northeastern's innovative co-op program in bringing students with interests in health law directly into health care settings beyond what would be possible in an externship or summer clerkship.
We encourage you to share your own experiences bringing health law outside of the classroom by submitting a proposal.
Participants will be responsible for paying their Annual Meeting registration fee and travel expenses. Full-time faculty members of AALS member and fee-paid schools are eligible to submit papers. Foreign, visiting, and adjunct faculty members, graduate students, and fellows are not eligible to submit.
Inquiries should be submitted to Professor Jennifer Bard, Texas Tech University School of Law, Jennifer.Bard@ttu.edu
In a development that may have more immediate and practical effect on the way many of us receive our health care than all the health-care reform going on at the congressional and executive level, in the May 5, 2011 Federal Register, The Centers for Medicare and Medicaid Services (CMS) quietly published their final rule on Telemedicine Credentialing and Privileging for Medicare-participating hospitals and Critical Access Hospitals (CAHs). The rule liberalizes the Medicare Conditions of Participation (CoPs) to allow hospitals and CAHs to rely on practitioner credentialing and privileging that has been done by another Medicare-participating hospital to allow the practitioner to provide telemedicine services to the hospital’s patients. Prior to this rule, CMS required a hospital to go through a full credentialing and privileging process for all practitioners providing services to its patients, including those providing telemedicine services, even when the practitioner was never going to set foot in the hospital or physically touch a patient. In order to take advantage of the liberalized credentialing and privileging process for telemedicine providers, the receiving hospital must also ensure that the telemedicine practitioner holds a license issued or recognized by the state in which the hospital whose patients are receiving the telemedicine services is located, and the receiving hospital must have evidence of an internal review of the distant-site practitioner’s performance of the distant-site’s privileges. At a minimum, the review must include all adverse events that result from telemedicine services provided by the distant-site practitioner to the hospital’s patients, and all complaints that the hospital has received about the distant-site physician or practitioner. 42 CFR §482.22. The final rule is very similar to the proposed rule that was published a year ago, but expands the reach of the alternative credentialing for telemedicine providers to allow a hospital or CAH to contract with non-hospital entities providing telemedicine services to hospitals and CAHs, as long as such contracts meet Medicare CoPs. The new rules are effective as of July 5, 2011.
It is nice to see CMS acting relatively quickly to facilitate what can be a cost-effective and relatively simple way to enhance quality-of-care and provide access to specialists for people in rural and outlying areas. As a resident of a small city that is a medical hub for a large, sparsely populated, I am well aware of the value of telemedicine services, and I support this liberalization. Nevertheless, the comments submitted in response to the proposed regulations, and CMS’ responses to those comments, raise a few interesting legal questions that I have been pondering for a while (but have not yet managed to put in a law review article). For example, if the receiving hospital is relying on the credentialing and privileging process of the distant-site hospital or telemedicine entity, the potential defendant pool in a negligent-credentialing malpractice case is expanded to include a hospital or entity that never actually treated the patient. And if a hospital or entity in a remote location is accused of negligent credentialing or other malpractice-type wrongdoing, there could be a serious question regarding whose standard of care applies to the situation. The requirement that the actual practitioner providing the telemedicine services be licensed in the same state as the receiving hospital may dictate that the law of the state of the receiving hospital will apply to any malpractice alleged against the practitioner, but presumably the credentialing and privileging by the distant-site entity took place in the remote location. There could also be questions about personal jurisdiction and venue for a suit against the distant-site entity, which probably make you shudder just to consider. You might have guessed from my articulation of these issues that I teach Conflict of Laws and Civil Procedure in addition to Health Law, and I see a really good exam question coming out of this scenario in some law students’ futures.
Another interesting thought was raised by a commenter who believes that the liberalized credentialing and privileging contemplated under the rule are likely to be misused by hospital and CAH governing bodies to “sidestep” medical staff decisions regarding credentialing and privileging, and to economically pressure hospital-based practitioners because it will now be easier to replace them with distant-site practitioners. CMS’ response basically brushed this comment aside, stating that the process of privileging by proxy has been common for hospitals accredited by The Joint Commission (TJC) for some time, and that there are no indications that such problems have arisen. Besides feeling sorry for the practitioner who submitted the comment, who must have a very distrustful relationship with the hospital or CAH that employs the commenter, I am also not so sure that I would dismiss this comment so cavalierly. Hospitals that use economic reasons or “business decisions” as rationales for closing departments and terminating staff privileges without going through the processes outlined in the medical staff bylaws have been relatively successful in having courts uphold those decisions. To the extent that the liberalized credentialing and privileging rules make telemedicine less expensive and more convenient for hospitals and CAHs, the rules may very well have the ultimate effect of making it easier for hospitals to terminate physicians or other practitioners without triggering the protections of the medical staff bylaws. This is not necessarily a bad thing, nor is it necessarily within the realm of things that CMS should consider when making this rules change, but there is evidence that it is a real issue. How one feels about this depends on whether one views medical staffs as anti-competitive cartels that need to be busted, or as legitimate protectors of quality and independence for physicians and medical practitioners. Sort of like the way people line up in the debate about whether tenure for faculty is a good thing or a bad thing, but I won’t get into that here.
Finally, the most amusing thing in the regulations was contained in a part of federal register that I usually just skim over, and I suspect most of you do the same. In the section about “Anticipated Effects” of the new rule, the CMS states that it believes that in order to implement the new rule, the initial services of a hospital or CAH attorney will be needed for 12 hours at a cost of $86 per hour. This salary figure is based on recent wage estimates from the Bureau of Labor Statistics (BLS), and marked-up 33% for benefits. Does anybody know a brand new attorney with even minimal knowledge of health care regulation who could produce a regulation-compliant contract, and who bills at $86 per hour? If you do, I think we can promise him or her a steady stream of customers!
Monday, May 23, 2011
The federal government has objected to Indiana's effort to block federal family planning dollars from going to Planned Parenthood in the state. Under legislation passed this year, Indiana would no longer cover cancer screening, treatment of sexually transmitted diseases or other services at Planned Parenthood clinics in its Medicaid program. As the New York Times reported today, Indiana's law violates the federal requirement that states permit Medicaid beneficiaries freedom of choice in choosing their health care providers.
In a surprising decision two weeks ago, a federal district court denied Planned Parenthood's request for a temporary restraining order. The statute also raises serious constitutional questions with its definition of viability at 20 weeks, its requirement that doctors tell women that their fetuses can experience pain, and other provisions.
Victor R. Fuchs & Arnold Milstein,The $640 Billion Question — Why Does Cost-Effective Care Diffuse So Slowly? NEJM, May 18, 2011 (subscription)
Beatrice Jesse Hill, "Whose Body? Whose Soul? Medical Decision-Making on Behalf of Children and the Free Exercise Clause Before and After Employment Division v. Smith," SSRN/Cardozo Law Review
Jeffrey A. Parness, State Damage Caps and Separation of Powers, SSRN/Penn State Law Review