Friday, September 29, 2006

Ill. rules against Provena in property-tax case

From Modern Healthcare's Daily Dose:

The director of the Illinois Department of Revenue [link] rejected an appeal by Provena Health, Mokena, Ill. [link], in a widely watched property-tax exemption case. [See previous posts here, here, and here.] In doing so, the director overruled an administrative law judge in the department who had sided with the not-for-profit system. Provena said it "will quickly and aggressively appeal" department director Brian Hamer's decision [news release]. At stake is some $1.5 million in annual property taxes, according to county tax officials. Provena has paid taxes on property in Urbana, Ill., including its 120-bed hospital there and medical-office buildings, since 2003, while the system appealed the state's initial denial of its request for a property-tax exemption. Rejecting the administrative law judge's ruling in favor of an exemption, Hamer said the property was not used exclusively for charitable purposes.

Last month, the Chicago Tribune reported "the cost to the hospital has been nearly $5 million since it lost its tax-exempt status in January 2003. The hospital says the taxes have been a drain on its balance sheet. The hospital lost $7.9 million last year on $127.9 million in revenue and is projecting a loss again this year." Hospital losing money as tax-exempt appeal languishes, Chicago Tribune, Sept. 7, 2006.
posted by Tom Mayo, 11:19 PM | link

Latest from AHLA's Health Lawyers Weekly (29 Sep 2006)

From the excellent Health Lawyers Weekly (AHLA member benefit), here's the table of contents from the September 29 issue:

Top Stories

Articles & Analyses

Current Topics

(c) 2006 AHLA. Reprinted with permission

posted by Tom Mayo, 8:01 PM | link

Thursday, September 28, 2006

Public hospital governance manual

From the National Association of Public Hospitals and Health Systems comes this handy 94-page guide, authored by three Powell, Goldstein health lawyers: Legal Structure and Governance of Public Hospitals and Health Systems. Good stuff.
posted by Tom Mayo, 8:44 PM | link

Wednesday, September 27, 2006

Health costs' rate of increase down, but still 'way ahead of inflation, family incomes

Two stories in the New York Times today, both well worth reading. (And I don't have a stable link to take you to them; as soon as I find one, I will insert it here. Until then, the links I do have require a free registration.)

A widely followed national survey reported yesterday that the cost of employee health care coverage rose 7.7 percent this year, more than double the overall inflation rate and well ahead of the increase in the incomes of workers.

The 7.7 percent increase was the lowest since 1999. But the average cost to employees continued an upward trend, reaching $2,973 annually for family coverage out of a total cost of $11,481.

Since 2000, the cost of family coverage has risen 87 percent while consumer prices are up 18 percent and the pay of workers has increased 20 percent, the survey noted. That is without counting the cost of deductibles and other out-of-pocket payments, which have also been rising.

These spiraling costs — a phrase that has virtually become a prefix for the words “health care” — are slowly creating a crisis. Many executives have decided that they cannot afford to keep insuring their workers, and the portion of Americans without coverage has jumped 23 percent since 1987.

An industry that once defined the American economy, meanwhile, is sinking in large measure because of the cost of caring for its workers and retirees. For every vehicle that General Motors sells, fully $1,500 of the purchase price goes to pay for medical care. “We must all do more to cut costs,” G.M.’s chief executive, Rick Wagoner, said on Capitol Hill this summer while testifying about health care.

Mr. Wagoner’s argument has become the accepted wisdom about the crisis: the solution lies in restraining costs. Yet it’s wrong. Living in a society that spends a lot of money on medical care creates real problems, but it also has something in common with getting old. It’s better than the alternative.

To understand why, it helps to look back to a time when Americans didn’t worry much about health care costs. In 1950, the country spent less than $100 a year — or $500 in today’s dollars — on the average person’s medical care, compared with almost $6,000 now, notes David M. Cutler, an economist who wrote a wonderful little book in 2004 titled, “Your Money or Your Life.”

Most families in the 1950’s paid their medical bills with ease, but they also didn’t expect much in return. After a century of basic health improvements like indoor plumbing and penicillin, many experts thought that human beings were approaching the limits of longevity. “Modern medicine has little to offer for the prevention or treatment of chronic and degenerative diseases,” the biologist René Dubos wrote in the 1960’s.

But then doctors figured out that high blood pressure and high cholesterol caused heart attacks, and they developed new treatments. Oncologists learned how to attack leukemia, enabling most children who receive a diagnosis of it today to triumph over a disease that was almost inevitably fatal a half-century ago. In the last few years, orphan drugs that combat rare diseases and medical devices like the implantable defibrillator have extended lives. Human longevity still hasn’t hit the wall that was feared 50 years ago.

Instead, a baby born in the United States this year will live to age 78 on average, a decade longer than the average baby born in 1950. People who have already made it to their 40’s can now expect to reach age 80. These gains are probably bigger than the ones the British experienced in the entire millennium leading up to 1800. If you think about this as the return on the investments in medicine, the payoff has been fabulous: Would you prefer spending an extra $5,500 on health care every year — or losing 10 years off your lifespan?

Yet we often imagine that the costs and benefits are unrelated, that we can somehow have 2006 health care at 1950 (or even 1999) prices. We think of health care as if it were gasoline, a product whose price and quality have nothing to do with each other.

There is no question that the American medical system does suffer from a lot of waste, be it insurance industry bureaucracy or expensive procedures that haven’t been proven effective. But the No. 1 cause of the cost increases is still the one you can see at the hospital and in your medicine cabinet — defibrillators, chemotherapy, cholesterol drugs, neonatal care and other treatments that are both expensive and effective.

Not even most forms of preventive care, like keeping diabetes under control, usually save money, despite what many people think. The care itself has some costs, and, more important, patients then live longer than they otherwise would have and rack up medical bills. “When I make this point, people accuse me of wanting people to die earlier. But it’s exactly the opposite,” Dr. Jay Bhattacharya, a researcher at Stanford Medical School, told me. “If these expenditures are keeping people alive, it’s money well spent.”

There's more, and it's all worth reading.
posted by Tom Mayo, 10:38 AM | link

Tuesday, September 26, 2006

"Excited delirium": legitimate diagnosis or another name for "police brutality"?

Every so often -- as with the administration of the death penalty, for example -- medical science and law enforcement procedures overlap in interesting ways. So it is with this story -- dateline Dallas, Sept. 25, from the AP (courtesy of MyWay):

Police found 23-year-old Jose Romero in his underwear, screaming gibberish and waving a large kitchen knife from his neighbor's porch.

Romero kept approaching with the knife, so officers shocked him repeatedly with a stun gun.

Then he stopped breathing. His family blames police brutality for the death, but the Dallas County medical examiner attributed it to a disputed condition known as "excited delirium."

Excited delirium is defined as a condition in which the heart races wildly - often because of drug use or mental illness - and finally gives out.

Medical examiners nationwide are increasingly citing the condition when suspects die in police custody. But some doctors say the rare syndrome is being overdiagnosed, and some civil rights groups question whether it exists at all.
"For psychiatrists, this is a rare condition that occurs once in a blue moon," said Warren Spitz, a former chief medical examiner in Michigan. "Now suddenly you are seeing it all the time among medical examiners. And always, police and police restraint are involved." * * *

The chief psychiatric reference book, The Diagnostic and Statistical Manual of Mental Disorders [link], does not specifically recognize "excited delirium" as a diagnosis. The International Association of Chiefs of Police [link] says not enough is known about it.

"It is not a recognized medical or psychiatric condition," said spokeswoman Wendy Balazik. "That is why we don't use it and have not taken a position on it."

Dr. Matthew D. Sztajnkrycer [link], an emergency room doctor for 10 years and associate professor at the Mayo Clinic in Minnesota, said he has seen cases of excited delirium but has many questions about it.

"It is not like a heart attack where you can just get a blood test and know you have the right diagnosis," he said. "Part of the problem is that post-mortem there is a paucity of physical evidence."

Expect a bucketful of litigation over this concept in policy-brutality cases in the coming years. For further reading on this topic, take a look at:
posted by Tom Mayo, 7:30 AM | link

Monday, September 25, 2006

Universal access, universal coverage, universal pessimism

Two developments on the access-to-health-care front today:

The U.S. should work to ensure all Americans have access to affordable and appropriate core healthcare services by 2012, according to the Citizens' Health Care Working Group. The group, created by Congress to engage the public in a dialogue over basic healthcare values, submitted its final report after nearly 18 months of work. The final report contains one overarching recommendation for U.S. healthcare policy -- healthcare coverage for all -- and five actions for achieving it. It reflects public responses to an interim report released in June. The five recommended policy actions are: protect all Americans against catastrophic healthcare costs; foster innovative, integrated community health networks; define core health benefits and services for all Americans; promote efforts to improve quality of care and efficiency; and fundamentally restructure how end-of-life care is provided and financed.In its report, the group said it consistently heard that Americans believe current healthcare resources should be enough to ensure high-quality care for everyone if distributed more equitably.

In addition, participants in community meetings, an online poll and other forms of dialogue consistently emphasized the importance of shared responsibility and fairness in healthcare financing, the group said. Under the 2003 Medicare reform law that created the working group, President Bush is required to respond to the final report within 45 days, submitting his views to Congress and making recommendations on legislative and administrative actions. Five congressional committees then must hold hearings on the matter.

As expected, California Gov. Arnold Schwarzenegger vetoed a controversial single-payer bill designed to expand healthcare coverage to all of the state's 36 million residents. The legislation narrowly passed the state Assembly and Senate last month. It "would have made healthcare less affordable and cost billions (of dollars) in government mandates," according to a news release from the governor's office. The bill marked the second time in three years that California has come close to adopting sweeping health-insurance reform.

Interestingly, there isn't a whisper of this event on the governor's web site, not on the news page and not in the press releases. A veto message should appear on this page. Maybe tomorrow . . . .

This leaves Massachusetts with the one state-designed nearly universal coverage plan. Neither state is enjoying a rosy economic outlook, both have Republican governors, leaving one to wonder what explains the difference.

posted by Tom Mayo, 4:45 PM | link

Is teacher's suicide attempt "an immoral act"?

This is probably a little more of an employment law issue, but mental health lawyers may find interesting this story from the September 20 issue of CDC's Public Health Law News:

“Teacher’s suicide attempt prompts morality debate”
St. Petersburg Times (09/10/06) Mary Spicuzza

Next month, the Pasco County, Florida, School Board will hold a quasi-judicial hearing to determine the fate of a high school teacher who tried to kill herself at the school in May. Staff members and three or four students witnessed the incident. Schools superintendent Heather Fiorentino says Patti Withers’ suicide attempt was an “immoral act,” and that she should lose her job. Fiorentino also contends that witnessing a suicide attempt can adversely influence adolescents -- a phenomenon called “contagion.” In a letter to Withers, Fiorentino cited the Florida State Board of Education’s administrative rules, which allow dismissal for “immoral conduct.” The rules do not specifically mention suicide, but Fiorentino says Withers’ act was a clear case of misconduct. “As a teacher, you’re a role model for children,” she said. “And this is not what I want as an example.” Florida School Boards Association executive director Wayne Blanton said he supports Fiorentino’s decision. “The first job is not education,” he said. “The first duty is the health, safety, and welfare of students. [Fiorentino] is dealing with this in the way she feels is necessary….” But Chris Kuczynski, of the EEOC’s Americans with Disabilities Act division, said an employee with disabilities such as mental illness may need to pose a direct threat to themselves or others for an employer to take action. The teachers union has asked the School Board to allow Withers to go on health leave, rather than terminate her.

[Editor’s note: For information from CDC on suicide, visit:]
posted by Tom Mayo, 8:45 AM | link

Health policy redux

Our reading assignment in Health Law tomorrow is Chapter 7 in the casebook by Furrow et al. ("Health Care Cost and Access: The Policy Context"). The main focus of the reading is a comparison of various ways of expanding access and controlling costs. It's fortuitous that the invaluable journal Health Affairs, has just posted a new article ("U.S. Health System Performance: A National Scorecard") by researchers at The Commonwealth Fund. The full text of the article will be available for free until October 1 (PDF; HTML). Here's the abstract:

This paper presents the findings of a new scorecard designed to assess and monitor multiple domains of U.S. health system performance. The scorecard uses national and international data to identify performance benchmarks and calculates simple ratio scores comparing U.S averages to benchmarks. Average ratio scores range from 51 to 71 across domains of health outcomes, quality, access, equity, and efficiency. The overall picture that emerges from the scorecard is one of missed opportunities and room for improvement. The findings underscore the importance of policies that take a coherent, whole-system approach to change and address the interaction of access, quality, and cost.
[Health Affairs 25 (2006): w457-w475;10.1377/hlthaff. 25.w457]

The overall score for the U.S. is 61 out of a possible 100.
posted by Tom Mayo, 2:35 AM | link

Sunday, September 24, 2006

Change in organ allocation rules produce dramatic results

There's a good piece in today's N.Y. Times about the dramatic decrease in waiting times for patients on the lung-transplant waiting list, due in part by changes in allocation policies (from longest time on the list to a combination of medical need and ability to thrive after transplant). Technological advances have helped a lot, too, making it possible for more cadaveric lungs to be preserved for transplantation than ever before.
posted by Tom Mayo, 2:53 PM | link

Saturday, September 23, 2006

Latest from AHLA's Health Lawyers Weekly (22 Sep 2006)

From the excellent Health Lawyers Weekly (AHLA member benefit), here's the table of contents from the September 22 issue:

Top Stories

Articles & Analyses

Current Topics

posted by Tom Mayo, 2:59 PM | link

Friday, September 22, 2006

Medicare Part D: appeals process and regulatory oversight

The Kaiser Family Foundation released two issue briefs on the Medicare prescription drug benefit program (Part D) last week:
Issue Briefs Examine Medicare Drug Benefit's Appeals Process and Regulatory Oversight
Kaiser released two issue briefs related to the Medicare drug benefit. The
first focuses on the appeals process and highlights issues that can affect beneficiaries' access to needed medications, while the second examines the authority of the federal government to enforce the laws, rules and regulations governing Medicare drug plans. The papers were prepared by the Center for Medicare Advocacy.
posted by Tom Mayo, 8:25 PM | link

Wednesday, September 20, 2006

Disasters and the law

I just received a copy of Disasters and the Law, the new book by Dan Farber and Jim Chen (Aspen 2006, ISBN 0735562288). It's an interesting read, obviously intended for teaching a course with the same title/focus as the book. It's a really different take on a lot of topics that would otherwise be found chopped up into pieces and distributed to different legal disciplines. To get a flavor of it, check out the publisher's description on the Aspen web site:

Recent hurricanes and other natural disasters demonstrate serious gaps in the legal system and its ability to respond to events of this magnitude. Innovative policies are needed if society is to deal effectively with the aftermath of these disasters and the risk of future ones. Disasters and the Law: Katrina and Beyond studies disaster response, prevention, and mitigation strategies. By integrating knowledge and experience from fields as diverse as urban planning, bankruptcy law, and wetlands law, the authors talk about the legal process in disaster response and reconstruction. Past responses to Hurricane Andrew, the terrorist attacks of September 11th, 2001 and the Loma Prieta Earthquake also are discussed along with a history of U.S. disaster response efforts.

The book examines a wide range of issues and engages in provocative discussion of such topics as:

  • The goals and limits of Federal and military involvement in civilian and domestic support and our expectations of a swift and multi-layered response from government in times of a crisis versus government and private sector capabilities.
  • Medicaid issues raised by the hurricane such as the New York Disaster Relief Medicaid waiver granted in response to the September 11 terrorist attacks and current federal legislation related to Medicaid and
    Hurricane Katrina relief efforts.
  • Environmental issues such as the Army Corps of Engineers' work on levee constructions and the controversy over environmental litigation's role in the Corps' projects, as well as the future re-construction on floodplains.
  • Issues concerning health care, communications, law enforcement, and evacuation.

Katrina alone will involve at least a hundred billion dollars in compensation, insurance, and rebuilding efforts, and lawyers will be heavily involved for at least the remainder of the decade in disputes over these funds. Unfortunately, there is no reason at all to think that Katrina is the last word on disasters. At first glance, disaster law seems to be nothing but a collection of legal rules of various kinds that happen to come into play when communities have suffered severe physical damage. But at a deeper level, disaster law is about assembling the best portfolio of legal rules to deal with catastrophic risks, a portfolio that includes prevention, emergency response, compensation and insurance, and rebuilding strategies. Because of this unifying theme, we think that the topic is deserving of serious law school attention even beyond its newsworthy qualities. Dan Farber

Table of Contents

  1. Introduction
  2. Background
  3. Federalism
  4. Statutes & Regulations
  5. Prevention & Mitigation
  6. Emergency Response
posted by Tom Mayo, 8:01 PM | link

Sunday, September 17, 2006

From the JCT: a handy little black-letter primer on tax-exempt hospitals

For health-law students who are struggling, or who (like mine) are planning to struggle, to understand the federal law of tax exemptions as it applies to hospitals, life just got a whole lot easier. In connection with the Senate Finance Committee's Sept. 13 hearings on the same subject, the staff of the Joint Committee on Taxation published "Present Law And Background Relating To The Tax-Exempt Status Of Charitable Hospitals (JCX-40-06)." It's almost a mile wide (there's nothing to speak of about campaign activity, for example) and an inch deep (intermediate sanctions alone could fill a small book; here it gets a paragraph). In the spirit of law students' favorite, the nutshell, however, it's a good big-picture document.
posted by Tom Mayo, 4:03 AM | link

Saturday, September 16, 2006

Latest from AHLA's Health Lawyers Weekly (15 Sep 2006)

From the table of contents of the September 15 issue of AHLA's Health Lawyers Weekly, a free member benefit:
Top Stories
  • Grassley Continues To Examine Nonprofit Hospitals' Provision Of Charity Care -- Senate Finance Committee Chairman Charles Grassley (R-IA) took the next step in his effort to examine the nonprofit hospital sector by convening a hearing September 13, Taking the Pulse of Charitable Care and Community Benefits at Nonprofit Hospitals, as well as releasing responses from ten nonprofit hospitals on Grassley's 2005 query about their charitable activities. Full Story
  • CMS Announces 5.6% Increase In Standard Medicare Part B Monthly Premium For 2007 -- The standard Medicare Part B monthly premium for 2007 will increase by 5.6%, from the current $88.50 to $93.50, which is lower than early projections, according to a fact sheet released September 12 by the Centers for Medicare and Medicaid Services (CMS).Both the 2006 Medicare Trustees Report issued in May and the July Mid-Session Review of the President's 2007 budget forecast a new Part B premium of $98.50, the fact sheet noted. Full Story

Articles & Analyses

Current Topics

(c) 2006 AHLA. Reprinted with permission.

posted by Tom Mayo, 4:20 PM | link

Friday, September 15, 2006

Tax-exempt hospitals & Sen. Grassley's Finance Committee

The Senate Finance Committee's web page for the Sept. 13 hearing on tax-exempt hospitals is fully populated with witness statements, as well as the Senator's opening and closing remarks, including the words on the subject of charity care:

Turning now to charity care, particularly discounted care and free care for low-income uninsured, there actually seems to be some agreement that nonprofit hospitals should be providing such discounts and free care. The CHA and American Hospital Association (AHA) testimony talk about basic policies in this area. As always there are details, but I think it is important for members and the press to recognize that the nonprofit hospital organizations agree that there needs to be real charity care provided.

I think the question then comes about how can we make this policy real for folks like Mrs. Insco. I think Sister Carol has it exactly right in her testimony that: “It is one thing to have policies in place, and quite another to implement them.” We need to think about how we can best make policies of discounted and free care to low-income uninsured a real benefit to those in need.

Non-profit hospitals receive billions in tax breaks at the federal, state and local level. The public has a right to expect significant, measurable benefits in return. I hope the hearing will help the Finance Committee decide how we can best ensure that non-profit hospitals provide appropriate levels of benefit to the communities they serve. As we consider these questions, I think it right to also bear in mind the particular issues facing critical access rural hospitals.

Let me end by saying that the Government Accountability Office (GAO) and the IRS Commissioner Mark Everson have both commented that there is often little to no difference between for-profit hospitals and non-profit hospitals when it comes to charity care and community benefits provided. I’m confident that many non-profit hospitals are well-intended and do outstanding work on behalf of their communities and the poor. But I’m concerned that the best practices of non-profit hospitals are not common practices for all. That needs to change.

posted by Tom Mayo, 3:44 PM | link

Thursday, September 14, 2006

Latest from the law reviews

From the Marian Gallagher Law Library at the University of Washington:

  • Hareid, Jonathan A. Comment. Testing drugs and testing limits: Merck KGaA v. Integra Lifesciences I, Ltd. and the scope of the Hatch-Waxman safe harbor provision. (Merck KGaA v. Integra Lifesciences I. Ltd. [Integra II], 125 S. Ct. 2372, 2005.) 7 Minn. J.L. Sci. & Tech. 713-756 (2006). [L][W]
  • Ma, Jonathan. Note. Lowering prescription drug prices in the United States: are reimportation and Internet pharmacies the answer? 15 S. Cal. Interdisc. L.J. 345-375 (2006). [L][W]
  • Pisut, Patcharin. Recent development. Freedom to research: room for trial and error in drug development after ... (Merck KGaA v. Integra Lifesciences I, Ltd., 125 S. Ct. 2372, 2005.) 2005 U. Ill. J.L. Tech. & Pol'y 339-355. [L][W]
  • Politis, Pamela D. Student article. Transition from the carrot to the stick: the evolution of pharmaceutical regulations concerning pediatric drug testing. 12 Widener L. Rev. 271-291 (2005). [L][W]
  • Vokes, Sarah J. Student article. Just fill the prescription: why Illinois' emergency rule appropriately resolves the tension between religion and contraception in the pharmacy context. 24 Law & Ineq. 399-420 (2006). [L][W]
  • Greeley, Henry T. Neuroethics and ELSI: similarities and differences. 7 Minn. J.L. Sci. & Tech. 599-637 (2006). [L][W]
  • Melden, Michele. Guarding against the high risk of high deductible health plans: a proposal for regulatory protections. 18 Loy. Consumer L. Rev. 403-433 (2006). [L][W]
  • Nicosia, Joseph III. Student article. Avian flu: the consumer costs of preparing for global pandemic. 18 Loy. Consumer L. Rev. 479-501 (2006). [L][W]
  • Su, Brian. Comment. Developing biobanking policy with an Oliver Twist: addressing the needs of orphan and neglected diseases. 66 La. L. Rev. 771-808 (2006). [L][W]
  • Regulating for Patient Safety: The Law's Response to Medical Errors. Foreword by Barry R. Furrow; articles by Barry R. Furrow, Stanton N. Smullens, M.D., Adam S. Evans, David B. Nash, M.D., John D. Blum, Bryan A. Liang, M.D., William M. Sage, M.D., David A. Hyman, Charles M. Silver, Nicholas P. Terry, Robert B Leflar, Futoshi Iwata, Marshall B. Kapp, Darlene Ghavimi, Pamela D. Politis, Maggie M. Finkelstein and James W. Saxton. 12 Widener L. Rev. 1-325 (2005). [L][W]
  • Gonzalez, Jarod S. A matter of life and death--why the ADA permits mandatory periodical medical examinations of "remote-location" employees. 66 La. L. Rev. 681-731 (2006). [L][W]
  • Upchurch, Angela K. The deep freeze: a critical examination of the resolution of frozen embryo disputes through the adversarial process. 33 Fla. St. U. L. Rev. 395-435 (2005). [L][W]

[L] = Lexis/Nexis link
[W] = WestLaw link
posted by Tom Mayo, 3:30 AM | link

Monday, September 11, 2006

Senate Finance Comm. hearings scheduled on nonprofit hospitals and community benefit

From AHLA's Tax and Finance Practice Group comes this e-mail alert:

To: Tax and Finance Practice Group Members
From: Linda S. Moroney, Chair; John B. Beard, Vice Chair, Membership; James R. King, Vice Chair, Educational Programs; Stephen P. Nash, Vice Chair, Publications; Thomas J. Schenkelberg, Vice Chair, Research
Date: September 8, 2006

Under the leadership of Chairman Chuck Grassley, the Senate Finance Committee has scheduled a new hearing regarding tax-exempt hospitals. Entitled "Taking the Pulse of Charitable Care and Community Benefits at Nonprofit Hospitals," the hearing is scheduled for September 13, 2006, at 10:00 a.m. in 215 Dirksen Senate Office Building [link]. The current slate of witnesses includes the Kansas Attorney General (who has opened up investigations of the billing and collection practices of nonprofit hospitals after complaints from consumers), an employee union representative, and a Legal Aid Society official; it is anticipated that the foregoing will relate certain "horror stories" from indigent individuals who either did not receive care or got involved in billing disputes over care with tax-exempt hospitals. Other witnesses are anticipated to present the hospital perspective, including leaders from the Catholic Health Association and the American Hospital Association, in addition to a rural hospital administrator.

Senator Grassley has for several years conducted an aggressive examination of the entire charitable sector, with increased scrutiny on tax-exempt hospitals. Grassley conducted his first hearing on tax-exempt organizations back in 2004 [link]with a primary focus on governance and best practices of charities [staff discussion draft]. In 2005, the Senate Finance Committee held a second hearing on the nonprofit sector [link] in which Grassley indicated that it was time for comprehensive reforms for charitable organizations. Following that hearing, Grassley sent letters to ten nonprofit hospitals asking forty-five questions about their charity care and communitybenefit, as well as compensation, billing and debt collection practices (press release and copy of letter]. In March 2006, as part of his continued examination of nonprofit hospitals and their tax-exempt status, Grassley sent letters to the American Hospital Association [link] and the Catholic Health Association [link] requesting information from those organizations on a variety of issues, including community benefit, charity care, and certain nonprofit hospital practices [related hearing]. In June of this year, Grassley sent letters to the Chief Counsel of the IRS and Commissioner for Tax Exempt and Governmental Entities, calling for increased scrutiny of the nonprofit sector, particularly tax-exempt hospitals [link]. In July, Grassley, at the nomination hearing for Eric Solomon (nominee for deputy Treasury secretary for tax policy), raised the issue of the current rules governing charitable hospitals and requested that Treasury and the IRS revise those rules. Grassley criticized the 1969 IRS rules that established the "community benefit standard" and asked Solomon to commit to a timetable for review and proposals for reform of those rules [link]. That same month, Grassley harshly criticized the lack of response by the hospitals selected by the GAO for its survey on executive compensation and questioned certain compensation practices of those hospitals that did respond to the survey [link].

This latest action to schedule a new Senate Finance Committee hearing and the witnesses selected to testify demonstrate that Grassley, perhaps due to his dissatisfaction with the overall response from the nonprofit hospital community to his inquiries, is looking to keep the heat on nonprofit hospitals and continue the debate on their tax-exempt status. Any thoughts that the remainder of this year would be relatively calm as far as congressional activity on nonprofit hospitals are now in doubt.

The AHLA Tax and Finance Practice Group would like to thank Don Stuart, Esq. (Waller Lansden Dortch & Davis, LLP, Nashville, TN) for providing us with this email alert.

Imagine how Sen. Grassley's blood boils when he reads stories like this (from the Boston Globe): "Hospital CEOs join the $1m club":
Chief executives at charitable hospitals in Massachusetts received substantial pay and benefit increases in fiscal year 2005, for the first time boosting their overall compensation to more than $1 million at most of the largest institutions.

Also, the highest-paid hospital executive in the state, Partners HealthCare chief executive James J. Mongan, broke the $2 million barrier, another significant milestone.
posted by Tom Mayo, 3:40 AM | link

Sunday, September 10, 2006

DEA and proposed controlled-substances rules

From the Federation of State Medical Board's weekly "BoardNet News" (Friday, September 8, 2006):

DEA Seeks Comment on New Proposed Controlled Substances Rules
The Drug Enforcement Administration (DEA) is seeking comment on a policy statement and a proposed rule regarding the issuance of multiple prescriptions. The documents,
“Dispensing Controlled Substances for the Treatment of Pain” and “Issuance of Multiple Prescriptions for Schedule II Controlled Substances” were published on the Federal Register website on Sept. 6.

The documents are in response to more than 600 comments received by the DEA regarding its withdrawal of the August 2004 document, "Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel," and a subsequent interim policy statement issued in November 2004. State medical board comments were coordinated and submitted collectively by the FSMB in early 2005.

Under the DEA’s proposed rule change, the “Do Not Fill Until...” provision would allow physicians to write three separate prescriptions with staggered fill dates so patients can be given the equivalent of a 90-day prescription for schedule II controlled substances when medically appropriate.

The proposed rule addresses concerns voiced by medical boards and others regarding the DEA’s 2004 interim policy statement on issuance of multiple Schedule II prescriptions.

The policy document indicates that the DEA remains committed to a balanced approach policy; that it is outside the scope or authority of DEA to define or dictate the practice of medicine; and that the DEA’s authority does not supersede state medical board authority.

posted by Tom Mayo, 3:29 AM | link

Saturday, September 09, 2006

Latest from AHLA's Health Lawyers Weekly (8 Sep 2006)

From the table of contents of the Sept. 8 issue of AHLA's Health Lawyers Weekly, a free member benefit:

Top Stories

Articles & Analyses

Current Topics

(c) 2006, AHLA. Reprinted with permission

posted by Tom Mayo, 1:42 AM | link

Friday, September 08, 2006

New article documents higher brain activity in vegetative patient

The N.Y. Times reports today that the journal Science has published an article [abstract; pdf (requires subscription)] in which British researchers performed a functional MRI (fMRI) scan on a post-traumatic-brain-injury patient diagnosed to be in a vegetative state and got back scans that would be indistinguishable from results obtained from subjects without brain injury. According to the Times article:
A severely brain-damaged woman in an unresponsive, vegetative state showed clear signs on brain imaging tests that she was aware of herself and her surroundings, researchers are reporting today, in a finding that could have far-reaching consequences for how unconscious patients are cared for and how their conditions are diagnosed.

In response to commands, the patient’s brain flared with activity, lighting the same language and movement-planning regions that are active when healthy people hear the commands. Previous studies had found similar activity in partly conscious patients, who occasionally respond to commands, but never before in someone who was totally unresponsive.

If the researchers' report is accurate, the patient may have met all clinical criteria for vegetative state but she didn't meet two criteria in the standarddefinitionn of vegetative state: "no evidence of awareness of self orenvironmentt and an inability to interact with others" and "no evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli."

Does this change anything we know about the vegetative state? Does this suggest there may be a need to redefine what we mean by vegetative state? I don't think so.

First, this is a report of a single patient. She may be the only brain-injured patient in the world with these results. Time will tell.

Second, it's possible that over 5 months' time her condition changed from vegetative to something between vegetative and the "minimally conscious state" -- that is, she's no longer vegetative despite outward ("clinical") signs that she is. Should this be a cause for concern that we are routinely misdiagnosing patients as vegetative when they're not? Not necessarily.

As best I can tell from the full text of the article, the fMRI test was performed 5 months after the traumatic brain injury occurred in July 2005. That's long enough to confirm a diagnosis of vegetative state, and even long enough to confirm a diagnosis of persistent vegetative state, but it's a good 7 months shy of the American Academy of Neurology's practice parameter's recommendation of 12 months to confirm a diagnosis of permanent vegetative state after traumatic brain injury.

If the patient continues to meet the clinical criteria for the vegetative state 12 months after her traumatic brain injury and the researchers can show evidence (in the words of their report) "which confirm[s] beyond any doubt that she was consciously aware of herself and her surroundings," that will be an impressive result, although still not enough all by itself to justify altering our present diagnostic criteria.

Meanwhile, I expect this report will be used by partisans in the Schiavo debate to "prove" they were right about Terri Schiavo's mental status, despite irrefutable post-mortem evidence that her brain had atrophied more than 50% over the 15-year course of her vegetative state. Science warned against such a misuse of this report in its press release yesterday, according to the Times: "Science . . . added a 'special note' citing the Schiavo case and warning that the finding 'should not be used to generalize about all other patients in a vegetative state, particularly since each case may involve a different type of injury.'"
posted by Tom Mayo, 4:56 AM | link

Wednesday, September 06, 2006

Health law positions at Georgia State

Georgia State is looking for a couple of good public-health law profs:

Georgia State University’s College of Law seeks highly qualified applicants for three or more full-time faculty positions beginning with the 2007-2008 academic year.

Areas of special interest include criminal law and procedure, and it is anticipated that a successful candidate would be hired at the rank of assistant or associate professor. Two faculty positions are in areas related to public health law, and it is anticipated that one of these positions would be at the assistant or associate professor rank, and the other would preferably be at the full professor rank. For all positions, rank is commensurate with experience. Applicants should have an excellent academic background, strong experience in the focus area applied for, and a proven record of (or demonstrated potential for) successful teaching, scholarship, and service.

The ideal candidates for the two positions in public health law will have strong interdisciplinary research and teaching interests and be able to collaborate actively with the Center for Law, Health & Society at the College of Law and with the Institute of Public Health in the College of Health and Human Sciences at Georgia State University in the Partnership for Urban Health Research (see

Part of a comprehensive research university, the College of Law is a dynamic urban-centered law school located in the heart of Atlanta with approximately 650 full- and part-time law students. We encourage applications from candidates who would diversify our faculty. Georgia State University, a unit of the University System of Georgia, is an equal opportunity educational institution and an equal opportunity/affirmative action employer.

Applications and nominations should be submitted to:

Professor Charity Scott
Chair, Faculty Recruitment Committee
Director, Center for Law, Health & Society College of Law
Georgia State University
P.O. Box 4037
Atlanta, GA 30302-4037

posted by Tom Mayo, 11:46 PM | link

Health care law (including public health law, medical ethics, and life sciences), with digressions into constitutional law, poetry, and other things that matter