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

• Phased-In Pay-For-Performance Program Would Encourage Healthcare Quality Improvement, IOM Finds: The Department of Health and Human Services (DHHS) should phase in a pay-for-performance system in order to promote improvements in the quality of healthcare, the Institute of Medicine (IOM) said in a report released September 21.For an initial period of three to five years, Congress should reduce base Medicare payments across the board and use the money to fund rewards for strong performance, the report said. Full Story
• OIG Approves Charitable Organization's Practice Of Providing Financial Assistance To Needy Medicare Patients For Treatment Of Certain Diseases:
  In an advisory opinion posted September 21, the Department of Health and Human Services Office of Inspector General approved a nonprofit, tax-exempt, charitable organization's practice of providing certain therapy management services and financial assistance to financially needy Medicare beneficiaries undergoing treatment for certain diseases. Full Story

Articles & Analyses

• Grassley, The IRS Questionnaire, And Community Benefit: Are We Done Yet?, By Michael W. Peregrine, Robert C. Louthian, Elizabeth M. Mills McDermott Will & Emery LLP
• Caution Warranted For Employers As Supreme Court Adopts Broad Retaliation Test, By John P. Ryan and Kevin J. Gfell, Hall, Render, Killian, Heath & Lyman, P.C.

Current Topics

• Antitrust
  1. FTC Says Non-Profit Institution Act Applies To Health System's Drug Purchase And Distribution Program
  2. Seventh Circuit Rejects Anesthesiologist's Antitrust Challenge To Exclusive Contract Between Hospitals And Anesthesiology Group Practice
• Arbitration/Mediation
  Florida Appeals Court Compels Arbitration Under Nursing Home Admissions Agreement Even Though Portions Of Agreement Are Unconscionable
• Employment and Labor
  1. Fifth Circuit Rejects Hostile Work Environment Claim Against Nursing Home
  2. U.S. Court In California Finds Physician's History Of Alcohol Dependency Does Not Constitute "Disability" Under ADA
• Food and Drug Law
  1. Legislation To Improve Research On Drug Safety Introduced In Senate
  2. Study Finds Brand Name Prescription Drug Prices Continue To Rise, Manufacturers Group Disputes Findings
  3. Grassley Presses FDA's Acting Commission To Improve Drug Safety Oversight
  4. Generic Drugs Can Save Healthcare System Big Money, Senate Committee Told
• Fraud and Abuse
  1. Update
  2. U.S. Court In Arkansas Dismisses Qui Tam Lawsuit Against Hospital And Oncologist At Affiliated Radiation Therapy Facility
  3. U.S. Court In Tennessee Declines To Dismiss Qui Tam Lawsuit Against Manufacturer Of Implant Medical Devices
• Health Information Technology
  1. Provider Groups Tell Grassley, Baucus HIT Bill Poses No Antitrust Risk
  2. Study Shows Physicians Slow To Adopt Email As Means Of Communicating With Patients
• Health Policy
  Commonwealth Fund Presents Results Of Its National Scorecard On U.S. Health System Performance
• Insurance
  U.S. Court In Louisiana Finds Excess Liability Insurance Policy Not Triggered When Settlement Does Not Exceed Primary Coverage
• Medicaid
  Federal Judge Dismisses Challenge To New Medicaid Citizenship Verification Requirement
• Medical Malpractice
  1. Texas Appeals Court Finds Patient's Claims Against Healthcare Facility Are Healthcare Liability Claims Under Relevant Statute
  2. California Appeals Court Says Jury Should Decide Whether Physician Who Assisted In Chiropractic Procedure Owed Duty To Obtain Patient's Consent
• Medicare
  1. Medicare Providers Satisfied With Contractors, Survey Finds
  2. Study Shows Medicare Cuts For Imaging Services Will Affect Patient Care, Group Says
  3. OIG Report Finds Limiting Rental Payments For Home Oxygen Equipment Would Save Medicare $3.2 Billion Over Five Years
  4. CMS Says LCD Clarifications Intended To Ensure Medicare Beneficiaries Have Access To Appropriate PMDs
  5. CMS Proposes Limit On Recoupment Of Provider And Supplier Overpayments Until Second-Level Appeal Complete
• News in Brief
  Wal-Mart Will Offer Nearly 300 Generic Drugs At $4
• Physicians
  U.S. Court In Texas Says Physician Must Accept Reduced Damages Or Face New Trial In Credentialing Case Against Hospital
  
  (c) 2006 AHLA. Reprinted with permission.

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.

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

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.

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

• Thou Shalt Not Profit, Part II: D&O Liability Issues For Tax-Exempt Healthcare OrganizationsBy David M. Finz, Beecher Carlson, & Christopher S. Rizek, Caplin & Drysdale

Current Topics

• Antitrust
  Tenth Circuit Rules Excluding Optometrists From Provider Panel Does Not Violate Sherman Act
• Arbitration/Mediation
  Mississippi Supreme Court Finds Arbitration Agreement Precludes Wrongful Death Action Against Surgeon
• ERISA
  U.S. Court In Utah Finds Healthcare Provider's State Common Law Claims Against Insurer Not Preempted By ERISA
• Food and Drug Law
  1. FDA Fines American Red Cross $4.2 Million
  2. U.S. Court In Texas Finds Compounded Drugs Not Subject To FDA's New Drug Approval Process
  3. Tenth Circuit Rules FDA Has Authority To Ban Ephedra Under Unreasonable Risk" Standard
• Fraud and Abuse
  1. AdvaMed Asks OIG For More Guidance On Potentially Suspect Physician Investments In Medical Device Firms
  2. U.S. Intervenes In Whistleblower Suit Against Drug Manufacturer
  3. Eleventh Circuit Vacates Sentences Imposed On Consultant and Home Health Agencies For Conspiring To Submit False Claims To Medicare
  4. Update
• Hospitals and Health Systems
  Hospitals Failed To Report To CMS Nearly Half Of All Restraint And Seclusion Deaths, OIG Finds
• Insurance
  HSAs Have Lower Premiums, But Higher Out-Of-Pocket Costs, GAO Says
• Medicaid
  Senate Panel Holds Roundtable Discussion On Managed Care In Medicaid
• Medical Malpractice
  Kansas Appeals Court Finds On-Call Physician Owes No Duty Of Care To Patient When Physician Refused To Treat Patient
• Medicare
  1. OIG Finds Estimated $20 Million In Medicare Overpayments For Radiology Services
  2. CBO Estimates Costs Of Options For Overriding Medicare Physician Payment Rate Reductions
  3. CMS Releases Draft Part D Chapter For Comment
• News in Brief
  1. CMS Names Contractors To Study IPPS Reform
  2. Healthcare Price Transparency Bill Introduced In House
• Physicians
  1. Hawaii Supreme Court Allows Action Alleging Insurer Systematically Impeded Network Physicians' Claims
  2. U.S. Court In Pennsylvania Finds Hospital Has HCQIA Immunity From Suspended Physician's Antitrust And Breach Of Contract Claims
• Quality of Care
  HSC Study Finds Hospitals Participate In Quality-Reporting Programs But Coordination, Resources Lacking

(c) 2006 AHLA. Reprinted with permission.

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.

Latest from the law reviews

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

FOOD AND DRUG

• 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]

HEALTH LAW AND POLICY

• 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]

MEDICAL JURISPRUDENCE

• 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

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.

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.

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

• CMS Reports On Ongoing Improvement Of QIO Program
  The Quality Improvement Organization (QIO) Program is an essential component of initiatives in transparency and performance-based payment of providers, the Centers for Medicare and Medicaid Services (CMS) said in an August 31 report to Congress, Improving the Medicare Quality Improvement Organization Program--Response to the Institute of Medicine Study. Full Story
• CMS Announces Physician-Hospital Gainsharing Demonstration Project
  The Centers for Medicare and Medicaid Services (CMS) announced September 6 the launch of its Physician-Hospital Collaboration Demonstration (PHCD), a three-year demonstration program to examine whether allowing hospitals to provide financial incentives for physicians to support better care can improve patient outcomes without increasing costs. Full Story

Articles & Analyses

• Thou Shalt Not Profit, Part I: New Penalties For Tax-Exempt Entities And Managers By Christopher S. Rizek, Caplin & Drysdale, & David M. Finz, Beecher Carlson

Current Topics

• Antitrust
  1. U.S. Court In Ohio Dismisses Physician's Antitrust Claims Against Hospital And Affiliated Group Practice Finding No Antitrust Injury
  2. Senate Panel Considers Competition In Group Healthcare
• DHHS
  McClellan To Step Down From CMS Administrator Post
• ERISA
  D.C. Circuit Says Insureds Not Entitled To "Make Whole" Relief From HMO's Subrogation Claim
• Food and Drug Law
  1. U.S. Court In Maryland Rejects County's Bid To Implement Drug Importation Program
  2. FDA Issues Draft Guidance On New Medical Device Test, Group Of Medical Tests
  3. Lawmakers Ask GAO To Investigate FDA Reliance On Certain Antibiotic Trials
• Fraud and Abuse
  Update
• Health Information Technology
  GAO Says Despite Progess, DHHS Still Needs More Detailed HIT Plan
• Health Policy
  Governor Schwarzenegger To Veto Universal Health Insurance Bill
• HIPAA
  U.S. Court In Kansas Says Hospital Satisfied HIPAA Requirements In Seeking Order To Access Medical Malpractice Patient's Records
• Individual/Patient Rights
  CMS Should Extend Privacy Breach Notification Requirements, GAO Says
• Medicaid
  New Hampshire Supreme Court Says State's Temporary Reduction Of Medicaid Reimbursement Rate For Pharmacies Exempt From Rulemaking Process
• Medical Malpractice
  1. Louisiana Appeals Court Affirms Jury Finding That Mental Health Facility Did Not Breach Standard Of Care After Patient Fell While Trying To Escape
  2. Louisiana Appeals Court Finds Genuine Issue Whether Hospital Met Standard Of Care In Malpractice Action
  3. California Appeals Court Finds Medical Malpractice Action By Patient Who Lost Ability To Walk After Spinal Surgery Not Time-Barred
• Medicare
  Most Americans Worried About Seniors' Access To Care If Medicare Physician Payment Cuts Take Effect, AMA Says
• News in Brief
  CMS Seeks Comments On Draft Chapter Regarding Part D Benefits And Beneficiary Protections

(c) 2006, AHLA. Reprinted with permission

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 patientÂ’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.'"

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 http://urbanhealth.gsu.edu/).

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

SSRN roundup: health law (August 2006 additions)

Here are last month's postings to the ever-useful SSRN:

• Being Specific About Race-Specific Medicine
  Health Affairs, Vol. 25, 2006
  Jonathan D. Kahn and Pamela Sankar, Hamline University - School of Law and University of Pennsylvania - School of Medicine
  Date Posted: August 30, 2006
  Last Revised: August 30, 2006 Accepted Paper Series
• Counterfeit Drugs: The Good, the Bad and the Ugly
  Albany Law Journal of Science and Technology, Vol. 15, 2006
  Kevin Outterson and Ryan Smith, West Virginia University - College of Law and West Virginia University - College of Law
  Date Posted: August 30, 2006
  Last Revised: August 30, 2006 Accepted Paper Series
  2 downloads
• Deciding Who We Are: The Relational Self and Tyranny of Atomistic Autonomy
  David E. Guinn, DePaul University
  Date Posted: August 30, 2006
  Last Revised: September 1, 2006
  Working Paper Series
  8 downloads
• Mental Health Tribunals: A Significant Medico-Legal Change
  Medico-Legal Journal of Ireland, Vol. 10, p. 84, 2004
  Darius Whelan, University College Cork - Faculty and Department of Law
  Date Posted: August 30, 2006
  Last Revised: August 30, 2006
  Accepted Paper Series
• Defining Constitutional Parameters: The Forced Drugging of Civilly Committed Mental Patients
  Southern California Interdisciplinary Law Journal, Vol. 1, pp. 57, 1992
  Lisa Litwiller, Chapman University - School of Law
  Date Posted: August 29, 2006
  Last Revised:August 29, 2006
  Accepted Paper Series
• Maryland's Wal-Mart Act: Policy and Preemption
  Cardozo Law Review, forthcoming
  Edward A. Zelinsky, Cardozo Law School
  Date Posted: August 29, 2006
  Last Revised:August 29, 2006
  Accepted Paper Series
  1 downloads
• New Terms for an Old Debate: Embryos, Dying and the 'Culture Wars'
  Hofstra Univ. Legal Studies Research Paper No. 06-23, Houston Journal of Health Law & Policy, Vol. 6, p. 251, 2006
  Janet L. Dolgin, Hofstra University - School of Law
  Date Posted: August 29, 2006
  Last Revised: August 29, 2006
  Accepted Paper Series
  5 downloads
• The Beginning and End of the Life Cycle
  Hong Kong Law Journal, Vol. 35, No. 2, p. 277, 2005
  Elizabeth Butler-Sloss, University of Hong Kong - Faculty of Law
  Date Posted: August 29, 2006
  Last Revised:August 29, 2006
  Accepted Paper Series
• Toward Healing and Restoration for All: Reframing Medical Malpractice Reform
  Connecticut Law Review, Vol. 39, Winter 2006-2007
  Jonathan Todres, New York University School of Law
  Date Posted: August 29, 2006
  Last Revised: August 29, 2006
  Accepted Paper Series
• What Should California Law Be on Doctor-Assisted Suicide
  Los Angeles Daily Journal, Vol. 106, No. 7, 1993
  Jeremy M. Miller, Chapman University - School of Law
  Date Posted: August 29, 2006
  Last Revised: August 29, 2006
  Accepted Paper Series
• Human Genetics Studies: The Case for Group Rights
  Duke Science, Technology & Innovation Paper No. 10, Journal of Law, Medicine & Ethics, Vol. 35, 2006
  Laura Underkuffler, Duke University - School of Law Date
  Posted: August 24, 2006
  Last Revised: August 24, 2006
  Accepted Paper Series
  2 downloads
• Abortion and Original Meaning
  Jack M. Balkin, Yale University - Law School
  Date Posted: August 21, 2006
  Last Revised: August 25, 2006
  Working Paper Series
  541 downloads
• Defining Life from the Perspective of Death: An Introduction to the Forced Symmetry Approach
  Arizona Legal Studies Discussion Paper No. 06-29, University of Chicago Legal Forum, 2006
  Kirsten Rabe Smolensky, University of Arizona - James E. Rogers College of Law
  Date Posted: August 18, 2006
  Last Revised: August 18, 2006
  Accepted Paper Series
  13 downloads
• Governing the Body: Examining EU Regulatory Developments in Relation to Substances of Human Origin
  Journal of Social Welfare and Family Law, Vol. 27, Nos. 3-4, pp. 427-437, 2005
  Anne-Maree Farrell, University of Manchester
  Date Posted: August 15, 2006
  Last Revised: August 15, 2006
  Accepted Paper Series
  Law, Religion and Biomedicine: Consensus or Conflict?
  Sydney Law School Research Paper No. 06/12, Macquarie Law Symposium - Law, Religion and Medical Science, Vol. 1, pp. 59-66, 2006
  Roger Magnusson, University of Sydney - Faculty of Law
  Date Posted: August 15, 2006
  Last Revised: August 24, 2006
  Accepted Paper Series
  7 downloads
• The Design and Experience of Health Regulation in Colombia
  Revista de Economía Institucional, Vol. 7, No. 12, First semester 2005
  Jairo Humberto Restrepo Zea and Sandra Rodríguez Acosta, Universidad de Antioquia and Universidad de Antioquia
  Date Posted: August 12, 2006
  Last Revised: August 12, 2006
  Accepted Paper Series
• Improving Medical Malpractice Liability by Allowing Insurers to Take Charge
  Harvard Law and Economics Discussion Paper No. 556
  David Rosenberg and Kenneth Reinker, Harvard Law School and Criterion Economics, LLC
  Date Posted: August 10, 2006
  Last Revised:August 31, 2006
  Working Paper Series
  23 downloads
• The Idea of a Right to Genetic Privacy
  Torben Spaak, Uppsala University - Law
  Date Posted: August 10, 2006
  Last Revised: August 10, 2006
  Working Paper Series
  7 downloads
• The Ills of America's Health Care System: Root Causes and Potential Cures
  Networks Financial Institute Policy Brief No. 2006-PB-12
  Sidney Taurel, Eli Lilly and Company - Lilly Corporate Center
  Date Posted: August 9, 2006
  Last Revised:August 9, 2006
  Working Paper Series
  3 downloads
• Schiavo: The Road Not Taken
  University of Miami Law Review, Vol. 61, No. 20, 2007
  Mary Irene Coombs, University of Miami - School of Law
  Date Posted: August 8, 2006
  Last Revised: August 18, 2006
  Accepted Paper Series
  3 downloads
• Human Rights as a Contingent Foundation: The Case of Physicians for Human Rights
  Journal of Human Rights, Forthcoming
  Neve Gordon, Ben-Gurion University of the Negev
  Date Posted: August 7, 2006
  Last Revised: August 22, 2006
  Accepted Paper Series
• Hospital's Activity-Based Financing System and Manager-Physician Interaction
  CORE Discussion Paper No. 2006/29
  David Crainich, Hervé Leleu and Ana Mauleon, Catholic University of Lille - Faculté Libre des Sciences Economiques (FLSE) , Catholic University of Louvain - Center for Operations Research and Econometrics (CORE) and Facultés universitaires Saint-Louis à Bruxelles - CEREC
  Date Posted: August 4, 2006
  Last Revised: August 22, 2006
  Working Paper Series
  4 downloads
• Medical Error as Reportable Event, as Tort, as Crime: A Transpacific Comparison
  Widener Law Review, Vol. 12, June 2006
  Robert B. Leflar and Futoshi Iwata, University of Arkansas School of Law and Sophia University - Faculty of Law
  Date Posted: August 3, 2006
  Last Revised: September 3, 2006
  Accepted Paper Series
  4 downloads
• New Estimates of the Demand for Physical and Mental Health Treatment
  Chad D. Meyerhoefer and Samuel H. Zuvekas, Agency for Healthcare Research & Quality (AHRQ) and Agency for Healthcare Research and Quality
  Date Posted: August 2, 2006
  Last Revised: August 2, 2006
  Working Paper Series
  17 downloads

Krugman: Why is health policy malpractice a conservative disease?

You can't read today's (or any day's) op-ed piece by Paul Krugman (or any other columnist in the N.Y. Times) unless you are a TimesSelect subscriber, so this link to his column, "Health Policy Malpractice") won't work for many of you. More's the pity. He compares the VA health care system (which by most measures appears to be working well -- excellent outcomes, low costs per patient) with Medicare Advantage (the managed-care plan that is a sufficient disaster that it can keep private insurers involved only by providing billions in subsidies).

What explains the VA's success? Here's Krugman's version:

The key to the V.A.’s success is its long-term relationship with its clients: veterans, once in the V.A. system, normally stay in it for life.

This means that the V.A. can easily keep track of a patient’s medical history, allowing it to make much better use of information technology than other health care providers. Unlike all but a few doctors in the private sector, V.A. doctors have instant access to patients’ medical records via a systemwide network, which reduces both costs and medical errors.

The long-term relationship with patients also lets the V.A. save money by investing heavily in preventive medicine, an area in which the private sector — which makes money by treating the sick, not by keeping people healthy — has shown little interest.

The result is a system that achieves higher customer satisfaction than the private sector, higher quality of care by a number of measures and lower mortality rates — at much lower cost per patient.

You might think that the government would be happy to see more veterans receive more of their care within the VA system, but you'd be wrong:

Not surprisingly, hundreds of thousands of veterans have switched from private physicians to the V.A. The commander of the American Legion has proposed letting elderly vets spend their Medicare benefits at V.A. facilities, which would lead to better medical care and large government savings.

Instead, the Bush administration has restricted access to the V.A. system, limiting it to poor vets or those with service-related injuries. And as for allowing elderly vets to get better, cheaper health care: “Conservatives,” writes Time, “fear such an arrangement would be a Trojan horse, setting up an even larger national health-care program and taking more business from the private sector.”

The irony isn't lost on Krugman: "Think about that: they won’t let vets on Medicare buy into the V.A. system, not because they believe this policy initiative would fail, but because they’re afraid it would succeed."

Meanwhile, the subsidies to lure private insurers into the Medicare managed care market push the costs to the government 11 percent higher than traditional Medicare and mortality rates are 40 percent higher than those of elderly veterans in the VA system. Krugman's conclusion:

On one side, then, the administration and its allies in Congress oppose expanding the best health care system in America, even though that expansion would save taxpayer dollars, because they’re afraid that allowing a successful government program to expand would undermine their antigovernment crusade and displease powerful business lobbies.

On the other side, ideology and fealty to interest groups make them willing to waste billions subsidizing private H.M.O.’s.

I don't really have a quarrel with Krugman's argument. Okay, maybe a nit to pick here or there (for example, the better comparison of costs-per-patient would have been between Medicare managed care, on the one hand, and the VA on the other -- Krugman implies that the VA's costs are lower than Medicare managed care, but he never actually says it. And research schlub that I am, I don't know where to go to get that missing piece of his argument.)

Also, I know it's dangerous to try to make policy on the basis of anecdote, but every medical student I know who rotates through the VA hospital here in Dallas comes back with horror stories of poor care (with respect to the technical component, the interpersonal component, and the amenities). It's just one hospital in a vast system, and the examples of bad care are likely to make more of an impression than the virtually silent and invisible examples of care that is provided well, but everyone I know rolls their eyes at the mention of the VA hospital. And yet, the VA stats speak for themselves, don't they?

Post-grad opportunity at Harvard

From I. Glenn Cohen, a fellow at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics (Harvard Law School):

The Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School

2007-2009 Post-Graduate and Mid-Career Fellowship Program

Call for Applications: Deadline October 16, 2006

The Petrie-Flom Center is an interdisciplinary research program at HarvardLaw School dedicated to the scholarly research of important issues about the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research, and bioethics.

The Center is now accepting applications for its second group of post-graduate/mid-career fellowships starting in August 2007. These are two-year full-time academic research fellowships paying $60,000 per year, plus benefits.

Applicants must hold a degree in law or some other graduate discipline that they intend to apply to issues of health law policy or bioethics. The Center particularly encourages applications by those who intend to pursue careers as law professors, but will consider any applicant who demonstrates an interest and ability to produce cutting-edge scholarship in the areas of health policy, biotechnology or bioethics during the term of the fellowship.

Fellows chosen for the 2007-09 term will join an outstanding inaugural group of fellows who started in August 2006, as well as senior fellow Frances Kamm, one of the world's leading moral philosophers, who will be in residence at the Center during the 2007-08 academic year. Detailed information about the fellowship program, our
current fellows, and how to apply is available at
www.law.harvard.edu/programs/petrie-flom/.

Applications are due no later than October 16, 2006. Please note that this deadline is several months earlier than last year's.

Will Christian Science health plan count in Massachusetts?

As recently reported by the AP (courtesy of the Portsmouth (NH) Herald), health care regulators in Massachusetts are beset by a bevy of difficult issues in the wake of the Bay State's passage of a universal health care law:

When Gov. Mitt Romney signed the Massachusetts' health care law in April, it was hailed as a watershed moment.

Under the new law, Massachusetts is the first state to require all residents to have health insurance by July 2007.

The poorest will receive subsidized care, while everyone making more than three times the federal poverty level will be required to have private insurance, either through their employer or on their own.

To encourage employers to offer insurance, the law imposes an annual $295 per-worker fee on employers that don't offer insurance but employ 11 or more workers.

Christian Scientists want to make sure the new regulations recognize the church's own health plan, based on spiritual healing instead of medications and surgery, as a legitimate health care plan both for employers and individuals. . . .

[Jane Warmack, head of the church's legislative division] said the church wants to make sure other health care plans that don't rely on invasive medical care are put on an equal legal footing with other insurance plans.

"The legislative intent behind the law was to ensure that Massachusetts residents would be provided health care," she said. "It wasn't to dictate a particular kind of health care."

She said she also wanted to make sure that individuals who opt for alternative plans would not be penalized.

"What's at stake is people's access to the type of health care they want and for some people that is spiritual healing," she said.

The church already has testified before the state Division of Health Care Finance and Policy, which will write the final regulations. Those are expected sometime in early September, according to Dick Powers, spokesman for the Executive Office of Health and Human Services.

"We listened and read everyone's testimony and all of it will be taken into consideration," Powers said.

Powers also pointed to a portion of the law that would allow individuals to avoid tax penalties if they file an affidavit with their income tax returns stating "sincerely held religious beliefs" were the basis of their refusal to obtain "creditable coverage."

AHLA's Health Lawyers Weekly (Sept. 1)

Here's the table of contents from Friday's "Health Lawyers Weekly," a free member benefit from the American Health Lawyers Association (and reprinted here with their permission):

September 1, 2006 Vol. 4, Issue 34
Top Stories

• Specialty Hospitals Associated With Increased Utilization, MedPAC Finds
  Physician-owned heart hospitals are associated with a significant increase in the rate of cardiac surgeries in the market where the hospital is located, according to a Medicare Payment Advisory Commission (MedPAC) 2006 Report to Congress, Physician Owned Specialty Hospitals Revisited. According to the report, the entrance of a physician-owned cardiac hospital into a market was associated with a 6% increase in the number of cardiac surgeries per 1,000 Medicare beneficiaries. Full Story
• Schering-Plough Will Pay $435 Million To Settle Allegations Of Illegal Marketing, Fraud
  Schering-Plough Corp. and one of its subsidiaries have agreed to a $435 million global settlement to resolve criminal charges and civil claims that they engaged in illegal sales and marketing schemes and defrauded Medicaid, U.S. Attorney for the District of Massachusetts Michael Sullivan announced August 29.The settlement stems from allegations that the company marketed its drug Temodar and Intron A for so-called "off label" uses that had not been approved by the Food and Drug Administration (FDA). Full Story

Articles & Analyses

• Final Stark Exception And Anti-Kickback Safe Harbor For Electronic Health Records And E-Prescribing, By Jill M. Girardeau, Womble Carlyle Sandridge & Rice, PLLC

Current Topics

• Criminal Law
  Fourth Circuit Vacates Physician's Drug Trafficking Conviction Citing Improper Jury Instruction
• EMTALA
  U.S. Court In Alabama Finds CMS Investigation Report Admissible In EMTALA Action
• ERISA
  Eleventh Circuit Applies Supreme Court's Sereboff Decision To ERISA Plan Subrogation Claims
• Food and Drug Law
  FDA Issues Draft Guidance, Schedules Hearing On Emergency Research
• Fraud and Abuse
  1. BCBSA Says Anti-Fraud Efforts Saved $249 Million In 2005
  2. Update
  3. OIG Approves Charitable Organization's Proposed Subsidization Of Medicare Part D Premiums For Certain Patients With Kidney Disease
  4. Michigan Appeals Court Finds Sufficient Evidence Of Wrongful Intent To Sustain Medicaid Fraud Charges
  5. U.S. Court In Illinois Dismisses Second Amended Qui Tam Complaint Against Pharmacy Benefit Services Company
• Healthcare Access
  California Governor Announces New Initiative To Reduce Drug Costs
• Hospitals and Health Systems
  JCAHO Issues Revised Medical Staff Standard For Comment
• Insurance
  Census Bureau Finds Number Of Uninsured Grew Between 2004 And 2005
• Long Term Care
  North Dakota Supreme Court Finds Wife May Be Liable For Nursing Home Bills Of Institutionalized Spouse If She Had A Valid Contract With Home
• Managed Care
  Pennsylvania Supreme Court Finds HMO Is Exempt From Complying With Anti-Subrogation Provision Of State Automobile Insurance Law
• Medicaid
  CMS Issues Interim Final Rule On Medicaid, SCHIP Improper Error Rate Estimation
• Medical Malpractice
  Minnesota Appeals Court Finds Lower Court Erred In Directing Verdict For Radiation Therapy Center In Negligence Action
• Medicare
  1. Public Interest Group Sues CMS Alleging Part D Marketing Guidelines Violate Free Speech
  2. OIG Finds Oncology Demonstration Data Unreliable
  3. Lieberman Says Senate Must Address Impending Medicare Physician Payment Cuts
  4. CMS Plans To Review Its Medicare Payment Codes For Inhalation Drugs
  5. CMS Proposes Prohibition On Midyear Benefit Enhancements By MA Plans
  6. CMS Announces FY 2007 Update To Hospice Wage Index
  
  (c) 2006, AHLA. Reprinted with permission.

U.S. research: running on empty?

Today's N.Y. Times has a piece ("The State of Research Isn't All That Grand") discusses the implications for the U.S. economy of reduced R&D expenditures in both the public and private sectors. The balanced conclusion:

In global R.& D. rankings, the United States is still the clear leader in spending, with 34 percent of the total. In fact, about half of all such spending comes from just two nations: the United States and Japan.

But the United States falls down the list when it comes to more meaningful comparisons.

According to the Organization for Economic Cooperation and Development, the nation ranks seventh in R.& D. spending as a share of the economy, trailing Sweden, Finland, Japan, Switzerland, Iceland and South Korea. In spending on basic research as a share of R.& D., the United States ranks 11th. And when measuring nondefense research as a share of the economy, it’s 22nd.

Looking ahead, there is good reason to expect even greater pressure on R.& D spending in the United States. The federal government will be only more constrained in its ability to invest in research as large unfunded commitments like Social Security and Medicare come due. Corporate America will continue to face competitive global pressures, seeking investments that pay off in the short term. And fast-developing countries like China and India will strive to become even more powerful global forces.

It all leads to a question: Where will the innovation come from to drive the American economy of the future?