Massachusetts Implements Program for Disclosing Mistakes, Apologizing and Offering Compensation In Lieu of Litigation

In an effort to reform Medical Liability, Massachusetts has created what they call the “Road Map to Reform,’’  The purpose of this plan is for doctors and nurses to fully disclose mistakes to patients and apologize.  In addition, anyone, including patients or family members, can report a suspected error.  At that point the hospital will investigate the situation and determine if the medical staff or the hospital was at fault.  If they determine they were at fault, they will apologize and work with their malpractice insurers to determine the amount of compensation. Patients who accept the financial settlement surrender their right to sue, but those who decline the settlement can pursue legal action. On average in Massachusetts it takes 5 1/2 years for patients to be awarded money in the traditional litigation system, so this also creates a way for patients to receive financial compensation for their injuries earlier than the traditional litigation system.

This effort will first be tested out in 7 hospitals before implementing it statewide. The purpose of the program is to increase reporting of medical mistakes and cut down on lengthy litigation that they believe drives up health care costs.

Similar programs have been implemented in other states, and have been successful in decreasing the number of malpractice claims in addition to a decreasing the cost of medical liability insurance.

It is good ethical practice for health care workers to acknowledge their mistakes and apologize.  These types of programs may be a way to improve that practice, decrease litigation and help the injured party receive compensation earlier than in the traditional programs.

More information can be found in this recent article:

Kowalczyk, L. Massachusetts Hospitals Promise Openness, Apologies.  The Boston Globe.  Available at: http://bostonglobe.com/metro/2012/04/18/mass-hospitals-promise-openness-apologies/z7HH8c8J1aPUf2d4lYggvM/story.html

Governor of Washington State Suspends Policy that Would have Denied Payment for Certain ED Visits made by Medicaid Patients

In February I wrote about Washington State legislators enacting a law that would deny payment for ED visits that were deemed medically unnecessary. This law was set to take effect on April 1st of this year. However, Governor Chris Gregoire of Washington state recently announced that she is suspending this policy and is considering implementing the alternatives that were suggested and discussed in my original blog.

Friday, February 10, 2012

Update on Washington State Health Care Authority Denying Payment for Emergency Services of Medicaid Patients

Earlier this week I wrote about a new law in Washington State that would deny payment for all Emergency Department Visits that the Washington State Health Care Authority (HCA) deems "not medically necessary" in the ER. The Washington Chapter of the American College of Emergency Physicians, the Washington State Medical Association, and the Washington State Hospital Association have joined forces and have created an online petition to stop this. The petition can be found at http://www.thepetitionsite.com/3/stop-denying-payment-of-emergency-services-to-medicaid-patients/

In addition to the petition, they offer suggestions to save health care costs without denying Medicaid payments for Emergency Department visits. Their suggestions include:

• Reducing ED visits for narcotic-seeking behavior.
• Increasing access to primary care and reducing ED visits by collaborative use of next-day or same-day visits to primary care.
• Creating a "Generics First" initiative spearheaded by physicians to voluntarily develop a statewide drug formulary.
• Instituting an extensive case management program to reduce ED utilization by frequent users.
• Tracking emergency room visits to reduce ED shopping.

The new rule is set to take effect on April 1st. I will be watching closely for any updates

Regulation of Freestanding Emergency Departments

With the advent of new rules being implemented by health care reform, there will be an increasing need for access to health care.  In Texas, freestanding EDs have been created in an attempt to help increase access to health care.  However, what some do not realize, not all health care insurance will cover or reimburse for services provided by some of these EDs 

Texas currently licenses 37 freestanding emergency care clinics most of which are in the Houston area). Currently, Texas legislation requires that freestanding EDs must abide by EMTALA, provide laboratory testing necessary for emergency situations, provide radiology services such as X-ray, CT scans, ultrasound, be staffed by physicians and nurses trained in emergency medicine and have the ability to provide for patient transfers between the freestanding ERs and other medical facilities.

Starting September 1, 2012, Texas will require all freestanding emergency departments to be open 24 hours a day, 7 days a week. After this date, only licensed emergency centers may use emergency terminology (e.g, emergency or ER).to advertise themselves.  Hospital extension ERs do not have to abide by these rules.  Some insurers argue that if the freestanding ED is not associated with a hospital or open 24/7, that it is not an ED for billing purposes, and that has been their argument for not paying or reimbursing for these services.  It is believed that after implementation of these rules it may aid with the current insurance problems.

Other states are dealing with these facilities in different ways.  For example, a Washington State Senator has been trying for many years to obtain a moratorium on freestanding EDs until their effect on the health care system can be analyzed.  CMS is also trying to figure out how to deal with these centers as well.

As the increase in access to health care continues over the next few years, it will be very interesting to see what happens with these facilities, if their implementation expands across the country and the effect on regulations.

More information can be found in the following resources:

·         Texas Department of State Health Services, Freestanding Emergency Medical Care Facilities, 25 TAC §131.  Available at: http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=25&pt=1&ch=131

·         Texas Department of State Health Services, Directories of Freestanding Emergency Medical Care Facilities, Available at: http://www.dshs.state.tx.us/hfp/apps.shtm#freestanding

·         Eldridge, K. Eliminating Patient Confusion: New Regulations for Freestanding Emergency Rooms, iTriage. Available at: http://blog.itriagehealth.com/eliminating-patient-confusion-regulations-freestanding-emergency-rooms/

·         SoRelle, R.  The Emergence of Freestanding ED’s, Emergency Medicine News, June 2011.

·         SoRelle, R.  Washington Legislator Seeks to Stall Freestanding ERs, Emergency Medicine News, April 2012.

·         Welch, S.  My Night at Elite Care,  Emergency Medicine News, February 2012.

Texas Considering Changing Stem-Cell Transplant Rule

The Governor of Texas, Rick Perry, recently encouraged the Texas Medical Board to pass a rule covering adult stem-cell transplants (removing a patient’s own stem-cells and reinserting them at a later day).  Ironically this was prompted after the Governor had this same procedure performed on himself in July to help recovery from back injury. 

Although the FDA currently requires physicians to obtain approval before offering these experimental treatments, the proposed new rule would allow doctors to bypass the FDA and would be subjected to a Texas independent review board.  They feel that adult stem cells are not subject to FDA approval.  The FDA position is that they do not comment on specific state regulations or proposed regulations, but contend that they have reports that they have regulatory authority over “human cells, tissues and /or cellular and tissue-based products.” 

I personally feel these types of treatments are governed by the FDA and if these treatments are used without FDA approval, Texas could be on shaky ground with regards to federal laws currently in place.

More information can be found here:

Koppel, N.  Texas Eyes Change In Stem-Cell Rules.  Wall Street Journal. April 13, 2012.

Summary of the Supreme Court Arguments on the Affordable Care Act

Last week the Supreme Court heard oral arguments in support of and against the Affordable care act.  The first day covered whether they could even rule on constitutionality of the Affordable Care Act now, or if they must wait until the law actually takes effect in 2014.  There was discussion as to whether the Anti-injunction Act would apply to this situation.  The Anti-injunction Act says that taxes cannot be challenged until they are actually enforced.   The tone from the arguments and the court seems to be that the ACA is not a tax therefore unlikely that the Anti-injunction Act would apply.

The second day covered the much debated and controversial individual mandate.  The Court deliberated whether Congress can require individuals to purchase insurance and whether they can impose a penalty on those that do not purchase health insurance.  Some of the arguments in support of the individual mandate are that individuals should be required to buy into insurance when they are healthy, rather than just waiting until they are ill and then trying to obtain health insurance.  This would further help preventative health, by encouraging healthy individuals to get preventive screenings to help insure they maintain their good health and prevent or catch potentially negative outcome earlier.  Supporters of the individual mandate argue that Congress has the power to enforce the individual mandate under the Commerce Clause.  Opponents to the individual mandate argue that it is unconstitutional for Congress to force people to purchase health insurance.  There was also some discussion of whether if the Government forces citizens to purchase health insurance, than will this will allow them to force citizens to purchase other things in the future.  There has been argument that if you allow Congress force people to purchase health insurance, that next they can force people to buy vegetables or health club memberships.  However there is a clear difference.  Everyone at some point in their life will need some type of health care.

The last day of arguments covered the issue of if the Court does strike down the individual mandate, does it strike down the entire Affordable Care Act. There was some discussion that if they do strike down the individual mandate, it will be difficult to force insurers to ensure everyone, even those with preexisting conditions can obtain health insurance.  However they did feel that some of the provisions may be upheld.

The last day also included discussions of whether expansion of the Medicaid program under the Affordable Care Act will encroach on the rights of the States.  There were arguments that this provision coerces states to comply by giving them an offer they can’t refuse

After the 3 days of oral arguments, the Justices met to cast preliminary votes, but the final decision will not be made public until June.

Supreme Court Hears Oral Arguments on Health Care Law, http://www.jdsupra.com/post/documentViewer.aspx?fid=62b55af7-cb87-4e7a-aa4f-d958a7287521

Transcripts from Day 1 Supreme Court Oral Arguments on Health Care Law, http://www.nationaljournal.com/healthcare/transcript-day-1-supreme-court-oral-arguments-on-health-care-law-20120326

Transcripts from Day Two of Supreme Court Oral Arguments on Health Care Law, http://nationaljournal.com/healthcare/transcripts-from-day-two-of-supreme-court-oral-arguments-on-health-care-law-20120327

Transcripts from Day Three of Supreme Court Oral Arguments on Health Care Law, http://www.nationaljournal.com/healthcare/transcripts-from-day-three-of-supreme-court-oral-arguments-on-health-care-law-20120328

Transcripts from Day Three of Supreme Court Arguments, Part Two, http://nationaljournal.com/healthcare/transcripts-from-day-three-of-supreme-court-arguments-part-two-20120328?mrefid=site_search

Vicini, J. U.S. Supreme Court Takes up Healthcare in Secrecy, http://www.medscape.com/viewarticle/761316