S U P R A S P I N A T U S

The Fall Meeting of the Health Law Section will be held November 3, 2007 at the Otesaga Hotel in Cooperstown. The meeting will feature CLE programs and social events that provide participants with valuable networking opportunities.

To view the Save the Date brochure for the meeting, click here.

For additional information contact Linda Castilla at lcastilla@nysba.org.

The Washington Post reports on a study that shows paying hospitals additional money for compliance with specific performance measures doesn't necessarily improve patient care. Or, more specifically, doesn't improve patient care any better than voluntary quality improvement:

In 2003, the Centers for Medicare and Medicaid Services (CMS) launched the largest pay-for-performance pilot project ever in the United States. It included financial incentives for sticking to heart attack care guidelines, the study said.

A first look at data from 54 hospitals in the "pay-for-performance" group found some improvement in performance, such as better attention to the rule for prescribing aspirin in heart attack cases, according to the report published in the June 6 issue of theJournal of the American Medical Association.

But when the researchers looked at comparable data from 446 hospitals with a voluntary quality improvement program that paid no money, they found similar improvements in quality of care and outcome.

"But I don't think this is the end of the pay-for-performance idea," Glickman [the study's author] said. "It is the end of the beginning."

Time will tell if P4P can be hammered into something useful or whether it's another fashionable flash in the pan. One facet of the study was particularly interesting:

One problem in evaluating the results is that all the hospitals were performing at relatively high levels, said Dr. Albert Wu, a health policy and management professor at Johns Hopkins University School of Public Health.

"The study was done within a large nationwide process to improve quality, and looked at this subgroup of hospitals. So it was not surprising that everyone improved," he said.

"In terms of giving aspirin, for example, they started at or above 85 percent," Wu added. "It's hard to improve on that."

Dr. Wu's comment suggest that P4P in its current form will prove most effective for hospitals that begin with poorer performance records. If a health plan has P4P dollars to spend, it will want to spend them on hospitals that will improve the most per dollar. But such a paradigm would essentially reward poor performers while leaving the leaders with only the warm fuzzies for having 'voluntarily' improved their care record.

The full WaPo article can be accessed here.

A study reported in today's Washington Post suggests that electronic medical records do not in and of themselves improve patient care:

Electronic medical record systems are no guarantee that diabetes patients will get better care, a new study finds.

When used in a primary-care setting, "having an electronic medical record is not sufficient for insuring the quality of diabetes care," said study author Jesse C. Crosson, from the Department of Family Medicine at UMDNJ-New Jersey Medical School. "It really isn't going to change care by itself, it has to be implemented in a context in which people are trying to improve the quality of care."

Most interesting, the study suggests that EMRs can have a negative impact:

To measure the impact of electronic medical record systems on the quality of care, Crosson and his colleagues collected data on the care of 927 diabetic patients in 50 doctor's offices.

They found that in offices that used electronic medical records actually offered poorer quality of care compared with those doctors who didn't use them. Patient care in the 37 offices that didn't use electric medical records was more likely to meet guidelines for treatment and intermediate outcomes compared with the 13 offices using a computerized medical record system, Crosson's group found.

Conclusion?

"Just having electronic medical records is simply not enough," added Dr. John Hsu, a physician scientist in the division of research at Kaiser Permanente in Oakland, Calif. "How you integrate it into clinical practice is critical."

The full WaPo article can be accessed here.

UPDATE: The full article can be viewed in the Annals of Family Medicine, here.

The Department of Health reports progress on implementing the Berger Commission recommendations as they relate to hospitals in Chautauqua County:

The chairmen of boards of Brooks Memorial Hospital and the TLC Heath Care Network have agreed to work on consolidations of their two hospital systems into one governance structure, including an active affiliation with Westfield Memorial Hospital. Westfield Memorial will seek to convert to an upgraded diagnostic and treatment center with emergency care, establishment of four "observation beds" for up to 24 hours of care, retention of its outpatient programs and elimination of its inpatient beds. Westfield will retain its affiliation with St. Vincent Health System in Erie, Pa., and seek affiliation with the new system created by the consolidating of Brooks Memorial the TLC Health Network, which operates Lake Shore Hospital and Tri-County Memorial Hospital.

On the other side of the state, efforts to merge Ellis Hospital and St. Clare's in Schenectady have slowed on the issue of St. Clare's underfunded pension. This from a June 7 piece in the Albany Times Union:

St. Clare's Hospital, which is mandated by the state to merge with Ellis Hospital by 2009, has had a shortfall in its defined-benefit plan since the beginning of the decade. The pension fund now is worth $35 million, but is short another $34 million due to investment losses and reduced payments from St. Clare's because of financial difficulties.

. . .

The two hospitals hope to get a piece of $550 million in grants the state is giving out this summer to the 81 hospitals and nursing homes that have been told to merge or close. More grant money could be available once this round is finished, according to the state Department of Health.

Claudia Hutton, a spokeswoman for the department, said the grants could cover pension costs, along with other closure expenses such as construction, legal fees, debt and severance fees.

But a dispute over who pays the pensions is not an excuse to stop merger talks, she said.

Meanwhile, Governor Spitzer remains unmoved by efforts to scale back the Berger recommendations:

Spitzer reaffirmed his view that the health care restructuring law passed six months ago should not be amended, although the health commissioner could adjust plans to meet with community needs. Bellevue Woman's Hospital is set to close under the plan.

According to the Albany Times Union:

Gov. Eliot Spitzer said Tuesday he has been persuaded to support a bill to legalize marijuana use to treat some very ill people.

. . .

"You learn, you study, you evolve," Spitzer said about his reversal on the medical marijuana bill. "I met with a fair number of people and there were people whose judgment I respect."

From BusinessWeek online:

New York-based Commonwealth Fund, a nonpartisan group that does health-care research, decided to issue a report card on how each state is doing on health care as a tool to identify areas of success and failure. Its researchers measured each state on 32 indicators, such as the percentage of people insured, the number of adults who receive screening and preventive care, hospital admissions for people with chronic illnesses, infant mortality, deaths from treatable cancers, and equity-of-care gaps by income and insurance status.

One stark finding: Even in the best states, performance fell far short of optimal standards. The percentage of adults age 50 or older receiving all recommended preventive care ranged from a high of 50% in Minnesota to a low of 33% in Idaho, while the percentage of diabetics receiving proper care ranged from 65% in Hawaii to 29% in Mississippi.

The report is accessible on the Commonwealth Fund's website, here.

Top officials from the United States Departments of Education, Justice, and Health and Human Services have released their report after a review of some of the issues raised by the shooting tragedy at Virginia Tech. The report addresses confusion and differing interpretations about state and federal privacy laws and regulations that impede information sharing and the capacity of the state and local mental health delivery systems to meet the full range of mental health needs. The report may be found here.

According to an IRS press release:

The Internal Revenue Service today released for comment and discussion a draft Form 990, the annual return required to be filed by tax-exempt organizations to report information about their operations. The IRS hopes to have the form ready for use for the 2008 filing year (returns filed in 2009).

. . .

The redesign of Form 990 is based on three guiding principles:

• Enhancing transparency to provide the IRS and the public with a realistic picture of the organization;
• Promoting compliance by accurately reflecting the organization's operations so the IRS may efficiently assess the risk of noncompliance; and
• Minimizing the burden on filing organizations.

According to this article posted June 14 on the Capital District Business Review's website,

Capital District Physician's Health Plan has distributed more than $3 million in incentive funds to primary care doctors and specialists who have implemented electronic medical record systems in their offices.

The full article is accessible on the Business Review's website here.

Disclosure: The author of this post is employed by CDPHP.

An article published yesterday on the Computerworld website discusses the first known HIPAA security audit.

In March, Atlanta's Piedmont Hospital became the first institution in the country to be audited for compliance with the security rules of the Health Insurance Portability and Accountability Act (HIPAA).

The audit was conducted by the office of the inspector general at the U.S. Department of Health and Human Service (HHS) and is being seen by some in the health care industry as a precursor of similar audits to come at other institutions.

Neither Piedmont nor HHS officials have publicly confirmed the audit or spoken about it. That silence has sparked considerable curiosity about why Piedmont was targeted as well as the scope of the audit and the kind of information HHS was seeking.

A document obtained by Computerworld from a reliable source indicates that Piedmont was presented with a list of 42 items that HHS officials wanted information on within 10 days.

For a full list of the 42 items click through to the Computerworld article here.

Addressing the New York State Council on Graduate Medical Education, Commissioner of Health Richard Daines suggested that GME programs in New York are aberrational:

My concerns chiefly have to do with all the external pressures, expectations, demands and perverse incentives piled upon GME in New York.

Like Australian marsupials, New York GME has evolved differently here than in most of the rest of the country. Enormous resources are channeled through GME and vast expectations are raised for fulfillment by GME. If we fail to deliver on those expectations, GME may be held to blame.

In the rest of the speech, the Commissioner raised four specific concerns with the current state of GME, reproduced here in excerpt:

First, there is a problem heading towards crisis across New York in the supply, specialization and geographic distribution of the practicing physician workforce. . . . In the first weeks in my new position I heard from several major groups that addressing this would require major new investments in GME. . . . If supporting the nation's largest, most expensive GME program were the answer to workforce shortages, New York would already be Nirvana.

. . .

Second, I am alarmed that funding channeled through graduate medical education has come to be regarded as a general and essential hospital revenue stream rather than as a proper payment for the proper costs and value of GME itself.

. . .

Third, I am unconvinced by the arguments made for disproportionately large GME expenditures and GME programs as independent economic drivers and therefore niches or sectors to be maximized on their own merits.

. . .

Fourth, I am troubled by the positive relationship that some draw between New York's reliance on GME and success in biomedical research. This is not borne out by the facts.

The full transcript of Dr. Daines' remarks is available on the Department of Health website here.

I will be posting on items published in the New York State Register that are of interest to health lawyers. I will also write about new Federal regulations that are particularly noteworthy or significant to health lawyers. If you see something you think I should write about, let me know. You can email me at msmith@icrh.com.

The New York State Department of Health is creating a new Part 1001 for Assisted Living Facilities. The proposed rule was published on March 28, 2007. Comments were due May 14. The new regulations implement the new statutory provisions governing these facilities, which should enable them to act more like health care facilities than apartment houses. See the full text of the rule here.

The New York State Office of Mental Health published an emergency ruling on March 9, 2007 to "simplify and make equitable" Comprehensive Outpatient Program (COPS) funding and non-COPS funding. The Spring 2006 edition of the Health Law Journal contains an interesting article regarding this issue by Justin Frazer.

Despite being urged by some of its membership to call for an outright ban on retail-based redi-clinics, the American Medical Association has called for an "investigation" into conflicts of interest inherent in retail/provider partnerships.

Specifically, AMA voted to:

• ask the appropriate state and federal agencies to investigate ventures between retail clinics and pharmacy chains with an emphasis on inherent conflicts of interest in such relationships, patients' welfare and risk, and professional liability concerns.
• continue to work with interested state and specialty medical societies in developing guidelines for model legislation that regulates the operation of store-based health clinics.
• oppose waiving any state and/or federal regulations for store-based health clinics that do not comply with existing standards of medical practice facilities.

. . .

But that's not all.

[In addition, p]hysicians today approved an additional principle that seeks equal treatment for physicians regarding health insurers' co-payment policies. These financial incentives may inappropriately steer patients to these clinics on the basis of cost rather than quality of care.

"Health insurers are allowing store-based health clinics to waive or lower patient co-payments, while forcing physicians to collect these fees, said Dr. Carmel. "The AMA believes health insurers should be prohibited from waiving or lowering co-payments only for patients that receive services at store-based health clinics."

This Chicago Tribune piece is interesting for this quote:

"There is no more urgent issue than this for the AMA," Dr. Kamran Hashemi, a family physician from South Barrington, said, urging the organization to push for more regulation of retail clinics. "This issue speaks to what all of us do every day in practice." If the AMA does nothing, Hashemi said, "in five years, the chairs [at the AMA] meeting will be filled with representatives from Walgreens, Wal-Mart" and other retail outlets.