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Teaching Hospital Update March 28 - April 1, 2011


Email Alert

April 1, 2011

By Webb Millsaps*

CMS Releases Proposed Regulation on Medicare Accountable Care Organizations

On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) released a long-anticipated proposed rule, addressing some of the many specific questions about how Medicare's "Shared Savings Program" will function. The Shared Savings Program, established under the Affordable Care Act (ACA) to begin January 1, 2012, is ACA's particular version of an accountable care organization (ACO) for Medicare beneficiaries.

The proposed rule, to be published in the Federal Register on April 7, 2011, will be open to public comment until June 6, 2011. The Shared Savings Program aims to financially reward participating ACOs that lower costs while meeting quality standards.

In a conference call with reporters when the proposed rule was releases, U.S. Department of Health and Human Services Secretary Kathleen Sebelius said that ACOs would help reduce fragmented care and align payment with the most effective care. By facilitating the formation of ACOs under the Shared Savings Program, Sebelius said that even after all anticipated performance incentives are paid to qualifying ACOs and their healthcare providers, the federal government would save up to $960 million over three years.

"For too long, it has been too difficult for healthcare providers to work together to coordinate and improve the care their patients receive. That has real consequences: patients have gaps in their care, receive duplicative care, or are at increased risk of suffering from medical mistakes. ACOs will improve coordination and communication among doctors and hospitals, improve the quality of the care their patients receive, and help lower costs," Sebelius said in a statement.

Under the proposed rule, providers and suppliers can continue to receive traditional Medicare fee-for-service payments under Parts A and B, and be eligible for additional payments based on meeting specified quality and savings requirements.

Nathaniel Weixel, CMS Releases Proposed Regulation on Creating Accountable Care Organizations, BNA's Health Care Daily Report (Apr. 1, 2011) (note: registration is required to view this content).

Match Day: Primary Care Residencies Rise Again


For the second year in a row, more of the 15,000 plus medical school seniors decided to train for primary care. The increase is driven in part by a growing emphasis on primary care as the country moves forward with healthcare system reform, said Roland Goertz, MD, president of the American Academy of Family Physicians and a family physician in Waco, TX.

"We believe an important element is recognition that primary care medicine is absolutely essential if we are to improve the quality of healthcare and help control its costs," said Dr. Goertz. U.S. seniors filled 1,301 family medicine positions, up 11.3% from 1,169 in 2010, according to the National Resident Matching Program. This year's U.S. medical school graduates filled 48% of available family medicine slots, up from 44.8% in 2010.

Internal medicine matches for U.S. seniors rose 8%, to 2,940 from 2,722 in 2010. This year's class of U.S. graduates filled 57.4% of available internal medicine slots, up from 54.5% in 2010. In internal and family medicine, a greater percentage of slots were filled by U.S. seniors even as the overall number of available positions increased. The number of U.S. senior medical school students entering pediatrics internships rose 3.3% in 2011 versus 2010.

Residencies not filled by U.S. seniors went to past medical school graduates, foreign graduates of international medical schools, and American citizens who attended medical school abroad.

Carolyne Krupa, Primary Care Residencies up Again on Match Day, Am. Med. News (Mar. 28, 2011).

FDA Panel: No Support for Linking Food Dyes and Hyperactive Children

By a vote of eleven-to-three, the U.S. Food and Drug Administration's (FDA's) Food Advisory Committee decided that there is insufficient evidence to conclude that artificial food coloring dyes contribute to hyperactivity in children.

However, the panel did not rule out that food coloring might have a negative behavioral effect on kids. The committee, which included outside experts in nutrition, environmental health, toxicology, food science, immunology, and psychology, agreed that more studies need to be done, and was split on the question of whether thousands of food products that contain dyes should have mandatory warning labels noting that there may be some risk when consuming the chemical coloring.

FDA is not required to follow the advisory committee determinations. Nevertheless, FDA often does follow the advice of such committees, and in this instance the Food Advisory Committees conclusions is likely to result in juices, candies, cereals, yogurts, and hundreds of other everyday foods continuing to maintain their brighter-than-bright hues due to chemical coloring.

There are over fifty studies on the effects of dyes, but FDA selected about thirty studies it wanted the panel to focus on. Of those thirty studies, the panel spent most of its two-day meeting discussing two particular studies. The meetings and subsequent voting on recommendation by the panel, was the result of a request by the Center for Science in the Public Interest (CSPI), which petitioned FDA in 2008 to ban eight of the nine FDA-approved food dyes, including Yellow No. 5, Red 40, and Blue No. 1 (CSPI has not petitioned for a ban on Citrus Red No. 3, a dye used only for one purpose, to make the skins of oranges a more vibrant color).

Emily P. Walker, FDA Panel Says No Support for Linking Food Dyes, Hyper Kids, MedPage Today (Mar. 31, 2011).

Palliative Care: Increasing Demand Despite Low Public Awareness


Palliative care isn't nearly as well known as, say, hospice care; in fact, people often confuse the two. Only 24% of people recently surveyed said they were familiar with the term palliative care. Yet, the use of palliative care is growing fast. Fifty-nine percent of hospitals (i.e., hospitals with fifty or more beds) now have palliative care programs. Hospitals tend to embrace palliative care because it appears to be cost-effective and may improve health outcomes. Patients—once they know about it—like it because it offers the hope of potentially feeling better.

Palliative care—from the Latin "palliare," which means "to cloak"—grew out of the hospice movement that began in the 1970s. As hospice care became more established, policymakers and clinicians realized that seriously ill patients, even when not facing death, could benefit from better pain and symptom management and other palliative care services. Today, hospice care is at one end of the spectrum of palliative care. But while hospice is generally offered to people who are expected to live six months or less, palliative care can be provided in conjunction with curative treatments.

Many patients who receive palliative care aren't expected to die anytime soon. Palliative care has a simple, relatively narrow goal: improve the quality of life for people who are dealing with serious chronic or life-threatening medical problems. People with diseases such as cancer, congestive heart failure, HIV/AIDS, and kidney failure often have tremendous problems with pain, shortness of breath, fatigue and nausea, among other symptoms. Especially in a busy hospital, it's challenging to keep these patients comfortable and pain-free and to help them deal with the difficult medical and personal decisions they may face. That's where palliative care comes in. Specially trained palliative care teams, which typically include a doctor, a nurse, a social worker, and a spiritual counselor, focus on relieving pain and managing symptoms. They coordinate a patient's care among different providers, if necessary, and help patients and their families determine care goals and make treatment decisions. If a patient is nearing death, the palliative care team can offer emotional and spiritual support.

Michelle Andrews, Demand Grows For Palliative Care, Kaiser Health News (Mar. 29, 2011).

EMTALA Jury Verdict Upheld in Maine Case

Eastern Maine Medical Center (EMMC) was previously found liable on an Emergency Medical Treatment and Active Labor Act (EMTALA) failure-to-stabilize claim brought by plaintiff, Lorraine Morin. EMMC requested a new trial and other relief, but the U.S. District Court for the District of Maine rejected those post-trial motions and upheld the jury verdict (Morin v. Eastern Maine Medical Center, D. Me., No. 1:09-cv-258, 3/25/11).

Morin was sixteen weeks pregnant when she presented to a hospital emergency department with contractions but was discharged only to later deliver her dead fetus at home. The original trial verdict, which remains intact, was a $50,000 compensatory damages award and a $150,000 punitive damages award.

Notably, in rejecting EMMC's request for a new trial, the district court took particular exception to the hospital's contention that a woman carrying a non-viable fetus was somehow owed less of a duty under EMTALA than a woman with a viable pregnancy. The court said that such a contention was "legally wrong and morally questionable." The court also stated that there was in fact substantial evidence to support the jury's verdict and that the court had not previously erred in allowing a particular nurse to testify in the case.

Federal Court Upholds Jury Verdict, Award, But Denies General Relief on EMTALA Claim, BNA's Health Care Daily Report (Mar. 31, 2011) (note: registration is required to view this content).

More Adults Going Without Medical Care Because of Costs

Increasingly, working-age Americans are going without health insurance and not seeking physician care for injuries or illness because they can't afford it, according to two new studies released in March.

A report by the New York-based Commonwealth Fund found that the portion of patients delaying medical treatment in the last year is trending upward. Findings from the group's biennial health insurance survey in 2010 show that an increasing percentage of working-age adults skipped office visits, medical tests, and prescriptions because of costs. Many survey respondents are going without health coverage after losing a job during the economic recession, according to Sara Collins, an author of the Commonwealth Fund study.

"This is largely because there are few affordable options for health insurance when job-based coverage is lost," she said. "We found that more than 70% of an estimated twenty-six million adults who tried to buy coverage in the individual market in the past three years reported difficulties finding affordable plans that met their needs. Nine million were turned down, charged a higher price or had a condition excluded from their coverage because of a preexisting condition."

An estimated forty-three million working-age adults reported that they or their spouses lost their jobs within the past two years, according to the study. Among those reporting a job loss, nearly half said they initially lost health benefits, too. Only 14% of those people continued coverage through COBRA, while a quarter were able to go on their spouses' insurance plans or find coverage elsewhere. This meant 57% of those losing both a job and health coverage were added to the ranks of the uninsured.

Charles Fiegl, More Adults Going Without Medical Care Because of Costs, Am. Med. News (Mar. 28, 2011).

AHLA Teaching Hospital Updates are intended to provide quick summaries of cutting-edge issues of interest to teaching hospitals and their counsel. Additional information and more in-depth coverage on these topics may be available from AHLA Health Lawyers weekly and appropriate AHLA Practice Groups.

*We would like to thank Webb Millsaps, Esquire (McDermott Will & Emery LLP, Washington, DC), for providing this week's update.

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