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Teaching Hospital Update - November 28-December 2, 2011


Email Alert

December 2, 2011

By C. Elizabeth O'Keeffe*

With World AIDS Day Observance, Assessment of Care Received by Americans With HIV

Only slightly more than one quarter of Americans infected with the AIDS virus are getting the form of medical care that maximizes their life expectancy, according to a new estimate. The goal of AIDS treatment is to suppress growth of HIV until the virus is no longer detectable in the bloodstream. Only 28% of the 1.2 million people living with HIV in the United States have their "viral load" controlled to that optimal degree, epidemiologists at the Centers for Disease Control and Prevention (CDC) reported Tuesday. "We have substantial work ahead to fully realize the benefit of treatment in the United States," Thomas Frieden, CDC's director, said in a news briefing two days before World AIDS Day on Thursday. The estimate is a new way of looking at the thirty-year-old AIDS epidemic. No other country has calculated quality of care by incorporating the experience of everyone infected with the virus, including people who don't know they have it and those who can't get or don't want treatment, a CDC spokeswoman said.

For people enrolled in HIV care, the fraction with a fully suppressed viral load is much higher and more encouraging--about 77%. Several years ago, CDC endorsed universal HIV testing of Americans. With new research showing that treated people are unlikely to transmit the virus to others, the agency is campaigning for physicians and health departments to make sure that people who are found to be infected get into treatment. About 80% of Americans with HIV know they are infected. About 20% are unaware--a situation that makes it much more likely they will transmit the virus to others. Slightly more than 75% of people who receive an HIV diagnosis are "linked to care" within four months, but only 50% stay in care.

David Brown, Only 28% of Americans with HIV are Getting Optimal Care, The Washington Post (Nov. 29, 2011).

Politics, Funding, and Health Insurance Exchanges

Thirteen states were awarded nearly $220 million in federal grants on Tuesday to help them erect the private health insurance marketplaces that are at the heart of the 2010 healthcare law--including eight states led by Republican governors who opposed the legislation. The announcement by the Obama Administration brings the number of states that have received such grants to twenty-nine. It also highlights the dual path that many Republican state leaders have been following when it comes to the law--petitioning the U.S. Supreme Court to strike it down, even as they ready their states for implementation in the event that the justices uphold the statute.

Six of the states granted funding on Tuesday are a party to the challenge to the law: Alabama, Arizona, Idaho, Michigan, Maine, and Nebraska. In New Mexico and Tennessee, Republican officials have been slow to take key steps toward setting up the marketplaces--known as "exchanges." And in April, New Mexico Governor Susana Martinez (R) vetoed a bill adopted by the state's majority-Democratic legislature that would have established a state-based exchange. The decision by Martinez and the other governors to hedge their bets by seeking federal preparation money speaks to a stubborn deadline in the law: if it stands, states that have not prepared in time will cede to the federal government key decisions about the exchanges' setup. In a news conference on Tuesday, U.S. Department of Health and Human Services Secretary Kathleen Sebelius described state progress as "impressive," adding, "states are moving at their own pace to get their programs up and running." To qualify for a final batch of federal funding, state legislatures must enact a series of legal and budgetary authorities that few Republican-led states appear close to achieving by June 29. On Tuesday, Rhode Island became the first state granted this final "level two" funding.

N.C. Aizenman, Foes of Healthcare Law are Among States Receiving Federal Money to Implement It, The Washington Post (Nov. 29, 2011).

SCOTUS and "Obamacare"

Just a little more than one hour after some House Democrats recently demanded an inquiry into U.S. Supreme Court Justice Clarence Thomas' ethics, Senate Republicans have stepped up the pressure on Justice Elena Kagan to take herself out of the court's decision on the healthcare reform act. The process repeated itself a few days later. House Judiciary Committee Chairman Lamar Smith (R-TX) called for the release of more documents about Kagan's role as President Barack Obama's solicitor general. Accusations about both justices, from the left and the right, show no signs of dissipating now that the Supreme Court has said it will review the constitutionality of Obama's signature domestic achievement, the Patient Protection and Affordable Care Act of 2010. Justices decide for themselves whether they have a conflict serious enough to warrant recusal from a specific case, and neither Kagan nor Thomas appears to be considering sitting out the biggest case of the term. Federal law requires judges, including those on the Supreme Court, to disqualify themselves when their "impartiality might be reasonably questioned," as well as for specific reasons such as a financial interest or the involvement of a family member in the litigation.

In addition, it calls for recusal when the judge has served in the government and "participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy." The charges against Kagan arise from her work as solicitor general, the government's top appellate lawyer. If she were still in the job, Kagan would be defending the healthcare law at the Supreme Court rather than deciding whether it is constitutional. Kagan was notified by the White House in March 2010--just before the law was passed--that she was under consideration to be named to the High Court. She said during her confirmation hearings that she played no role in preparing for the inevitable legal challenges that were to come. "I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred," Kagan said in a written response to questions from Republicans on the Senate Judiciary Committee. She said she had never been asked her opinion about the underlying constitutional and legal issues in the lawsuit or reviewed government documents filed in the case. Similarly, Attorney General Eric Holder Jr. said lawyers went out of their way to keep from involving Kagan in the discussions. But congressional Republicans say emails released to conservative groups under public records requests raise questions about the White House's contention she had been "walled off" from discussions about the healthcare act. One email from then-Deputy Solicitor General Neal Katyal says Kagan wanted to make sure her office was involved in strategy decisions, although Katyal said he took the lead and Kagan was not involved.

Robert Barnes, Healthcare Case Brings Fight Over Which Supreme Court Justices Should Decide It, The Washington Post (Nov. 27, 2011).

Trending: Personhood Amendments

Mississippi voters last month rejected an amendment to their state constitution that would have declared that life begins at fertilization. The result was somewhat unexpected. As recently as a few weeks ago, the so-called personhood amendment was considered almost certain to pass. Voters in Colorado have twice rejected similar amendments to declare that life begins legally at fertilization, in 2008 and 2010. But Mississippi, with its far more conservative bent, was considered much friendlier territory. Backers of the measure had made a special pitch to the state's large African-American community. In one ad, an OB-GYN named Freda Bush told voters, "you do not have to have a law or medical degree to know the truth and protect unborn babies from abortions."

Opponents of the measure, Amendment 26 on the ballot, argued--to some effect, as it turned out--that it simply went too far. One ad warned voters that the measure made no exceptions for cases of rape and would also ban birth control pills. (If it had passed, the amendment likely wouldn't have banned all birth control pills. But it would have banned those that work in part by blocking fertilized eggs from implanting in the uterus.)

Felicia Brown Williams, outreach director for Mississippians for Healthy Families, the group that successfully fought the amendment, says there was no single reason voters turned against the measure. "I think it was just a matter of making sure that the voters were informed," Brown says. "And when they were, they came to our side." But even with the loss, supporters of the amendment aren't giving up. Efforts are already under way to get similar constitutional amendments on the ballot in another half-dozen states next year, and to pass personhood legislation in at least two more states.

Julie Rovner, Mississippi Voters Reject 'Personhood' Measure, National Public Radio (Nov. 7, 2011).

A Camera a Day Keeps the MRSA Away?

A new study found that more doctors and nurses washed their hands when video cameras were installed in every room in their unit and the staff was continuously informed about rates of hand-washing compliance. While the hand-washing turnaround was "pretty amazing," one of the study's authors said it's unclear whether the measure helped achieve the ultimate goal--preventing infection transmission in the hospital--and whether it would be cost effective in other settings.

"Hand washing is an integral part of infection control," said Dr. Bruce Farber from North Shore University Hospital in Manhasset, NY. But, "rates of hand washing among healthcare workers are less than perfect." Cameras and timely feedback seem to be a strategy that can address that, he told Reuters Health. "It's certainly one tool that can be used. I certainly don't think it's ever going to be used by everyone, everywhere." Farber and his colleagues conducted the new study in their intensive care unit from 2008-2010. They installed $50,000 worth of cameras in hallways and patient rooms--pointing at every sink and hand sanitizer dispenser--as well as motion sensors in all doorways. Off-site reviewers monitored those videos and checked whether any doctor or nurse who came through a patient's door washed their hands within ten seconds, and if they did the same on the way out. Doing that earned workers a "pass," while waiting too long to wash up or not doing it at all counted as a "fail." Then, the system sent compliance rates by room to electronic boards in the ward's hallways and to supervisors, so all staff could see how well they were doing as a unit.

Before health workers started getting that constant feedback, less than 7% of them washed their hands immediately when entering or before leaving a patient's room, according to video records. That shot up to 82% in the weeks after the hallway messages started, and reached an average high of 88% over the next year and a half of monitoring. The researchers acknowledged in their report published in Clinical Infectious Diseases that the monitoring didn't take into account the quality of hand washing, and Farber said the criteria for adequate hand hygiene were "very strict and very difficult to adhere to." It's possible, the researchers added, that there are some cases when hand-washing isn't necessary, for example when a doctor is going into a patient's room but doesn't plan on touching the patient. Or, if a patient is falling out of bed or needs immediate pain relief, heading to the sink first might not be the best choice, added Dinah Gould, who has studied hand-washing interventions as a researcher at City University in London, but wasn't involved in the new study.

Genevra Pittman, When Cameras Are Watching, More Doctors Wash Up, Reuters (Nov. 30, 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 C. Elizabeth O'Keeffe, Esquire (University of Mississippi Medical Center, Jackson, MS), for providing this week's update.

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