Washington Watch: MedPAC Recommends 2008 Payments
Washington Watch: MedPAC Recommends 2008 Payments
On January 10, the Medicare Payment Advisory Commission (MedPAC) voted unanimously to approve a recommendation to Congress that it increase payments to doctors in 2008 under the Medicare physician fee schedule by a figure currently estimated to be 1.7%. In action the previous day, MedPAC also approved a recommendation to Congress that Medicare payments to long-term care hospitals not be increased in 2008 and that payment rates for inpatient rehabilitation facilities be raised by 1% in FY 2008.
Without congressional intervention this year, Medicare payments to doctors in 2008 will be cut by 10% under the current payment formula. While commissioners expressed considerable confusion over congressional intent regarding the $1.35 billion "Physician Assistance and Quality Initiative Fund" created by Congress late last year for 2008, they ultimately agreed that the fund should be used to pay for the 1.7% increase but not to make the increase higher.As for MedPAC's recommendations on ways to fix Medicare's physician payment system, it is expected that the commission's report to be filed with Congress in March will chart two alternative paths. One will probably entail setting expenditure targets encompassing all providers, not just limiting the expenditure target to physicians, which is the case under the current system. The other path would repeal the current expenditure target known as the sustainable growth rate (SGR) formula. That approach also would involve "developing and adopting new approaches for improving the value" of Medicare spending.
The commission appears divided on whether the SGR should be repealed altogether, however. If there is no agreement that the SGR should be repealed, another option would be to widen expenditure targets to include all types of providers. MedPAC Chair Glenn Hackbarth said he sees "broad agreement" on the commission for that option and for a component setting expenditure targets on a geographic basis. Other components tantamount to a transformation of the U.S. health system involve combining providers into accountable health systems that would be rated on the quality and efficiency of their care and paying them accordingly.
MedPAC is not prepared to advise Congress which of the two paths to take in overhauling Medicare's physician payment system. But commissioners cautioned that whatever path Congress takes, a substantial investment of new resources in the Centers for Medicare and Medicaid Services will be essential to establishing the new system.
Senator John Ensign (R-NV) has reintroduced legislation he sponsored in the 109th Congress that places a $750,000 cap on non-economic damages awarded in medical malpractice cases. The bill - S. 243 - limits the damages collected from any one provider to $250,000 with a total cap of $750,000. The measure does not limit economic damages, but it does place caps on attorneys' fees. Last year, the measure faced heavy opposition from Democrats and trial lawyers, and it is likely that both will oppose it again.
Ensign said the bill is modeled after similar legislation in Texas that has helped lower medical malpractice insurance premiums for providers in that state. In its statement supporting Ensign's bill, the American Medical Association (AMA) agreed that the Texas law has kept medical malpractice premiums down and improved patients' access to care.
Meanwhile, the consumer watchdog group Public Citizen released a report on January 10th concluding that "there is no medical malpractice lawsuit crisis in America." In its news release announcing the report, Public Citizen cited as more critical problems "a lack of attention to patient safety, the high incidence of preventable medical errors and the lack of accountability for a small set of doctors who account for a majority of medical malpractice payments."
On December 1, 2006, the U.S. District Court for the District of Kansas granted a motion of summary judgment to a Kansas not-for-profit hospital, thereby dismissing an inadequate screening claim under Emergency Medical Treatment and Active Labor Act (EMTALA). The initial suit was brought by a woman whose husband collapsed and died after he was made to wait in a hospital emergency department (Parker v. Salina Regional Health Center Inc., D. Kan., No. 05-04066-KGS, 12/1/06).
The facts in this case involve plaintiff Oneita Parker, who is the surviving widow, and the defendant Salina Regional Health Center, Inc. (SRHC). On June 7, 2003, the plaintiff drove the decedent, Mr. Parker, to SRHC's ED. When plaintiff and Mr. Parker arrived at the ED, plaintiff observed the ED registration clerk with a couple and a little girl. The Parkers waited for approximately 20 minutes, during which time Mr. Parker walked, more than once, under his own power between the waiting area of the ED and outside. At the end of this 20-minute period, Mr. Parker collapsed, became unresponsive, and a Code Blue was called, triggering immediate treatment of Mr. Parker. After approximately two hours of emergency medical treatment, Mr. Parker was pronounced dead. At the time of his death, decedent weighed more than 300 pounds and had a medical history as a diabetic with congestive heart failure.
Defendant sought a motion for summary judgment on plaintiff's EMTALA claim. Plaintiff listed the following points as genuine issues of material fact regarding her EMTALA claim against the defendant:
The court began its reasoning by reviewing the EMTALA statute which created a cause of action against hospitals that fail to appropriately screen and/or stabilize patients. As to conducting an 'appropriate' medical screening examination, the court stated that hospitals specifically are obliged to create standard emergency room screening procedures based on the hospital's particular needs and circumstances. Thus, the court views the essence of EMTALA as that of a hospital's obligation measured by whether it treats every patient perceived to have the same medical condition in the same manner. EMTALA is 'neither a malpractice nor a negligence statute;' so when a court must resolve failure to screen or conduct appropriate screening exam claims under EMTALA, the only question to review is 'whether the hospital adhered to its own procedures, not whether the procedures were adequate if followed.' Furthermore, noted the court, 'mere de minimis variations from the hospital's standard procedures do not amount to a violation of hospital policy as a matter of law.'
Since the plaintiff contended that SRHC violated its own policy when the reception clerk sought Mr. Parker's insurance information prior to triage, the court cited SHRC's ED policy which stated:
"Whenever any individual comes to the emergency department and requests, or someone on behalf of the individual requests an examination or treatment for a medical condition, a record will be initiated by the triage nurse. The triage nurse will determine a level of need for care as per health center policy and prior to any inquiry regarding the individual's method of payment or insurance status."
The undisputed facts show that when the Parkers first arrived at SRHC's ED, no inquiry was made as to the Parker's method of payment or insurance status. However, plaintiff argued that the hospital violated its own policy since it appeared that some inquiry was made prior to triage by virtue of Mr. Parker seating himself at the registration desk.
The court found that the Parkers approached the registration desk of their own accord, and not at the behest of the SRHC registration clerk or as a condition precedent to Mr. Parker obtaining a triage. In the court's view, these facts "amount to a de minimis variation from hospital policy," that is so minuscule that the law does not refer to it and will not consider it. This conclusion also was supported by the federal regulations pertaining to the EMTALA statute which state:
Delay in examination or treatment.
(i) A participating hospital may not delay providing an appropriate medical screening examination. . . . in order to inquire about the individual's method of payment or insurance status. . . . [However,]
(iv) Hospitals may follow reasonable registration processes for individuals for whom examination or treatment is required by this section, including asking whether an individual is insured and, if so, what that insurance is, as long as that inquiry does not delay screening or treatment. Reasonable registration processes may duly discourage individuals from remaining for further evaluation.
In another one of her claims, plaintiff contended that defendants failed to provide Mr. Parker with an appropriate medical screening examination, in light of a disputed fact that upon arrival at the ED, plaintiff had advised SRHC's reception clerk that Mr. Parker was vomiting blood, experiencing difficulty breathing, had lower stomach pain and was possibly experiencing a heart attack.
The court disagreed, stating that even if it construed the disputed fact "in a light most favorable to plaintiff, the court fails to find a genuine issue . . . [T]he court's sole duty in an EMTALA case is to "ask only whether the hospital adhered to its own procedures, not whether the procedures were adequate if followed." To that end, plaintiff fails to reference, nor has the court found upon its own review of SRHC's ED policy, a procedure by which a reception clerk is required to report symptoms of patients arriving at the ED to a triage nurse."
Finding that to inquire further into this issue would be akin to questioning whether SRHC's procedures were adequate, the court stated that EMTALA does not permit it to do so. Moreover, it decided that "plaintiff's argument regarding the reception clerk's actions in light of Mrs. Parker's assertions to her upon Mr. Parker's arrival at the ED is more akin to a negligence claim than an EMTALA claim." Therefore, the court could not find a genuine issue on plaintiff's EMTALA claim and, as a result, granted defendant's motion for summary judgment. For the complete decision, see http://op.bna.com/hl.nsf/r?Open=thyd-6w8kzj
On November 30, 2006, the U.S. District Court for the Middle District of Florida affirmed a trial court's summary judgment, which dismissed a lawsuit filed by a man claiming that a medical center violated EMTALA when it forced him to leave the facility before receiving proper treatment for a drug overdose (Johnson v. Health Central Hospital, 11th Cir., No. 06-12426).
On November 5, 2000, Benjamin Levi Johnson (plaintiff-appellant) was diagnosed by Heath Central Hospital (defendant-appellee) emergency physicians, with an overdose of the psychiatric medication benzodiazepine and was admitted to the ICU under "suicide precautions." According to plaintiff, defendant understood the seriousness of his medical condition but failed to perform the "customary charcoal procedure to remove the pills" and stabilize him. He also asserted that when he became combative, the ICU staff became angry with his psychotic conduct and treated him disparately from other patients in similar circumstances. The following day, plaintiff was released from the Health Central facility. He says that he was still in a psychiatrically disturbed state and that Health Central should have stabilized his condition prior to release or transferred him to a mental health facility for further treatment.
In the initial complaint, Johnson claimed the following injuries resulting from his alleged premature release: (1) 60% hearing and tone recognition loss; (2) a "schizaffective" disorder associated within non-convulsive seizures and a neuropsychiatric brain disorder; and (3) an arrest for irrational conduct, resulting in two years imprisonment. Johnson requested two damages in the amount of $4 million for past and future physical pain, mental anguish, bodily injuries, inconvenience, medical expenses, loss of earnings and diminished earning capacity.
In response, defendant filed, and was granted, a motion for summary judgment. Health Center's motion stated that Johnson had been transported to Health Central's ED with an alleged drug overdose and cocaine intoxication, was admitted to the ICU, became fairly combative, and ultimately left against medical advice. Defendant served a request for admissions on Johnson, to which he never responded. By not responding to the request for admissions, plaintiff in effect admitted that he was evaluated by an emergency medical physician; was placed under the care of a doctor who admitted him to ICU, was monitored on a 1:1 basis, and left the Health Central facility against medical advice.
Plaintiff submitted his own affidavit questioning material issues of fact regarding whether he left the hospital by his own choice or was forced out and questioning whether he was stabilized when he was forced to leave. In his affidavit, Johnson stated that he requested to use the phone at the hospital, only to be repeatedly told that he could not use the phone. However, after continual asking, he was given a form to sign, which he signed as a condition before using the phone. Johnson said he never read the form he signed and that he did not want to leave Health Central but was forced to leave and, approximately four hours after he left, was still "hallucinating," which resulted in his assault of a police officer, leading to his arrest and imprisonment.
The district court granted Health Central's motion for summary judgment, finding that the sole question was whether defendant complied with EMTALA. The court of appeals agreed with the trial court stating that an EMTALA violation arises when a hospital either fails to adequately screen a patient or when it discharges or transfers the patient absent stabilizing his emergency medical condition.
When viewed in the light most favorable to Johnson, the evidence, wrote the court, fails to establish that Health Central violated plaintiff's rights under the EMTALA. No evidence suggests that Johnson's medical screening was different from other patients. The court found that the only evidence that Johnson provided was "his own lay opinion that the 'customary charcoal procedure to remove the pills' should have been performed along with a psychological examination, which he was scheduled to undergo but voluntarily left the facility before receiving." Furthermore, in the issue of the stabilization requirement, the court determined that "the record fails to establish that Johnson was either 'transferred' or 'discharged' within the meaning of the EMTALA."
For a complete reading of the decision, see http://op.bna.com/hl.nsf/r?Open=psts-6w6k8d.
On January 10, the Medicare Payment Advisory Commission (MedPAC) voted unanimously to approve a recommendation to Congress that it increase payments to doctors in 2008 under the Medicare physician fee schedule by a figure currently estimated to be 1.7%. In action the previous day, MedPAC also approved a recommendation to Congress that Medicare payments to long-term care hospitals not be increased in 2008 and that payment rates for inpatient rehabilitation facilities be raised by 1% in FY 2008.
Without congressional intervention this year, Medicare payments to doctors in 2008 will be cut by 10% under the current payment formula. While commissioners expressed considerable confusion over congressional intent regarding the $1.35 billion "Physician Assistance and Quality Initiative Fund" created by Congress late last year for 2008, they ultimately agreed that the fund should be used to pay for the 1.7% increase but not to make the increase higher.As for MedPAC's recommendations on ways to fix Medicare's physician payment system, it is expected that the commission's report to be filed with Congress in March will chart two alternative paths. One will probably entail setting expenditure targets encompassing all providers, not just limiting the expenditure target to physicians, which is the case under the current system. The other path would repeal the current expenditure target known as the sustainable growth rate (SGR) formula. That approach also would involve "developing and adopting new approaches for improving the value" of Medicare spending.
The commission appears divided on whether the SGR should be repealed altogether, however. If there is no agreement that the SGR should be repealed, another option would be to widen expenditure targets to include all types of providers. MedPAC Chair Glenn Hackbarth said he sees "broad agreement" on the commission for that option and for a component setting expenditure targets on a geographic basis. Other components tantamount to a transformation of the U.S. health system involve combining providers into accountable health systems that would be rated on the quality and efficiency of their care and paying them accordingly.
MedPAC is not prepared to advise Congress which of the two paths to take in overhauling Medicare's physician payment system. But commissioners cautioned that whatever path Congress takes, a substantial investment of new resources in the Centers for Medicare and Medicaid Services will be essential to establishing the new system.
Senator John Ensign (R-NV) has reintroduced legislation he sponsored in the 109th Congress that places a $750,000 cap on non-economic damages awarded in medical malpractice cases. The bill - S. 243 - limits the damages collected from any one provider to $250,000 with a total cap of $750,000. The measure does not limit economic damages, but it does place caps on attorneys' fees. Last year, the measure faced heavy opposition from Democrats and trial lawyers, and it is likely that both will oppose it again.
Ensign said the bill is modeled after similar legislation in Texas that has helped lower medical malpractice insurance premiums for providers in that state. In its statement supporting Ensign's bill, the American Medical Association (AMA) agreed that the Texas law has kept medical malpractice premiums down and improved patients' access to care.
Meanwhile, the consumer watchdog group Public Citizen released a report on January 10th concluding that "there is no medical malpractice lawsuit crisis in America." In its news release announcing the report, Public Citizen cited as more critical problems "a lack of attention to patient safety, the high incidence of preventable medical errors and the lack of accountability for a small set of doctors who account for a majority of medical malpractice payments."
On December 1, 2006, the U.S. District Court for the District of Kansas granted a motion of summary judgment to a Kansas not-for-profit hospital, thereby dismissing an inadequate screening claim under Emergency Medical Treatment and Active Labor Act (EMTALA). The initial suit was brought by a woman whose husband collapsed and died after he was made to wait in a hospital emergency department (Parker v. Salina Regional Health Center Inc., D. Kan., No. 05-04066-KGS, 12/1/06).
The facts in this case involve plaintiff Oneita Parker, who is the surviving widow, and the defendant Salina Regional Health Center, Inc. (SRHC). On June 7, 2003, the plaintiff drove the decedent, Mr. Parker, to SRHC's ED. When plaintiff and Mr. Parker arrived at the ED, plaintiff observed the ED registration clerk with a couple and a little girl. The Parkers waited for approximately 20 minutes, during which time Mr. Parker walked, more than once, under his own power between the waiting area of the ED and outside. At the end of this 20-minute period, Mr. Parker collapsed, became unresponsive, and a Code Blue was called, triggering immediate treatment of Mr. Parker. After approximately two hours of emergency medical treatment, Mr. Parker was pronounced dead. At the time of his death, decedent weighed more than 300 pounds and had a medical history as a diabetic with congestive heart failure.
Defendant sought a motion for summary judgment on plaintiff's EMTALA claim. Plaintiff listed the following points as genuine issues of material fact regarding her EMTALA claim against the defendant:
SRHC violated EMTALA when its reception clerk sought the Parkers' insurance information prior to Mr. Parker being triaged;
SRHC violated its own policy when it failed to provide an appropriate medical screening examination to Mr. Parker upon arrival at the ED; and that
A 20-minute wait before receiving an appropriate medical screening examination is a violation of EMTALA and SRHC's own policy.
The court began its reasoning by reviewing the EMTALA statute which created a cause of action against hospitals that fail to appropriately screen and/or stabilize patients. As to conducting an 'appropriate' medical screening examination, the court stated that hospitals specifically are obliged to create standard emergency room screening procedures based on the hospital's particular needs and circumstances. Thus, the court views the essence of EMTALA as that of a hospital's obligation measured by whether it treats every patient perceived to have the same medical condition in the same manner. EMTALA is 'neither a malpractice nor a negligence statute;' so when a court must resolve failure to screen or conduct appropriate screening exam claims under EMTALA, the only question to review is 'whether the hospital adhered to its own procedures, not whether the procedures were adequate if followed.' Furthermore, noted the court, 'mere de minimis variations from the hospital's standard procedures do not amount to a violation of hospital policy as a matter of law.'
Since the plaintiff contended that SRHC violated its own policy when the reception clerk sought Mr. Parker's insurance information prior to triage, the court cited SHRC's ED policy which stated:
"Whenever any individual comes to the emergency department and requests, or someone on behalf of the individual requests an examination or treatment for a medical condition, a record will be initiated by the triage nurse. The triage nurse will determine a level of need for care as per health center policy and prior to any inquiry regarding the individual's method of payment or insurance status."
The undisputed facts show that when the Parkers first arrived at SRHC's ED, no inquiry was made as to the Parker's method of payment or insurance status. However, plaintiff argued that the hospital violated its own policy since it appeared that some inquiry was made prior to triage by virtue of Mr. Parker seating himself at the registration desk.
The court found that the Parkers approached the registration desk of their own accord, and not at the behest of the SRHC registration clerk or as a condition precedent to Mr. Parker obtaining a triage. In the court's view, these facts "amount to a de minimis variation from hospital policy," that is so minuscule that the law does not refer to it and will not consider it. This conclusion also was supported by the federal regulations pertaining to the EMTALA statute which state:
Delay in examination or treatment.
(i) A participating hospital may not delay providing an appropriate medical screening examination. . . . in order to inquire about the individual's method of payment or insurance status. . . . [However,]
(iv) Hospitals may follow reasonable registration processes for individuals for whom examination or treatment is required by this section, including asking whether an individual is insured and, if so, what that insurance is, as long as that inquiry does not delay screening or treatment. Reasonable registration processes may duly discourage individuals from remaining for further evaluation.
In another one of her claims, plaintiff contended that defendants failed to provide Mr. Parker with an appropriate medical screening examination, in light of a disputed fact that upon arrival at the ED, plaintiff had advised SRHC's reception clerk that Mr. Parker was vomiting blood, experiencing difficulty breathing, had lower stomach pain and was possibly experiencing a heart attack.
The court disagreed, stating that even if it construed the disputed fact "in a light most favorable to plaintiff, the court fails to find a genuine issue . . . [T]he court's sole duty in an EMTALA case is to "ask only whether the hospital adhered to its own procedures, not whether the procedures were adequate if followed." To that end, plaintiff fails to reference, nor has the court found upon its own review of SRHC's ED policy, a procedure by which a reception clerk is required to report symptoms of patients arriving at the ED to a triage nurse."
Finding that to inquire further into this issue would be akin to questioning whether SRHC's procedures were adequate, the court stated that EMTALA does not permit it to do so. Moreover, it decided that "plaintiff's argument regarding the reception clerk's actions in light of Mrs. Parker's assertions to her upon Mr. Parker's arrival at the ED is more akin to a negligence claim than an EMTALA claim." Therefore, the court could not find a genuine issue on plaintiff's EMTALA claim and, as a result, granted defendant's motion for summary judgment. For the complete decision, see http://op.bna.com/hl.nsf/r?Open=thyd-6w8kzj
On November 30, 2006, the U.S. District Court for the Middle District of Florida affirmed a trial court's summary judgment, which dismissed a lawsuit filed by a man claiming that a medical center violated EMTALA when it forced him to leave the facility before receiving proper treatment for a drug overdose (Johnson v. Health Central Hospital, 11th Cir., No. 06-12426).
On November 5, 2000, Benjamin Levi Johnson (plaintiff-appellant) was diagnosed by Heath Central Hospital (defendant-appellee) emergency physicians, with an overdose of the psychiatric medication benzodiazepine and was admitted to the ICU under "suicide precautions." According to plaintiff, defendant understood the seriousness of his medical condition but failed to perform the "customary charcoal procedure to remove the pills" and stabilize him. He also asserted that when he became combative, the ICU staff became angry with his psychotic conduct and treated him disparately from other patients in similar circumstances. The following day, plaintiff was released from the Health Central facility. He says that he was still in a psychiatrically disturbed state and that Health Central should have stabilized his condition prior to release or transferred him to a mental health facility for further treatment.
In the initial complaint, Johnson claimed the following injuries resulting from his alleged premature release: (1) 60% hearing and tone recognition loss; (2) a "schizaffective" disorder associated within non-convulsive seizures and a neuropsychiatric brain disorder; and (3) an arrest for irrational conduct, resulting in two years imprisonment. Johnson requested two damages in the amount of $4 million for past and future physical pain, mental anguish, bodily injuries, inconvenience, medical expenses, loss of earnings and diminished earning capacity.
In response, defendant filed, and was granted, a motion for summary judgment. Health Center's motion stated that Johnson had been transported to Health Central's ED with an alleged drug overdose and cocaine intoxication, was admitted to the ICU, became fairly combative, and ultimately left against medical advice. Defendant served a request for admissions on Johnson, to which he never responded. By not responding to the request for admissions, plaintiff in effect admitted that he was evaluated by an emergency medical physician; was placed under the care of a doctor who admitted him to ICU, was monitored on a 1:1 basis, and left the Health Central facility against medical advice.
Plaintiff submitted his own affidavit questioning material issues of fact regarding whether he left the hospital by his own choice or was forced out and questioning whether he was stabilized when he was forced to leave. In his affidavit, Johnson stated that he requested to use the phone at the hospital, only to be repeatedly told that he could not use the phone. However, after continual asking, he was given a form to sign, which he signed as a condition before using the phone. Johnson said he never read the form he signed and that he did not want to leave Health Central but was forced to leave and, approximately four hours after he left, was still "hallucinating," which resulted in his assault of a police officer, leading to his arrest and imprisonment.
The district court granted Health Central's motion for summary judgment, finding that the sole question was whether defendant complied with EMTALA. The court of appeals agreed with the trial court stating that an EMTALA violation arises when a hospital either fails to adequately screen a patient or when it discharges or transfers the patient absent stabilizing his emergency medical condition.
When viewed in the light most favorable to Johnson, the evidence, wrote the court, fails to establish that Health Central violated plaintiff's rights under the EMTALA. No evidence suggests that Johnson's medical screening was different from other patients. The court found that the only evidence that Johnson provided was "his own lay opinion that the 'customary charcoal procedure to remove the pills' should have been performed along with a psychological examination, which he was scheduled to undergo but voluntarily left the facility before receiving." Furthermore, in the issue of the stabilization requirement, the court determined that "the record fails to establish that Johnson was either 'transferred' or 'discharged' within the meaning of the EMTALA."
For a complete reading of the decision, see http://op.bna.com/hl.nsf/r?Open=psts-6w6k8d.
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