Tuesday, February 21, 2012

amednews.com: Hot-button issues drive state CME mandates

At least eight states in the past five years have approved rules governing what subjects doctors should study as part of their continuing medical education.

Carolyne Krupa, Feb. 13, 2012.

Alarmed by news of rising prescription drug abuse, Delaware Gov. Jack Markell in November 2011 told policymakers to take action to ensure physicians prescribe narcotics and other controlled substances only to patients who need them.

His solution? Require doctors to take continuing medical education on the subject.

■State-mandated physician CME subjects
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■Region: States

As a result, the Delaware Board of Medical Licensure and Discipline is drafting a rule mandating that doctors take CME every two years on prescribing controlled substances.

"Nationally, there is a significant problem of abuse of prescription medications -- particularly controlled substances -- and we were seeing that in Delaware as well," said James Collins, deputy secretary of state and director of the Delaware Division of Professional Regulation.

The new CME requirement is meant to keep Delaware physicians as educated as possible about prescribing these medications, he said.

65 of 70 U.S. medical licensing boards require CME for medical license renewal. Three other states have responded to prescription drug abuse with CME mandates in recent years. But that's not the only growing public health concern states are targeting. Despite strong opposition from physician organizations, states often react to headline-grabbing issues by trying to impose CME requirements on doctors.

At least 16 states mandate what CME subjects physicians must study. Of those, eight states have approved 14 new course requirements in the past five years. They come in response to a variety of issues, including domestic violence, the aging population and more awareness of the burdens of health disparities on minority communities.

Such laws often are enacted without much thought to their practicality or long-term viability, said Steven DeToy, director of government relations for the Rhode Island Medical Society. "As a result, we start having mandated CME du jour, with a new requirement for every topic people get excited about. It makes legislators feel good. It makes regulators feel good," he said.

CME is a well-established part of medical practice, said Humayun Chaudhry, DO, president of the Federation of State Medical Boards. The organization now known as the American Academy of Family Physicians was the first specialty to approve CME requirements for its members in 1947. The New Mexico Medical Board was the first to mandate CME as a licensing requirement in 1971. Today, 65 of the nation's 70 medical licensing boards require physicians to take CME to renew a medical license.

"CME increases a physician's knowledge, skill and competence and provides current information to keep up with new developments in medicine, which results in the improvement of their patients' health and well-being," said Dan Wood, spokesman for the Medical Board of California. "CME is just one of the ways we encourage physicians to be the best they can be."

Impractical mandates?
Physician organizations staunchly object to legislators and policymakers -- for whatever their good intentions -- interfering with CME. The American Medical Association opposes state-mandated CME content and urges medical societies in states that have content-specific CME requirements to work toward having such rules rescinded or amended.

"The medical profession alone has the responsibility for setting standards and determining curricula in continuing medical education," AMA policy says.

At least 16 states mandate CME subjects for physicians. Mandated CME rules are particularly troublesome when they impose uniform requirements on all physicians, DeToy said. Rhode Island is a clear example of this, he said.

More than 15 years ago, the state enacted a law requiring physicians to take two hours of CME in bloodborne pathogens every two years. The law, in response to the AIDS epidemic, quickly caused problems as the mandated courses became repetitive and were irrelevant to some specialties.

Since then, the state has approved at least nine other subject areas -- including bioterrorism, medical ethics and palliative care -- that can be substituted for the bloodborne pathogen requirement to give physicians other options, DeToy said.

"Now there is a lot of talk about states pursuing these types of requirements for opiate prescribing, because that is the hot topic du jour, but I think we all know that when we put something into legislation, it is pretty hard to take out," he said.

In Massachusetts, rules took effect Feb. 1 that require physicians seeking to obtain a medical license or renew an existing one to complete at least three CME credits in pain management and opioid education, and two CME credits in end-of-life care. The opioid requirement is the result of legislation, and the end-of-life care rule was imposed by the Massachusetts Board of Registration in Medicine.

The Massachusetts Medical Society strongly opposed the rules, said Lynda Young, MD, the medical society's president. The penalty for not complying with the new law is forfeiture of licensure.

"We already have heard a lot of complaints from physicians who just think it's ridiculous that they have to do this," Dr. Young said. "We are concerned that physician competence is being defined by legislators or the board of medical registration. We really question why this is being applied to all physicians. Take a pathologist, for example. What do they need to know about opioid prescribing?"

Physician's crime leads to a mandate
Since April 2011, all doctors seeking licensure in Delaware have had to attest that they have received training on their obligations to report child abuse.

The requirement is the result of a serial child abuse case in the state. In August 2011, Earl Bradley, MD, of Lewes, Del., was sentenced to 14 life sentences without parole and an additional 160 years in prison after being convicted of multiple counts of assault and sexual exploitation of his young patients from 1998 to 2009.

Regulators are considering whether to make the mandated training part of the state's CME requirements, Collins said.

Meanwhile, the proposed rule requiring physicians to take CME for prescribing controlled substances would affect only physicians who prescribe such drugs, Collins said.

The Medical Society of Delaware is fighting the rule. "Prescription drug abuse is a complex, multifaceted issue, and it cannot be addressed simply through CME," said Mark Meister Sr., executive director of the Medical Society of Delaware.

The medical society opposes any mandated CME subjects. It's inappropriate for the political process to determine physician education, he said.

"The profession knows best what their educational needs and requirements are, and that can't be effectively legislated," Meister said.

State-mandated physician CME subjects
At least 16 states require physicians to take continuing medical education in specific subjects for medical licensure. How often physicians must take courses in the subjects and the number of credit hours required vary from state to state.

California: pain management, geriatric medicine, end-of-life care

Connecticut: infectious disease, risk management, sexual assault, domestic violence, cultural competence

Florida: MDs -- HIV/AIDS, prevention of medical errors, domestic violence; DOs -- HIV/AIDS, state laws and rules, professional and medical ethics, prescribing controlled substances, domestic violence, prevention of medical errors

Iowa: identifying and reporting abuse (for primary care physicians), chronic pain management, end-of-life care

Kentucky: domestic violence (for primary care physicians), HIV/AIDS

Massachusetts: pain management, opioid education (for physicians who prescribe controlled substances), end-of-life care, risk management

Nevada: medical ethics, weapons of mass destruction/bioterrorism, safe injection practices

New Jersey: cultural competency

New York: infection control, child abuse

Oklahoma: DOs -- prescribing controlled substances

Oregon: pain management and/or treatment of the terminally ill

Pennsylvania: patient safety, risk management

Rhode Island: bloodborne pathogens, universal precautions, bioterrorism, end-of-life care, Occupational Safety and Health Administration, medical ethics, pain management, infection control, modes of transmission or palliative care

Tennessee: prescribing controlled substances, pain management (for physicians who provide pain management)

Texas: medical ethics and/or professional responsibility

West Virginia: end-of-life care, pain management

Sources: American Medical Association, Federation of State Medical Boards and individual state medical boards

State Medical Licensure Requirements and Statistics, American Medical Association, 2012: catalog.ama-assn.org/Catalog/product/product_detail.jsp?productId=prod1910037

Continuing medical education overview by state, Federation of State Medical Boards, last updated Oct. 25, 2011: www.fsmb.org/pdf/grpol_cme_overview_by_state.pdf

Friday, February 17, 2012

BNA: Federal Court Allows Doctor to Pursue ADA, Other Claims After Stroke, Staff Suspension

BNA Snapshot:

Bhan v. Battle Creek Health System, W.D. Mich., No. 1:10-cv-202, 2/14/12

Key Holding: A physician whose privileges were suspended and later revoked by a pair of Michigan hospitals may pursue ADA claims, as well as civil rights and defamation claims under state law, against certain hospital and individual defendants named in his lawsuit.

Key Takeaway: Health system parents are not vicariously liable for acts of subsidiary hospitals without evidence justifying piercing of parents' corporate veils.

A Michigan physician whose privileges were suspended and later revoked by two hospitals may pursue claims under the Americans with Disabilities Act against one of the hospitals and defamation and civil rights claims under state law against the other hospital and its individual officers, a federal trial court ruled Feb. 14 (Bhan v. Battle Creek Health System, W.D. Mich., No. 1:10-cv-202, 2/14/12).

The U.S. District Court for the Western District of Michigan said the majority of the claims brought by Dr. Raakesh Bhan relating to the end of his long-standing relationships with Battle Creek Health System (BCHS) and Borgess Medical Center had to be dismissed.

The court said claims brought against the two hospitals' parents, Trinity Health Services and Ascension Health, respectively, also had to be dismissed because there was no basis for piercing the corporate veils of either hospital to hold its parent liable. Bhan cited no evidence to suggest that the separate corporate existence between the parents and subsidiaries had been “used to subvert justice or cause some other unfair result,” the court said.

The court rejected, however, the hospitals' argument that they enjoyed immunity from contract claims asserted in the case or under the Health Care Quality Improvement Act.

Some Claims Survive
The court, however, allowed claims under Michigan's Elliot Larsen Civil Rights Act against Borgess, its CEO Paul A. Spaude, its chief medical officer Dr. Terry Baxter, and its chief quality officer Robert Brush. It also allowed the ADA claims against BCHS, although it found ADA claims asserted against its current and former officers, Patrick Garrett, Denise Brooks-Williams, and Dr. Jeffrey Mitchell, had to be dismissed.

Finally, the court said the defamation allegations against Borgess, Spaude, and Baxter also could proceed, although those same claims asserted against BCHS and its officers had to be dismissed because of a failure to specify the nature of the alleged statements or allege that they were not privileged. The court noted that no parties had urged dismissal of the civil rights claims and that the Borgess defendants had not joined in BCHS's motion to dismiss the defamation claims.

The court found all of the remaining claims asserted against various parties had to be dismissed. Those claims included tortious interference with Bhan's advantageous business relationships with his patients and with the two hospitals, conspiracy to deny due process, breach of contract, and conspiracy to adversely affect Bhan's medical staff privileges.

ADA Claims Survive
The ADA claims asserted against BCHS related to actions allegedly taken against Bhan after he had, and recovered from, a stroke in 2007. The complaint alleged that Garrett, Mitchell, and Brooks-Williams required Bhan to undergo repeated independent medical exams despite the fact that each time, the examining physician concluded that Bhan was fit to resume his responsibilities at BCHS.

The court said it recognized that the protections of ADA Title III might not extend to a physician in Bhan's position but that it was too soon to dismiss the claim as a matter of law. “This Court recognizes that there are arguments on both sides of the issue of whether Title III of the ADA protects a physician who is seeking, has, or is deprived of staff privileges,” the court said.

“At this point in time, considering the status of the facts and law, this Court will deny BCHS's motion to dismiss,” the court said. “After the record is further developed, the Court will be in a better position to determine what Bhan's actual status is—i.e., whether he is an employee, client, customer, contractor, affiliate, etc.—and, whatever he is, whether he is covered by the ADA.”

Bhan is represented by Kent A. Bieberich and Vern J. Steffel Jr., with Steffel & Steffel, Battle Creek, Mich. The Trinity and BCHS defendants are represented by Benjamin W. Jeffers, with Dykema Gossett PLLC, Detroit, and Daniel J. Bretz, David A. Hardesty, and Jeffrey Allan Steele, with Clark Hill PLC, Detroit. The Ascension and Borgess defendants are represented by Craig H. Lubben, with Miller Johnson PLC, Kalamazoo, Mich.; Janice A. Anderson, with Polsinelli Shughart PC, Kalamazoo; and Matthew C. Hans and S. Jay Dobbs, with Polsinelli Shughart PC, St. Louis.

BNA: Proposed Rule Would Combine Data Banks For Practitioner, Health Care Integrity Data

The Health Resources and Services Administration has proposed transferring all data in the Healthcare Integrity and Protection Data Bank to the National Practitioner Data Bank and ceasing operations of the former.

According to a proposed rule that will appear in the Feb. 15 Federal Register, information previously collected and disclosed through the Healthcare Integrity and Protection Data Bank would be collected and disclosed through the National Practitioner Data Bank, consolidating the collection and disclosure of information from both data banks into one part of the Code of Federal Regulations.

The consolidation would be a result of Section 6403 of the Patient Protection and Affordable Care Act. It is designed to eliminate duplicative data reporting and access requirements, HRSA said.

The proposed rule is part of a Department of Health and Human Services effort to reduce regulatory burdens as required under an executive order issued by President Obama in January 2011 (20 HCDR, 2/1/12).

Under the proposed rule, the HHS secretary would establish a transition period for the data transfer and closing of the Healthcare Integrity and Protection Data Bank (HIPDB).

No new reporting requirements would be added as a result of the consolidation, and all actions currently reported to both data banks would be reported only to the NPDB.

Comments on the proposed rule are due 60 days after publication.

Data Access, Security Will Remain the Same

Requirements pertaining to who may access the data bank and how the data will be protected remain the same after data are transferred to the National Practitioner Data Bank, according to the proposed rule.

The National Practitioner Data Bank was established by the Health Care Quality Improvement Act of 1986 (HCQIA).

The NPDB is authorized to collect reports of:
• adverse licensure actions against physicians and dentists (including revocations, suspensions, reprimands, censures, probations, and surrenders);
• adverse clinical privileges actions against physicians and dentists;
• adverse professional society membership actions against physicians and dentists;
• Drug Enforcement Administration (DEA) certification actions;
• Medicare or Medicaid exclusions; and
• medical malpractice payments made for the benefit of any health care practitioner.

Organizations that have access to this data system include hospitals, other health care entities that have formal peer review processes and provide health care services, state medical or dental boards, and other health care practitioner state boards.

HIPDB served as a national health care fraud and abuse data collection program for the reporting and disclosure of certain final adverse actions taken against health care practitioners, providers, or suppliers.

HRSA emphasized that the consolidated data bank will still follow privacy and security guidelines from the National Institute for Standards and Technology. Specifically, according to the proposed rule, the consolidated data bank would have extensive operational, management, and technical controls to ensure the security of the system and protect the data in the system.

BNA Snapshot:

Proposed Rule Would Merge Information

Key Development: Healthcare Integrity and Protection Data Bank information would go to National Practitioner Data Bank.

Potential Benefit: Consolidation is designed to eliminate duplicative data reporting and access requirements.

Monday, February 13, 2012

AAPA: NCCPA Awards First Certificates of Added Qualifications

In December, 232 certified PAs became the first to earn Certificates of Added Qualifications (CAQs) by meeting licensure, education and experience requirements and passing a specialty exam. CAQs were awarded in cardiovascular and thoracic surgery (16), emergency medicine (142), nephrology (4), orthopaedic surgery (32), and psychiatry (40), specialties selected after discussions with PA and physician specialty organizations and consideration of needs and trends in health care. Across these five specialty areas, 94 percent of examinees earned the CAQ.

Friday, February 10, 2012

Arkansas Supreme Court: Negligent credentialing is not a medical injury

On Thursday, February 9, the Arkansas Supreme Court deemed that, under state law, negligent credentialing is not a cause of action and does not qualify as a “medical injury,” as defined by the Arkansas Medical Malpractice Act. As a result, the Court refused to establish negligent credentialing as a tort or cause of action at common law.

The full opinion can be found here:


Tuesday, February 7, 2012

BNA: Ninth Circuit Affirms Judgment for Hospital, Holds HCQIA Immunity Barred Doctor's Suit

Fox v. Good Samaritan Hospital LP, 9th Cir., No. 10-15989, unpublished 2/3/12

Key Holding: Summary judgment for hospital on basis that HCQIA barred doctor's lawsuit based on suspension of privileges is affirmed.

Key Takeaway: HCQIA immunity applies to hospital professional review action based on doctor's refusal to follow hospital rules where his competence was not at issue.

A California doctor was not able to overcome the presumption that the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §§11101-11152, granted a hospital immunity for suspending the physician's privileges, a federal appeals court Feb. 3 said in affirming summary judgment for the hospital (Fox v. Good Samaritan Hospital LP, 9th Cir., No. 10-15989, unpublished 2/3/12).

The U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion, said that, although it found it distressing that defendant Good Samaritan Hospital LP (GSH) waited six years to raise the HCQIA defense, the hospital nevertheless was entitled to immunity in an action brought by Dr. Richard Fox.

This action arose in 1999, when GSH suspended Fox's privileges due to his refusal to comply with a newly enacted hospital rule that required that a physician's designated backups hold the same set of privileges as the physician.

Fox sued GSH and others in federal court in 2004, alleging various causes of action based on his suspension. He also alleged that the hospital's real reasons for suspending his privileges were to retaliate for his previous criticism of patient care at the hospital and to impose a monopoly on the provision of pediatric intensive care services.

District Court Action
The U.S. District Court for the Northern District of California granted the defendants' motion for summary judgment after finding that, although the peer review proceedings that led to the suspension of Fox's privileges did not concern Fox's competency, the HCQIA reached actions taken based on a physician's refusal to follow hospital administrative rules.

The court found that the suspension of Fox's privileges for failure to comply with the alternate coverage rules was a professional review activity within the meaning of the HCQIA and that it was based on the “professional conduct of an individual physician.” The court further found that Fox failed to rebut the presumption that the hospital met the standards for application of the immunity provision.

It later denied Fox's motion for reconsideration and held that the defendants were not entitled to recover costs and attorneys' fees (126 HCDR, 7/2/10).

HCQIA Applied
A hospital is entitled to HCQIA immunity for any “professional review action” taken based on a physician's competence or professional conduct, as long as the hospital afforded the physician adequate procedural protections, the Ninth Circuit said in its decision.

The court found, contrary to Fox's argument, that GSH's action fell within this definition because Fox's professional conduct motivated GSH's decision to suspend his privileges. “A doctor's failure to comply with a rule of the hospital where he practices unquestionably implicates his professional conduct, whether or not he agrees with the rule,” the court wrote.

Additionally, the court said, GSH's failure to offer Fox a formal administrative hearing did not preclude the hospital from claiming HCQIA immunity because “a hearing was not necessary under the unique circumstances of Fox's case.”

Fox did not dispute that he failed to designate backups with identical privileges, as the hospital required. Therefore, a hearing geared toward resolving factual issues would have done nothing to help Fox's case or the hospital's decisionmaking process, the court said.

Fair Procedure
GSH's offer to allow Fox to challenge the rule in informal hearings before the hospital's executive committee and board of trustees provided a fair procedure under the circumstances, the court said.

It also held that GSH's failure to report Fox's suspension to the National Practitioner Data Bank, as required by 42 U.S.C. § 11133(a)(1), did not foreclose HCQIA immunity in this instance. A failure to report forecloses immunity only if the secretary of health and human services publishes the hospital's name in the Federal Register, which did not happen in this case, the court said.

Finally, the court said the lower court did not abuse its discretion in denying GSH's motion for costs and attorneys' fees because the HCQIA defense was available to the hospital at the outset of the litigation and was not asserted “until after nearly six years of costly discovery and multiple rounds of motion practice.” None of these expenses of time or money would have been necessary had the defendants timely raised the HCQIA defense, the court said.

James Alfred Hennefer, of Hennefer Finley & Wood LLP, San Francisco, represented Fox. Thad A. Davis, of Ropes & Gray, San Francisco; David C. Hall, of Hall Prangle & Schoonveld, Chicago; Michael A. Hurwitz, San Jose, Calif.; David Perrault, of Hardy Erich Brown & Wilson, Sacramento; and George A. Shannon Jr., of Shannon Martin, Houston, represented the defendants.

The court's opinion is available here: http://op.bna.com/hl.nsf/r?Open=mapi-8r8lw4.

Thursday, February 2, 2012

BNA: CMS's Hospital Compare Website Adds Central Line Bloodstream Infection Data

The Centers for Medicare & Medicaid Services Jan. 26 posted data on central line-associated bloodstream infections (CLABSI) occurring in hospital intensive care units to its Hospital Compare website.

The data were based on three months of hospital reporting (January 2011 through March 2011), and they will be updated quarterly. The website allows users to compare an individual hospital's performance in a variety of categories against a national benchmark rate.

Roughly 248,000 bloodstream infections occur in U.S. hospitals annually. Many result from use of a central vascular catheter, also known as a central line, according to the Centers for Disease Control and Prevention.

“This is a milestone for patient safety that begins to make hospitals accountable for the two million patients who are infected each year,” Lisa McGiffert, director of Consumers Union's Safe Patient Project, said in a Feb. 1 statement. “Finally, Americans in all 50 states will be able to find out how well their hospital prevents these particular infections.”
Consumers Union, the nonprofit advocacy arm of Consumer Reports, said it has called for the release of hospital CLABSI data since 2004, and it has worked with other advocacy groups to mandate hospital infection reporting in 30 states.

The Medicare hospital Fiscal Year 2011 inpatient prospective payment system final rule required all hospitals to begin reporting CLABSI data to the CDC's National Healthcare Safety Network by Jan. 1, 2011. The data were then shared with the Hospital Compare website.

Hospitals currently report bloodstream infections occurring in a surgical setting to the CDC, and those data are expected to be posted to the Hospital Compare website in 2013.

The Hospital Compare website is at http://www.hospitalcompare.hhs.gov/. The FY 2011 Final Rule is at http://www.gpo.gov/fdsys/pkg/FR-2011-08-18/pdf/2011-19719.pdf