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• THA Responds to Waxman Request
• TMB Offers Licensing Seminars to Assist Applicants
• Web Site Compares Hospitals
• Reminder: Urge Extension of Medicaid Moratorium
• THA Recommends Changes to Proposed HPSA/MUP Regulations
• Applications Being Accepted for Medicare Bundling Demonstration 
• Important Dates
• Educational Opportunities
• Legal Update
• Texas Register Highlights
• Federal Register Highlights

THA Responds to Waxman Request

Congressman Henry Waxman (D-Calif.), chairman of the House Committee on Oversight and Government Reform, recently asked each state hospital association to respond to several questions as part of an investigation into health care-associated infections. Specifically, the committee requested information about central line-associated bloodstream infections in intensive care units. 
    The Texas Hospital Association submitted its response to the congressional committee on May 29. THA noted that although Texas law mandates the public reporting of laboratory-confirmed central line-associated primary bloodstream infection rates as defined by the Centers for Disease Control and Prevention, the Legislature did not provide funding to the Texas Department of State Health Services to administer the program so data is not being collected at this time.
    THA used the letter as an opportunity to offer recommendations about what the federal government can do to improve quality and patient safety. Specifically, THA urged that federal agencies gathering data coordinate their efforts.
Hospital associations were asked to provide examples of what hospitals are doing to improve quality and patient safety. THA submitted a list of activities in which most Texas hospitals participate. 
    The investigation was launched in response to testimony that detailed how a Michigan Hospital Association ICU Central Line Bundle initiative led to dramatic decreases in infections. (Starr West/Matt Wall, J.D.)

At meetings held statewide throughout the summer, the Texas Medical Board will offer in-depth seminars for entities that recruit or credential physicians to assist in streamlining the application process and minimizing application errors.
    Each meeting will consist of two parts over two days. A town hall-style meeting will be conducted first, at 7 p.m. on the evening of the first day to gather input from medical professionals and the public about regulatory issues. A three-hour licensing seminar will be offered on the morning of the second day. All interested parties are invited to participate in either or both sessions. 

Session locations and dates are:

June 9 and 10 - Brownsville
Both sessions will be conducted at the Brownsville Event Center, 1 Event Center Blvd. The town hall meeting will be at 7 p.m. on June 9 and the licensing seminar will begin at 8:30 a.m. on June 10.

June 17 and 18 – Midland
Both sessions will be conducted at the Center for Energy and Economic Diversification, 1400 N. FM 1788. The town hall meeting will begin at 7 p.m. on June 17 and the licensing seminar will begin at 8:30 a.m. on June 18.

June 23 and 24 – Austin
The town hall meeting will be at 7 p.m. on June 23 in the Thompson Auditorium at the Texas Medical Association offices, 401 W. 15th St. The licensing seminar will begin at 11 a.m. on June 24 in Room 100 of the William P. Hobby Jr. State Office Building, 333 Guadalupe St. 

July 1 and 2 - Fort Worth
Both sessions will be conducted at the University of North Texas Health Science Center, 3500 Camp Bowie Blvd. The sessions will be conducted in Luibel Hall on the second floor of the EAD building, which is at the corner of Montgomery and Camp Bowie. The town hall meeting will begin at 7 p.m. July 1. The licensing seminar will begin at 8:30 a.m. on July 2. 

July 8 and 9 - Bryan/College Station
Both sessions will be conducted in Lecture Hall 1 on the first floor of the Joe Reynolds Medical Building at Texas A&M University, at the southwest corner of University Drive and Olsen Blvd. The town hall meeting will be at 7 p.m. on July 8, and the licensing seminar will begin at 8:30 a.m. on July 9.

    If you have questions regarding the meeting in your area, contact TMB's Amanda Bloodgood at 512/305-7121 or amanda.bloodgood@tmb.state.tx.us.  
    TMB already has instituted two changes this spring that benefit licensees. The first is a "fast-track" enforcement system that allows physicians who face relatively minor administrative violations to dispose of those charges without attending a hearing. The second, the License Inquiry System of Texas, is an online communication system that allows applicants to check the status of their applications 24 hours a day and also provides detailed explanations of any items required to process an individual's physician licensure application. LIST also provides a message center where applicants and TMB staff can exchange messages.

(Matt Wall, J.D./Jennifer Banda, J.D.)

Important Dates 

May 31
Deadline for nominations for Cherokee Uniforms
“Inspired Comfort” Award

June 1
Comments due on draft instructions for redesigned IRS Form 990

June 13
Deadline to comment on proposed IPPS rules

June 24
AHA conference call on "never events" policies

Audioconference: Establishing Fair Market Value in Hospital-Physician Arrangements
(Part 2, Keeping Current on Compliance)
June 12
View details.

Webinar Series: Managing Joint Commission Standards for Environment of Care
June 13
July 11
Aug. 22
Sept. 19
Oct. 17
Nov. 14

THA Psychiatric Services Conference
July 14-15, San Antonio
View details.

THT Conference
July 24-26, San Antonio
View details.

Audioconference: Observation Services: Coding, Billing and Compliance
July 31
View details.

Rural Health Trifecta
Aug. 5-7, Austin 
View details.

THA offers
audioconferences and webinars on a wide range of topics. Viewa complete listing of webinars. For information on all of THA's upcoming educational events, visit THA's online Education Calendar.

Legal Update

By Fulbright & Jaworski, of counsel to THA

President Bush Signs Genetic Information Nondiscrimination Act of 2008. On May 21, President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008 (H.R. 493). The legislation prohibits discrimination on the basis of genetic information with respect to health insurance and employment. Specifically, the legislation makes it illegal for employers and insurers to deny coverage to individuals based on their genetic make-up.

Court Compels Dismissal of Suit against Hospital. On May 16, the Supreme Court of Texas confirmed that hospitals may obtain mandamus relief from a trial court's refusal to dismiss a health care liability claim that is unsupported by an adequate expert report. 
    McAllen Medical Center was sued by more than 400 claimants under various theories, all relating to the alleged negligent credentialing of Francisco Bracamontes, M.D. In support of these claims, plaintiffs submitted expert reports signed by Jetta Brown, M.D., as well as her curriculum vitae. In the court's words, “the curriculum vitae the plaintiffs submitted for Dr. Brown was a model of brevity.” Nothing in either her expert report or curriculum vitae demonstrated any specialized knowledge or expertise on hospital credentialing standards. The absence of such knowledge and expertise rendered the reports inadequate and Brown unqualified to express any opinion on whether or not the hospital engaged in negligent credentialing. While the hospital objected to Brown's reports and moved to dismiss the cases early in the litigation, for four years the court declined to rule on the hospital's motions. 
    The hospital sought relief to compel the trial court to dismiss the case. On these facts, the court concluded that the trial court's refusal to dismiss the cases was a clear abuse of discretion. Specifically, the court held that “mandamus relief is available when the purposes of the health care statute would otherwise be defeated.”  Notably, the court interpreted the expert report requirement as a substantive right to which hospitals are entitled. When the very act of proceeding to trial defeats a substantive right, reasoned the court, an ordinary appeal is an inadequate remedy and mandamus relief is available. The opinion, In re McAllen Medical Center, Inc., D/B/A McAllen Medical Center and Universal Health Services, Inc., No. 05-0892 (May 16, 2008), is available here.

Fifth Circuit Sides with FTC in Physician Price-Fixing Case. On May 14, the U.S. Court of Appeals for the Fifth Circuit upheld a decision by the Federal Trade Commission, which concluded that North Texas Specialty Physicians, an association of independent physicians in Fort Worth, had engaged in horizontal price-fixing in violation of Section 5 of the Federal Trade Commission Act.
    The FTC originally filed its administrative complaint against NTSP in September 2003, alleging that the physician group had engaged in conduct designed to enhance the collective bargaining power of its members through the use of member polls on prospective fees and communication of poll results to members in a manner that affected payment levels in non-risk sharing contracts. The administrative law judge ruled in favor of the FTC, and the FTC subsequently upheld the decision on appeal. In continuing to uphold the FTC's decision, the Fifth Circuit stated that "the record evidence supports the FTC's factual finding that NTSP regularly informed payors that its physicians had established minimum fees for NTSP-payor agreements, identified the fee minimums, and ... that NTSP would not enter into or forward to any of its physicians payor offers that were below the minimums." In rejecting NTSP's arguments that it was acting as its own entity and that it was the "sole actor" for antitrust purposes, the court went on to say that "as the FTC pointed out, antitrust law would be easily evaded if illegal joint activity could be transformed into legal unilateral activity through the formation of a single trust or other corporate entity."
    The case has particular significance as not only the first physician price-fixing case to be litigated up to the level of a federal appeals court, but also in providing authority in support of the FTC's "quick look" analytical approach in determining whether an arrangement violates federal law.

CMS Releases Medicare Part D Data Final Rule. On May 22, the Centers for Medicare & Medicaid Services released a final rule that permits Part D claims data to be used for health care coordination, quality improvement and program monitoring. The final rule also allows CMS to release Part D claims data to other federal government agencies, state agencies, external researchers and Medicare beneficiaries. To address privacy concerns, in the final rule CMS included several safeguards to protect beneficiary privacy, such as: (1) CMS will not release beneficiary, prescriber or pharmacy identifiers to external researchers or other government agencies unless it is necessary for purposes of a research study; (2) the rule does not extend to Part D plan-specific bid data, rebates, risk-sharing, reinsurance or payment information collected outside of a Part D claim; and (3) if data are released to external researchers, Part D plan identifiers will be encrypted and cost data elements will be aggregated. In addition, the Part D claims data will be used to improve CMS' knowledge of the effect of drugs in the elderly and disabled populations. Other agencies such as the federal Food and Drug Administration and the National Institutes of Health will use the Part D claims data in their research studies. Beneficiary-identifiable Part D claims data will not be released for commercial purposes. 

The Texas Health and Human Services Commission proposes rules concerning an acute-care billing coordination system. The rules implement the system and identify whether another entity has primary payer responsibility for Medicaid enrollees. (May 23)

The Texas Health and Human Services Commission proposes rules concerning the Medicaid provider database. The database will be an electronic, searchable Internet-based system that will include all participating providers in the Medicaid program. This database will help Medicaid providers and recipients determine which physicians and other providers participate in Medicaid and, of those who do, which are accepting new patients. (May 23)

The Texas Health and Human Services Commission proposes rules concerning reimbursement-setting methodology, direct care staff rate component and Medicaid reimbursement rates for state veterans' homes. The rules establish the reimbursement methodology for the nursing facility program, including Medicaid reimbursement rates for state veterans' homes. In addition, the rules will allow payment rates for the pediatric care facility class to be determined annually on the state's fiscal year, rather than biennially coincident with the state's biennium. This change will allow annual reviews of the costs of pediatric care facilities, which will allow rate adjustments to be made in a more timely fashion. (May 23)

The Texas Department of State Health Services proposes rules concerning sexually transmitted diseases, including acquired immunodeficiency syndrome and human immunodeficiency virus. The rules address testing, provide a reference to agency guidance documents as required by the statute (see http://www.cdc.gov/std/treatment) and provide a cross-reference regarding requirements applicable to hospitals in the statute. (May 23)

The Texas Department of State Health Services proposes rules concerning the regulation and certification of medical radiologic technologists. The rules clarify requirements for medical radiologic technologists, health care practitioners and professionals, and consumers.  Additionally, the rules require continuing education for non-certified technicians. (May 23)

The Texas Department of State Health Services proposes a rule concerning the disbursement of funds for uncompensated trauma care and emergency medical services, generated by photographic traffic signal enforcement. The rule describes the formula for disbursement of monies for designated trauma facilities, EMS providers and regional advisory councils that serve the local authority submitting the money under the Transportation Code. The regional trauma account is a dedicated account in the general revenue fund of the state treasury. In any fiscal year, 96 percent of the money is appropriated from the regional trauma account to fund a portion of the uncompensated trauma care provided at facilities designated as state trauma facilities by the department; 2 percent of the money is appropriated from the regional trauma account for county and regional EMS; 1 percent of the money is appropriated from the regional trauma account for distribution to the 22 trauma service area RACs; and 1 percent of the money is appropriated from the regional trauma account to fund administrative costs of the Texas Health and Human Services Commission. (May 23)

The Texas Department of State Health Services proposes rules concerning charitable drug donations and the licensing of wholesale distributors of prescription drugs, including good manufacturing practices. The rules change the definition of charitable medical clinic and add a new definition for the community pharmaceutical access program. These changes will allow certain pharmacies to participate in the drug donation process. The rules also clarify the requirements of returns of prescription drugs, and establish the requirements for those returns to be exempt from the tracking requirements of a pedigree. The rules also clarify when a pedigree is required, what the pedigree must contain and how a pedigree may be verified. (May 23) (Sharon D. Johnson)

The Centers for Medicare & Medicaid Services issues a final rule that updates, clarifies and revises various provisions of the regulations governing provider reimbursement determinations, appeals before the board, appeals before the intermediaries (for lesser disputes) and administrator review of decisions made by the board. (May 23)

The Office of the Secretary of Health and Human Services issues a proposed rule that establishes reporting requirements for private insurers that issue qualified long-term care insurance policies in states participating in the state long-term care partnership program established under the Deficit Reduction Act of 2005. The act requires that the secretary specify a set of reporting requirements and collect data from insurers on qualifying long-term care insurance policies issued under the program and the subsequent use of the benefits under these policies. Under a state long-term care partnership program, an amount equal to the benefits received under the long-term care insurance policy is disregarded in determining the assets of an individual for purposes of Medicaid eligibility and estate recovery. Comments are due by July 22. (May 23)

The Centers for Medicare & Medicaid Services issues an extension of a timeline for publication the “Medicare & Medicaid Programs: Hospice Conditions of Participation” final rule. The complexity of the rule and the scope of comments received warrant the extension of the timeline for publication. The rules will establish new conditions of participation for Medicare-participating hospices. The proposed revisions focus on the care delivered to patients and their families and the outcomes of that care. The rules require an interdisciplinary, patient-centered approach to care planning and delivery, and allow hospices flexibility in meeting quality standards. (May 27)

The Centers for Medicare & Medicaid Services issues a final rule that allows the secretary to collect claims data that are presently being collected for Part D payment purposes for other research, analysis, reporting and public health functions. The secretary must use these data because other publicly available data are not sufficient for the studies and operations that the needed to fulfill the Department of Health and Human Service's obligation to oversee the Medicare program, protect the public's health and respond to congressional mandates. These data also will be used to better identify, evaluate and measure the effects of the Medicare Modernization Act of 2003. This rule is effective June 27. (See related item in this week's “Legal Update.”) (May 28) (Sharon D. Johnson)