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Health Law Alert
2011: Issue 6 – Focus on Long Term Care
Seeking Shelter During Uncertain Times: Assessing the Federal Quality Assurance Privilege
By: Donna J. Senft, Virginia B. Evans, and John S. Linehan
As a critical element in a nursing facility's internal controls, a quality assurance and assessment (QA) committee must comply with policies designed to effectively monitor and enhance quality of care standards. In order to promote meaningful quality reviews, such policies must reflect careful consideration of the scope and power of the quality assurance privilege, which protects certain QA-related materials from disclosure. This article summarizes the case law addressing the scope of the QA privilege and provides guidance for nursing facilities that must operate QA committees in an increasingly hostile regulatory environment.
Click to continue...Administrative, Actuarial and Regulatory Hurdles Are Too Much for the CLASS Act
The Community Living Assistance Services and Support Act, the CLASS Act, was signed into law as part of the Patient Protection and Affordable Care Act (PPACA) in March 2010. The Department of Health and Human Services (HHS) is required to publish final regulations to implement the CLASS Act by October 1, 2012. Once implemented, individuals would be permitted to voluntarily contribute money each month to a federal fund to be used to pay eligible individuals a future monthly stipend to offset the costs of long-term care. However, the CLASS Act administrator announced on October 14 that it would not seek to implement the CLASS Act because of the significant hurdles that must be overcome.
Click to continue...Maryland's Medical Orders for Life-Sustaining Treatment Form Delayed
As a result of legislation enacted by the 2011 Maryland General Assembly, Maryland health care providers will soon be required to accept a Medical Orders for Life-Sustaining Treatment (MOLST) Form for patients. The MOLST form is a portable medical order that that contains a physician’s or nurse practitioner’s written medical orders relating to a patient’s medical condition, including a patient’s instructions relating to cardiopulmonary resuscitation (CPR) and the use of other life-sustaining treatments. Similar to the current Maryland Institute for Emergency Medical Services System (MIEMSS) Do Not Resuscitate (DNR) form, Maryland emergency medical system (EMS) personnel and first responders will be required to comply with a patient’s instructions regarding CPR contained in the MOLST form. While the Maryland Department of Health and Mental Hygiene (DHMH) had initially planned to require implementation of the MOLST form effective October 1, 2011, DHMH recently announced that it would delay the implementation until after public comment to proposed regulations [PDF]. A sample of the MOLST form [PDF] was also published as part of the regulations. Comments regarding the proposed regulations are due by October 24, 2011.
Click to continue...Consultant Pharmacist - Is Independence Necessary?
By: Donna J. Senft
Included within an October 11, 2011 publication of proposed regulations [PDF], CMS announced it is considering changes to the Conditions of Participation for LTC facilities related to services provided by consultant pharmacists under 42 C.F.R. § 483.60. In discussing its rationale for considering these changes, CMS highlighted its concern with aspects of current LTC facility and consulting pharmacist relationships and potential quality of care concerns.
Click to continue...Five Lessons Learned (the Hard Way?) for In House Counsel
By: Sarah E. Swank and Willam A. Roach, Jr.*
You may have wondered what became of the indicted in house counsel from GlaxoSmithKline (GSK) in United States v. Stevens. No. 10-CR-0694 (D. Md. Mar. 23, 2011. The case was enough to make most in house counsel sit up and take notice. The good news—Laura Stevens, Vice President and Associate General Counsel of GSK, was cleared of all charges. The bad news—this may not be the last case, if the government has its way. With attorney-client privilege on the minds of in house counsel, Stevens also demonstrates the importance of the advice of counsel defense. Below is a summary of the facts that may seem all too familiar to those in house counsel involved in government investigations, as well as five lessons we can all learn from Stevens.
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