Franklin Solutions

The news arrived in June that Virginia did not receive federal dollars to establish its pilot program for disclosure, communications and compensation discussions following an adverse medical event. (This Virginia program is discussed in the Health and ADR entry herein of June 1 which you can read further below).  AHRQ, the federal agency to which Virginia had applied for these funds, made a slew of grants to other program applicants. Congratulations to all the recipients.  (You can see who won the grants at at www.ahrq.gov/qual/liability/demogrants.htm).
Those who have interest in this field will want to learn from outcomes of the programs that have been funded. But the Virginia model and the collaborative framework on which it is based are too good a start  to wait indefinitely or be lost altogether. It is thought that consideration may now be given to whether there are other options to get something started in Virginia and sooner.

ADR and Healthcare Reform – Overwhelmed?

It is understandable that stakeholders are somewhat insecure about where the gains and where the losses will ultimately fall from healthcare reform. There will be improvements and there will be losses. I do not address the matter as a political issue but rather its realities. Core capability to manage the changes, the uncertainties and their effects, on the morale, tenacity and focus of those whose job it is to deliver health services is vitally important.
For example, the rapidity of changes announced in just the last several weeks (June into early July) concerning healthcare has been breathtaking for anyone paying attention. Medicare MD compensation has been put on hold, slashed, restored, and then a new slash proposed - all within the last 6 weeks alone! Small businesses providing health benefits for employees believe that tax credits will be available to assist their providing such benefits. Announcement by the US Taxpayers’ Advocate this week suggest that there may be hidden and other costs that will actually impose additional financial burden on small businesses trying to offer health benefits to their employees. Certain insurance mandates will kick in this September 2010 that should help persons with pre existing conditions changing health plans - if you are 19 or under. If you are older, take a look at the federal website to see if you can purchase a plan through the government options. (www.healthcare.gov.)
HHS has just released new rules under HIPAA privacy and security that require additional learning and compliance actions by healthcare providers . At the same time providers are expected  to learn to manage electronic health records without making errors. Such learning is estimated to take upwards of several hours/day  which eats into time  available for patient care. Meanwhile more patients (consumers) will need access to care.   Understanding and coping with the changes and the speed of them  will be vital to doing as good a job as possible of implementing the changes , or quickly deciding which changes should wisely be “let go” to avert unintended costs.   The importance of conflict management and ADR processes in healthcare settings, as mentioned in other entries, only seems more evident. Let’s hope that persons in positions to encourage use of such processes to facilitate wise and effective reform will do so and not fall prey to “penny wise pound foolish.”
  

... is poised to expand due to financial and regulatory stressors and demands that impact the healthcare system. As the changes wrought by healthcare reform get underway, physicians and other health care providers, as well as consumers, will need help to navigate and handle the changes as positively, carefully and wisely as possible. Goals will include attaining reform's claimed benefits, while minimizing negatives of mixed or unintended consequences. Below are just a few morsels of pertinent information:

1. The American Health Lawyers Association (AHLA) runs a dispute resolution service for disputes arising throughout the health care industry. In December 2008, the AHLA ADR service published a Toolkit on Conflict Management. Available for free download, it will assist anyone in health facilities and their lawyers to create programs to manage disputes in timely, appropriate and effective fashion. Check it out at www.healthlawyers.org/adr.
2. Please see the Spring 2010 issue of the American Bar Association's Dispute Resolution Magazine. The issue focuses on ADR and healthcare. Rich with information and ideas, it also includes an article by myself and Jane Conard. 
3. In June 2009, following the 2008 Toolkit's publication online, Jane Conard and Jeanne Franklin (who were 2 of its 4 authors) presented a program for health system and facility in-house counsel in Washington DC,  to present additional material and explanation. Contact AHLA (www.healthlawyers.org/adr) to determine availability of those program materials. (Program title: “Can’t  We All Just Get Along? Implementing Systemic Conflict Management.”)
4. The Association for Conflict Resolution will hold its Annual Meeting in Chicago between September 1-4, 2010. I advise checking program details to see if your attending will enhance skills and knowledge relevant to healthcare ADR. www.acrnet.org.
5. In addition to a Leadership Standard, effective January 2009, that requires Joint Commission accredited healthcare facilties to implement their own conflict management systems, the Joint Commission recently enacted a standard that will be effective in March 2011, requiring healthcare facility medical staffs to use conflict management as part of medical staff process when called for. In short, dispute resolution in healthcare facilities is not a subject that is going to go away.

On a separate but related healthcare subject, Jonathan Joseph and Michael Guanzon, two Virginia health lawyers, have been presenting programs on health facility responses to the Joint Commission’s Sentinel Alert and Leadership Standard on disruptive behaviors that may imperil quality and safety of care in healthcare facilities. Their program, "Disruptive Physicians: Tension, Dissension, Prevention and Intervention-Resolution Without Revolution," was presented on January 23, 2010 at the Virginia Bar Association (VBA) Annual Meeting in Williamsburg, Virginia. Jeanne Franklin participated to discuss inserting conflict management, a "Step Back,"into the processes designed to address disruptive behavior situations.

My subsequent article,"Sensible Intervention to Manage Disruptive Behavior in Health Care Facilities and Avoid Fatal Distraction," will appear in the VBA's Health Law Section E Newsletter (expected in June 2010.)

A third and vitally important health care delivery subject implicating ADR is that of adverse medical outcomes. Virginia has been active on at least two related fronts, as folllows. (There will be greater activity on the national level as a result of federal health care reform initiatives.) The US Department of Health and Human Services announced on September 16, 2009 the availability of $25 million of grant monies for states to test alternative programs for health care provider response following adverse medical outcomes, to create healthcare quality learning enviornments and provide information and compensation to injured patients. The Virginia Department of Health (VDH) responded proactively to that grant opportunity with collaborative assistance from key stakeholders.* Word is still awaited (as of June 1, 2010)  whether Virginia will receive such a federal grant.

The Department's ability to respond to the federal grant opportunity was based in large part on a study conducted by The Virginia Joint Commission on Health Care (JCHC), a state office studying health policy issues in Virginia, with the health law section of the VBA. I co-chaired the two phases of the study. Study participants included representatives of different stakeholder groups within Virginia and its healthcare community, some of whom later advised VDH* in its application process mentioned above.

HJR 101 Study is the short name of this Virginia study of disclosure and ADR programs in instances of adverse medical outcomes.  Study materials include a detailed  report prepared following the first phase of the HJR 101 Study, and that report is found in the reports section of the JCHC website, under “2009,” then under the title, "HD 109 Report." Go to www.jchc.state.va.us.

The second phase of the HJR 101 Study concluded in the fall of 2009 when the Virginia JCHC voted to introduce and recommend to the 2010 Virginia General Assembly the passage of legislation to establish a pilot disclosure/ADR program within the Virginia Department of Health. The legislation was a product of the second study phase and was introduced as HB 306. The Bill was heard in the House Courts of Justice Committee, Civil Subcommittee, on February 1, 2010, and has been carried over with directions from the Subcommittee to develop additional information for its consideration. This timely and important subject will continue to be addressed carefully and thoughtfully in Virginia. Feel free to contact me if you have questions.

Virginia is a jurisdiction where its practricing attorneys have an affirmative obligation to be sufficiently aware of the nuances of different ADR processes to provide their clients with effective access to use of an ADR process when it could be helpful to meeting a client's goals. In short, lawyers are recognized as having a gatekeeping function for their clients. Appreciating that role and how to discharge it well is a continuing educational project in Virginia. It is possible that some of the work being done in Virginia could benefit lawyers and clients in other states as well. Understanding when early interventions are more conducive to achieving client goals, and understanding when positional bargaining may or may not be appropriate to meeting client needs are important topics for attorney consideration.

The Virginia Joint Committee (of the Virginia State Bar and the Virginia Bar Association) on Alternative Dispute Resolution launched an initiative in 2009 to make sure that Virginia lawyers are aware of the relatively recent ethical rules about counseling clients and developing strategies to meet client needs and objectives, including appropriate and best use of ADR processes. This was the subject of two CLEs presented by the Joint Committee  in January and June 2009, "Well-Tailored ADR: Getting Your Client The Right Fit is a Matter of Ethics." You can access selected handout materials from that CLE program as well as a copy of the article that summarizes the program. The Joint Committee has posted the materials as a public service to Virginia lawyers. http://www.vba.org/comm/adrjtcom.htm.

Continuing this educational outreach initiative, "Mastering The Art of Advocacy in ADR: Tips and Techniques for the Skilled Practitioner" is a second offering of the Joint Committee. (This January 2010 program will be repeated on June 18,2010 at the Virginia State Bar Annual Meeting in Virginia Beach.)

A version of the Well-Tailored ADR program has been presented by Jeanne Franklin and Lawrence "Larry" Hoover in Old Town Alexandria on April 28, 2010, jointly sponsored by the Alexandria Bar Association; plans are underway for a similar presentation in Harrisonburg, Virginia.

Please feel free to contact Jeanne Franklin if you have questions about these programs.