Sunday, February 26, 2012

West Virginia Health Care Association Launches WV Senior Care Website

This past week health care colleague and CEO of the West Virginia Health Care Association, Patrick D. Kelly, advised me that the association has launched a new website to provide a resource for families and seniors who are researching residential and health care options in West Virginia. The website is called West Virginia Senior Care: Helping Seniors Make Informed Decisions About Senior Care and can be found at:

The website is designed to help all of us find information and make better decisions regarding care for our parents and the elderly. The website includes everything from in home care services, such as home health, hospice, and other in home services, to care offered in assisted living facilities, residential care, nursing homes, hospitals, etc. The press release issued by the West Virginia Health Care Association provides additional details.

After looking around the website it looks like a great resource of health care information for West Virginia seniors.

Friday, February 24, 2012

CMS Issues proposed rule for Stage 2 Meaningful Use EHR Incentive Programs under HITECH

Yesterday the Centers for Medicare & Medicaid Services (CMS) announced the proposed rule for Stage 2 Meaningful Use under the the Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs which is a part of the Health Information Technology for Economic and Clinical Health Act (HITECH).

The incentive program is part of the national health information technology reform effort under the American Recovery and Reinvestment Act of 2009 which provides incentive payments to eligible health care professionals, eligible hospitals and Critical Access Hospitals who adopt certified EHR technology and use it to demonstrate “meaningful use” of that technology to CMS.

The proposed rule also revised certain Stage 1 criteria, as well as criteria that apply regardless of the Stage, as finalized in the final rule titled Medicare and Medicaid Programs; Electronic Health Record Incentive Program published on July 28, 2010 in the Federal Register. The provisions included in the Medicaid section of the proposed rule (which relate to calculation of patient volume and hospital eligibility) would take effect shortly after finalization of this rule, not subject to the proposed 1 year delay for Stage 2 of meaningful use of certified EHR technology. Changes to Stage 1 of meaningful use would take effect for 2013, but most would be optional until 2014.

CMS provides the following Fact Sheet summary of the Stage 2 requirements. The complete proposed rule can be found here and should be published in the Federal Register in the next week. If you are interested in submitting comments to the proposed rule the deadline for submission will be 60 days from the date of publication of the proposed rule in the Federal Register.

SCOTUS Overturns Supreme Court of Appeals of West Virginia Decision on Nursing Home Arbitration Agreements

On February 21, 2012, the U.S. Supreme Court vacated a ruling by the Supreme Court of Appeals of West Virginia in the matter of Marmet Health Care Center, Inc. v. Brown et al., 565 U.S.(2012). The Supreme Court of Appeals of West Virginia previously held that all pre-dispute arbitration agreements that applied to personal injury and wrongful death claims against nursing homes were unenforceable. 

In a strongly worded opinion, the U.S. Supreme Court held that the West Virginia court misread and disregarded national precedent and controlling federal law regarding the Federal Arbitration Act.

The litigation involved three negligence suits against nursing homes in West Virginia for the care they provided to three separate residents: Clayton Brown, Jeffrey Taylor, and Sharon Marchio. In each of the cases, a family member entered into a binding arbitration agreement on behalf of the resident with the respective nursing home. In all three cases, after the resident died, lawsuits were filed in state circuit courts alleging personal injury and wrongful death against the nursing homes. The Brown and Taylor cases were dismissed by the circuit courts based on the arbitration agreements. The Marchio case was consolidated with the other two cases when it was brought before the West Virginia Supreme Court on a certified question.

In a decision concerning all three cases, the West Virginia Supreme Court held that "as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence." Brown v. Genesis Healthcare Corp., No. 35494 (W.Va., June 29, 2011).

The West Virginia Supreme Court found unpersuasive the U.S. Supreme Court's prior interpretation of the Federal Arbitration Act, calling it "tendentious" and "created from whole cloth." Brown v. Genesis Healthcare Corp., No. 35494 (W.Va., June 29, 2011).

In vacating the West Virginia court's ruling, the U.S. Supreme Court held that the West Virginia court's interpretation of the Federal Arbitration Act was incorrect and inconsistent with its clear instruction and prior precedents. On remand, the West Virginia court was instructed to consider whether, absent the general public policy issue, the arbitration clauses in the Brown and Taylor cases are unenforceable under state common law principles that are not specific to arbitration and preempted by the Federal Arbitration Act. This leaves the possibility that certain arbitration clauses may be invalidated on such general contract grounds, such as fraud, duress, and lack of capacity, to name a few.

For additional information you can review the documents filed in the matter the U.S. Supreme Court docket for the Marchio portion of the case. Also, the briefs filed in the Brown, Taylor, and Marchio matters filed before the Supreme Court of Appeals of West Virginia can be found here.  

Thanks to Ryan A. Brown, a member of the Flaherty Sensabaugh Bonasso PLLC Health Care Practice Group who represents the defendant nursing home, Clarksburg Nursing & Rehabilitation Center, Inc., in the Marchio matter for the above summary of the decision. Also involved in the case was my partner, Mark Robinson