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Patient Protection and Affordable Care Act
Grants: Provisions Relating to Title VI, Transparency and Program Integrity

Fri, 2012-04-27 17:01 — healthinfolaw_admin


 

Sec. 10607 State Demonstration Programs to Evaluate Alternatives to Current Medical Tort Litigation

 

  • Grants. The Secretary of Health and Human Services has authority to award states with grants, for a maximum of five years, to develop and test “alternatives to current tort litigation for resolving disputes over injuries allegedly caused” by health care professionals.183 States interested in receiving a grant must develop an alternative to litigation and submit an application to the Secretary.
  • Alternative Requirements

  • The alternative to litigation must: (1) facilitate dispute resolution;  and (2) “promote a reduction of health care errors by encouraging the collection and analysis of patient safety data related to disputes…by organizations that engage in efforts to improve patient safety and the quality of health care.” 184
  • States must show that their alternative: (1) increases the “availability of prompt and fair resolution of disputes” thereby resulting in a more reliable medical liability system; (2) encourages dispute resolution efficiency; (3) “encourages the disclosure of health care errors;” (3) improves patient safety through the detection and analysis of medical errors; (4) “improves access to liability insurance;” (5) educates patients regarding the difference between tort litigation and the alternative; (6) permits patients to withdraw or opt out of participating in the alternative and permits them to pursue litigation or other options; (7) not conflict with state law in a way that would prohibit adoption of the alternative; and (8) not place any limits on patient’s legal rights or access to the legal system. 185
  • States must detail the sources of compensation for their alternative. States may permissibly fund the alternative with private funds, public funds, or a combination of public and private funds. If possible, the funding method should incentivize patient safety activities.186
  • States must identify the scope of jurisdiction for their demonstration project. This may be statewide, within certain a geographic area, or within a group of health care providers or organizations. States must notify patients that receive care within the relevant scope of their ability to opt out or withdraw from participation.187
  • Award Process.
    • The Secretary will review the applications along with a review panel comprised by 9-13 individuals appointed by the Comptroller general. These individuals must be “highly qualified and knowledgeable” and chosen to fairly represent patient advocates, health care providers, health care organizations, plaintiff’s and defendant’s attorneys, medical malpractice insurers, state officials, and patient safety experts.188 The Comptroller General, or their designee, will serve as chair of the panel and ensure that the panel has access to “such information, personnel, and administrative services and assistance as the review panel may reasonably require.”189 The review panel may also request information from any federal agency or office that is necessary to perform their duties.
    • The Secretary must give preference to States that: (1) consulted with relevant stakeholders (e.g. providers, patient safety advocates) when created their proposal; (2) have proposed a method that is “likely to enhance patient safety by detecting, analyzing, and helping to reduce medical errors and adverse events; and (3) have proposed a method that is “likely to improve access to liability insurance.”190
  • Reports. States grantees must provide the Secretary with annual reports that evaluate the alternative’s effectiveness. At minimum, these reports must evaluate the impact on patient safety and the price and availability of medical liability insurance. The Secretary must submit an annual report to Congress containing a compilation of state reports and an analysis that discusses the differences in state activities. 191
  • Technical Assistance. The Secretary must provide states with technical assistance. Such assistance include “guidance on non-economic damages” and “the development, in consultation with States, of common definitions, formats, and data collection infrastructure for States receiving grants under this section to use in reporting to facilitate aggregation and analysis of data both within and between States. These common definitions may also be used by states that do not receive funding. 192
  • Evaluation. The Secretary, after consulting with the review panel, will contract with a research organization to provide an annual evaluation of the granting program as well as an annual report to submit to Congress. This evaluation must occur within 18 months of awarding the first grant. The evaluation must: (1) analyze the effects of the program using specific measures; (3) analyze the effectiveness of each state at meeting the alternative’s criteria; (3) compare the effectiveness of state alternatives at meeting the criteria; (4) compare performance on specific measures between states that receive and do not receive grants; (5) compare performance on specific measures between states receiving grants, states that did not have damage caps prior to 2010, and states that had certificate of merit requirements prior to 2010.193
  • Evaluation Measures. The ACA defines the specific “measures” as including: (1) the “nature and number of disputes over injuries allegedly caused by the health care providers or health care organizations;” (2) “the nature and number of claims in which tort litigation was pursued despite the existence of an alternative;” (3) the outcome of all disputes and claims including information on the expended time and money by each party; (4) “the medical liability environment;” (5) “health care quality;” (6) “patients and health care provider satisfaction with the alternative…and with the medical liability environment;” and (7) the “impact on utilization of medical services, appropriately adjusted for risk.”194

    • MedPac and MACPAC. The Medicare Payment Advisory Commission (“MedPAC”) and Medicaid and CHIP Payment and Access Commission (“MACPAC”) must independently review the alternatives tested through grants to determine their effect, respectively, on the Medicare program and Medicare beneficiaries and the Medicaid and CHIP programs and Medicaid and CHIP beneficiaries. MedPAC and MACPAC must subsequently provide Congress with reports that contain an analysis of the impact and effectiveness of the alternatives as well as other findings and recommendations. MedPAC and MACPAC must submit this report by December 31, 2016.195

     

    Footnotes

    • 183. Affordable Care Act §10607; 42 U.S.C. 280g-15(a)-(c).
    • 184. Affordable Care Act §10607; 42 U.S.C. 280g-15(c)(1).
    • 185. Affordable Care Act §10607; 42 U.S.C. 280g-15(c)(2).
    • 186. Affordable Care Act §10607; 42 U.S.C. 280g-15(c)(3).
    • 187. Affordable Care Act §10607; 42 U.S.C. 280g-15(c)(4).
    • 188. Affordable Care Act §10607; 42 U.S.C. 280g-15(d)(2)(B)(ii).
    • 189. Affordable Care Act §10607; 42 U.S.C. 280g-15(d)(2)(D).
    • 190. Affordable Care Act §10607; 42 U.S.C. 280g-15(c)(5).
    • 191. Affordable Care Act §10607; 42 U.S.C. 280g-15(e).
    • 192. Affordable Care Act §10607; 42 U.S.C. 280g-15(f).
    • 193. Affordable Care Act §10607; 42 U.S.C. 280g-15(g).
    • 194. Affordable Care Act §10607; 42 U.S.C. 280g-15(g)(3).
    • 195. Affordable Care Act §10607; 42 U.S.C. 280g-15(h).

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