March 2011 Volume 7 Number 7
Health Law Section NewsHealth Law Section News  March 14, 2011

March 30, 2011
Data Breach Response: Real-World Examples of Why the Best Defense Is a Good Offense
(CLE Teleconference)

Health Law Highlights

Latest Resources & News

PPACA Resources

HHS Office of Inspector General (OIG)

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CDC Public Health Law News

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Chair's Column
By J. A. "Tony" Patterson and Gregory L. "Greg" Pemberton*

We welcome the opportunity to share with you some perspective about your American Bar Association. Both of us are past chairs of the Section, the Section Delegates to the ABA House of Delegates, and active in many other facets of the ABA. Understanding the ABA and all it is -- and does -- can be daunting, but we will try to describe it. The ABA has two broad functions. First, it is a policy-forming organization. It represents member bar associations and the ABA's Sections, Divisions, and Forums in establishing policy and lobbying on matters of importance to lawyers and the rule of law. For example, the Federal Trade Commission's Red Flag Rules would have originally required law firms to implement practices to prevent identity theft, just like banks, credit card companies, and retail businesses.

*This month's Chair's Column is written by guest columnists, J. A. "Tony" Patterson and Gregory L. "Greg" Pemberton. Tony and Greg are both Section Delegates to the ABA House of Delegates and both past Section Chairs.

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This edition of eSource is brought to you by the Medical Research, Biotechnology, and Clinical Ethics Interest Group.


Regulators, Watchdogs and Websites:
Disclosure of Financial Conflicts of Interest

By Robyn Whipple Diaz, Associate General Counsel,
St. Jude Children’s Research Hospital, Memphis, TN

In the wake of a torrent of media reports on conflicts of interest in medicine and research, health care institutions are facing increasing pressure from government agencies and non-government watchdog groups to manage, reduce and eliminate conflicts that could lead to bias in patient care and research. This article will review recent efforts to increase transparency in relationships between healthcare providers and the pharmaceutical and device industries, and discuss some of the challenges facing healthcare providers in identifying and reporting conflicts of interest (COIs) without slowing the development of potentially lifesaving drugs and devices.

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The Overburdened ED Physician:
What Do You Do When You Know the Patient is Going to Die

By Stanley J Pruszynski, Esq., Cirillo Consulting Group LLC,
New York, NY

In large urban areas it is accepted that a hospital’s Emergency Department (ED) serves as the de facto primary care giver for a wide patient demographic. The demand for services has become so overwhelming at times that in 2009 the Surgeon General of Florida submitted draft guidelines that recommended barring patients with incurable cancer, end-stage multiple sclerosis and other critical conditions from being admitted to hospitals if the state became overwhelmed by flu cases. At the same time the Centers for Disease Control and Prevention scheduled a meeting to debate the sensitive issue of who should be given access to ventilators if the swine flu pandemic worsened.

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CMS Rule Reversal: Understanding the Impact
on Advance Care Planning

By Danielle Holley, Esq., Albany Medical College, Albany, NY

On January 10, 2011, the Centers for Medicare & Medicaid Services (“CMS”) rescinded the inclusion of “voluntary advance care planning” as part of the criteria of the annual wellness visit for which physicians would be reimbursed. The final rule was issued on November 29, 2010 in response to commentary on the proposed rule posted in July 2010 that encouraged CMS to include “voluntary advance care planning” as an element of the annual wellness visit for payment under the Medicare program. The voluntary advance care planning aspect of the final CMS rule was rescinded a few days after it became effective on January 1, 2011 in part due to “wide range of views on this subject held by a broad range of stakeholders” including those who disagreed when the idea of voluntary advance care planning was first proposed under the Patient Protection and Affordable Care Act (“PPACA”). The proposal to include advance care planning under the PPACA was omitted from further consideration when it met political resistance.

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Hospital Emergency Department Crowding
and End of Life Care

By Matthew R. Herington, JD, MPH, Montana Department of Public Health and Human Services, Helena, MT and
Aaron C. Herington, MD, East Carolina University, Greenville, NC

Without question, hospital emergency departments (EDs) across the United States are crowded. Referred to in a recent report by the Institute of Medicine as a “national epidemic,” ED crowding is a major problem in the US that is adversely affecting quality of care and raising serious ethical concerns. At the same time, with the aging of the US population, an increasing percentage of the population will be living with chronic diseases in the coming years. Treating these patients in the ED can be complex and require a large amount of resources. A certain percentage of these patients will die as a result of their chronic disease, and will present to the ED for medical problems stemming from that disease that arise during the last few months of their lives. Thus, a key issue in the coming years will be how to address ED crowding while, at the same time, providing quality end of life care for an aging population with a high prevalence of chronic disease. In addressing this issue, it is critical to take a closer look at the scope of the ED crowding problem in the United States, as well as at its causes.

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Did you know membership in an interest group is FREE with your Health Law Section membership?

Did you know your membership in the ABA Health Law Section qualifies you for free membership in up to three interest groups of your choice? Interest groups, which are comprised of twelve practices areas within health law, make significant contributions to the Section's programming, publications and legislative initiatives. The interest groups also provide an excellent opportunity for you to interact with and have access to some of the most outstanding lawyers in the legal community. You can enroll on our webpage by clicking here. If you have any questions or need more information, please contact Simeon Carson at


Medical Research, Biotechnology, and Clinical Ethics Interest Group

The Medical Research, Biotechnology, and Clinical Ethics Interest Group focuses on legal and ethical issues related to medical research, biotechnology, and clinical practice. The Interest Group provides educational programs on timely topics, and members are encouraged to identify topics for programs and publications. The Interest Group will seek to serve as a resource to the Health Law Section as new legal and ethical issues in healthcare research, development, and delivery arise.

The IG is led by Chair W. Thomas Smith, University of Florida, Gainesville, FL and Vice-Chairs La Vonda R. De Witt, Atlanta, GA; Lynn D. Fleisher, Sidley Austin LLP, Chicago, IL; Betty Pang, Latham & Watkins LLP, San Francisco, CA and S. Christopher Pappas, The Woodlands, TX.

If you would like to join the Interest Group, continue by clicking the following link: Health Law Section IG Sign-up Form.


ABA eSource Editorial Board

The ABA Health eSource Editorial Board is led by Chair Lisa Genecov, Locke Lord Bissell and Liddell LLP, Dallas, TX and editorial board members Michael E. Clark, Duane Morris LLP, Houston, TX; Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI; Marla Durben Hirsch, Potomac, MD; Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA and Jennifer Tsao, Hernandez Schaedel & Associates LLP, Pasadena, CA.

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