Health Care ADR

... 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.

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.