1. KATRINA UPDATE – Last week the Administration announced two new initiatives: section 1115 waivers for Medicaid coverage for evacuees and an HHS Medical Travel Center to arrange for the transfer of evacuees from health care facilities in "host" states. In order to assist states in providing temporary Medicaid coverage to evacuees, the Administration released a new 1115 waiver initiative. The 1115 waivers, effective retroactively to August 24, 2005, provide up to five months of Medicaid or SCHIP coverage to certain, specified groups of evacuees and allow for an "uncompensated care pool" that would cover evacuees and services not covered by Medicaid or SCHIP. The waiver initiative is an alternative to the Emergency Health Care Relief Act (S. 1716) introduced by Senators Charles Grassley (R-Iowa) and Max Baucus (D-Mont.), which would provide temporary Medicaid eligibility with 100% federal financing for a more inclusive group of evacuees. As of October 24, 2005, CMS had approved twelve waivers. All of the approved waivers use the Health and Human Services ("HHS") suggested eligibility guidelines, which do not provide coverage for adults without dependent children. Seven of the waivers authorize an uncompensated care pool to provide assistance to those individuals not already covered by the temporary Medicaid coverage. However, financing of temporary Medicaid coverage and the levels and sources of funding for the uncompensated care pools remain unclear. Although, the waivers use the standard Medicaid and SCHIP funding processes, which would require for the "Host" states to pay matching payments, separate MOUs signed between the federal government and the "Home" states of Louisiana, Mississippi, and Alabama acknowledge the "Home" states' responsibility to pay the state share of Medicaid and SCHIP costs for Katrina evacuees receiving care in "Host" states. In order to facilitate the transfer of evacuees in health care facilities in "Host" states or who otherwise have on-going medical needs back to certain areas of Louisiana, Mississippi, and Texas, HHS has created the HHS Medical Travel Center transportation program. The HHS Medical Travel Center will arrange for transportation and cover all costs for all evacuees that currently require en-route medical care and/or medical transport, back to their "Home" state or to an interim state. All medical evacuees wanting to take advantage of the Travel Center must register with FEMA and obtain a Disaster Registration Number from the FEMA Registration Center. Reporter, Susan Feigin Harris, Houston, 713.758.3465 or sharris@velaw.com.
2. COURT RULING PERMITS DISCOVERY OF PSYCHOTHERAPY NOTES – The U.S. District Court for the District of Columbia issued a ruling that allowed discovery of the plaintiff's psychotherapy notes. In Kalinoski v. Evans, the U.S. District Court for the District of Columbia denied a licensed social worker's ( "LSW's") motion to quash a subpoena for the LSW's psychotherapy notes regarding the plaintiff in a lawsuit. The LSW's motion to quash asserted that such notes were (1) privileged under the federal common law on psychotherapy privilege, and further, (2) the HIPAA Privacy Rule prohibited the disclosure of psychotherapy notes without the patient's authorization. The court rejected the LSW's assertions that the psychotherapy notes were privileged, stating that the privilege is waived when a plaintiff places his or her mental state at issue, as the plaintiff had done by asserting that the defendant's actions had caused her severe emotional distress. Under the HIPAA Privacy Rule, the court noted that "a covered entity must obtain an authorization for any use or disclosure of psychotherapy notes." The court found, however, that the plaintiff had in fact provided a Privacy Rule-compliant authorization, permitting the LSW's disclosure of "any and all documents . . . regarding [plaintiff], including but not limited to . . . [c]opy of complete chart, progress notes & interview notes." Although the authorization did not specifically state that it applied to psychotherapy notes, the court found the fact that it was addressed to a psychotherapist, and authorized the disclosure of "progress notes" and "interview notes," was sufficient to authorize the disclosure of the psychotherapy notes under the HIPAA Privacy Rule. Reporter, Jason Pinkall, Houston, 713.758.4570 or jpinkall@velaw.com.
3. TEXAS SUPREME COURT ADDRESSES MEDICAL PEER REVIEW PRIVILEGE – On October 14, 2005, in In re Living Centers of Texas, the Texas Supreme Court granted mandamus relief to a nursing home in a discovery dispute involving the application of the medical committee and medical peer review privileges to nursing home records. The dispute arose out of a trial court order to produce certain records, including Quality Assurance and Assessment ("QA & A") logs, treatment records, and records related to the licensing, training, and evaluation of nurses. The trial court denied the Living Center's privilege claim for the QA & A logs on the basis that the documents were not marked with the privilege stamp required by the center's QA & A plan. On this point, the Texas Supreme Court held that the trial court had abused its discretion, explaining that the inadvertent failure to utilize internal procedures for identifying privileged documents does not automatically waive the privilege. However, the Texas Supreme Court found the remaining documents at issue to be outside the asserted privileges. The treatment records were not protected because the medical committee and peer review privileges do not extend to patient records made in the ordinary course of business. The nursing peer review privilege was not available for the records related to the licensing, training, and evaluation of nurses because the Living Center had failed to establish a nurse peer review committee consistent with the statutory requirements. Reporter, Amanda Borichevsky, Austin, 512.542.8844 or aborichevsky@velaw.com.
4. VINSON & ELKINS ATTORNEY NAMED OUTSTANDING YOUNG HEALTHCARE LAWYER – Nightingale's Healthcare News, a respected industry trade publication, listed Greg Etzel as one of fourteen "Outstanding Young Healthcare Lawyers" of the year. The publication highlighted Greg's successful representation of hospitals in payment disputes with intermediaries and CMS regarding cost reporting or other reimbursement issues. Greg's primary area of practice includes the representation of clients in health care regulatory matters and payment disputes before administrative bodies such as the Provider Reimbursement Review Board, and in federal courts.
To view this week's Health Briefs (a listing of Federal and Texas regulations affecting health care), visit our website at http://www.velaw.com/pdf/resources/HB102805.pdf.
For more information about Vinson & Elkins' HIPAA Consortium, please contact Brenda Strama at 512.542.8544 or bstrama@velaw.com.
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Editor: J.D. Epstein jepstein@velaw.com
Issue Editor: Christina McGarvey cmcgarvey@velaw.com
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