News and information useful to Cleveland-Marshall College of Law students, faculty and staff.

Ohio “Heartbeat Bill” Sent to Governor Kasich

photo of Ohio StatehouseThe Ohio General Assembly recently passed HB258, a bill “to generally prohibit an abortion of an unborn human individual with a detectable heartbeat and to create the Joint Legislative Committee on Adoption Promotion and Support.”  The bill provides exceptions to prevent the death or “serious risk of the substantial and irreversible impairment of a major bodily function” of a pregnant woman, but no exceptions for pregnant women who are victims of rape or incest.  The bill also states the Director of the Ohio Department of Health may adopt rules “specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat of an unborn individual based on standard medical practice,” and specifies “the rules shall require only that an examination shall be performed externally.”  HB258 was sent to Governor John Kasich on 12/14/18.  Per the Ohio legislative process, if the Governor does not sign or veto the act after 10 days (excluding Sundays), it becomes law without the Governor’s signature.  Kasich vetoed a similar act in December 2016, and says he will veto this new act after waiting 10 days. [See 12/14/18 Columbus Dispatch post.]  The Ohio Senate and House have scheduled sessions on 12/27/18, but it is unlikely there are sufficient votes for a 3/5 veto override.

C|M|Law Students Working to Amend Ohio Psychiatry Patient Laws

Photo of someone holding hand of elderly patient in bedAdjunct Professor David E. Schweighoefer has taught “Psychiatry and the Law” for over a decade at Cleveland-Marshall College of Law.  This year, several of his students are working on an independent study with him and St. Vincent Charity Medical Center with the objective of amending Ohio law concerning the mandatory transfer of patients needing psychiatric care to a licensed inpatient psychiatric unit.  The students are particularly looking at how current law may negatively impact patients who are primarily receiving care for medical, not psychiatric, reasons.  Schweighoefer is chair of Day Ketterer’s Health Care Law Practice Group, and he organized the collaborative project with C|M|Law and St. Vincent.  Students have met with St. Vincent physicians, staff and general counsel, as well as the Ohio Hospital Association Behavioral Health Work Group.  Students will soon meet with Ohio Department of Mental Health & Addiction Services staff and selected Ohio legislators to seek support for drafting legislation to give hospitals the ability to provide the best possible medical care to patients who may also need psychiatric care.

Pew/AMA/MedStar Report on Improving Electronic Health Record Safety

Graphic of Electronic Health RecordThe Pew Charitable Trusts, American Medical Association (AMA), and MedStar Health National Center for Human Factors in Healthcare recently released a report on “best practices and model test cases to guide rigorous safety assessments of EHRs.”  Ways to Improve Electronic Health Record Safety reports federal EHR certification requirements (see 45 C.F.R. 170) “do not address circumstances in which customized changes are made to an EHR as part of the implementation process or after the system goes live,” and there are no “requirements and guidance on how to test clinician interaction with the EHR for safety issues.”  These challenges “can fail to prevent – or even contribute to – patient harm.”  The report includes a multidisciplinary expert panel’s “recommendations on how to advance usability and safety throughout the EHR software life cycle” and “criteria detailing what constitutes a rigorous safety test case and the creation of sample test case scenarios based on reported EHR safety challenges.”  For more information, see the 8/28/18 Pew Charitable Trusts article Better Testing of Electronic Health Records Needed to Protect Patients and AMA Improving Electronic Health Records page (navigation: AMA > Delivering Care > Digital Health Leadership > Adoption & Scale of Digital Health Solutions in Practice).

ONC Request for Information on Electronic Health Record Reporting Program

Graphic of Electronic Health RecordThe U.S. Office of the National Coordinator for Health Information Technology (ONC) recently issued a Request for Information (RFI) seeking “input from the public regarding the Electronic Health Record (EHR) Reporting Program….  Responses will be used to inform subsequent discussions among stakeholders and future work toward the development of reporting criteria under the EHR Reporting Program.”  Written or electronic comments must be received by 5pm 10/17/18.  The EHR Reporting Program was established by the Section 4002 of the 21st Century Cures Act (Pub. L. No. 114-255 Title IV, § 4002, 130 Stat 1159, 12/13/16; codified at 42 U.S.C. § 300jj-19a).  The ONC is part of the U.S. Department of Health and Human Services Office of the Secretary, and it supports “the adoption of health information technology and the promotion of nationwide health information exchange to improve health care.”

Ohio’s Application for PPACA State Innovation Waiver Denied

CCIIO logoOhio’s application for a State Innovation Waiver under section 1332 of the Patient Protection and Affordable Care Act (PPACA) was recently denied. Ohio was specifically seeking to waive the “individual mandate.”* Per federal guidelines (see 45 C.F.R. 155.1308(c)), the application was reviewed by the U.S. Department of Health and Human Services and the U.S. Department of the Treasury (hereinafter “the Departments”). The Departments found the application to be incomplete, as communicated to the Ohio Department of Insurance in a 5/17/18 letter from Randy Pate, Director of the Center for Consumer Information & Insurance Oversight (CCIIO) and Deputy Administrator of the Centers for Medicare & Medicaid Services. Specifically, the Ohio application did “not include a description of any program implementing a waiver plan for providing coverage that meets section 1332 requirements,” and did not include a description of the reason Ohio was seeking to waive the “individual mandate.” [See requirements detailed at 42 U.S.C. 18052 and 45 C.F.R. 155.1308(f)(3)(iii).] The CCIIO oversees the implementation of PPACA provisions related to private health insurance, including Section 1332 State Innovation Waivers, which permit a state to “pursue innovative strategies for providing their residents with access to high quality, affordable health insurance while retaining the basic protections of the ACA.” After the Departments make a preliminary determination that a State Innovation Waiver application is complete, they provide for a public notice and comment period, and make a final decision on the application within 180 days.

*The “individual mandate” was originally codified at 26 U.S.C. §5000A and 26 C.F.R. 1.5000A-2. The Tax Cuts and Jobs Act (Pub. L. No. 115-97, 131 Stat. 2054, 12/22/17; text not yet available – see Section 11081 of H.R. 1, 115th Cong., 2017) repealed §5000A and eliminated the penalty associated with the individual mandate, beginning in 2019. However, no changes were made to the statutory language that established the mandate. For more information, see The Individual Mandate for Health Insurance Coverage: In Brief, by the Congressional Research Service.