At a Capitol press conference this week aimed at touting a broad set of Senate Republican legislative initiatives, Senate Majority Leader Dale Schultz (R-Richland Center) and Senator Carol Roessler (R-Oshkosh), focused most of their time on one issue – reinstating the cap on non-economic damages.

"The Legislature acted earlier this session by passing legislation to restore medical malpractice caps," Schultz said at the press conference. "Governor Doyle vetoed (AB 766), jeopardizing quality health care for Wisconsin residents. Senate Republicans stand ready to act, but need some signal from the Governor that he acknowledges the situation as problematic ... his silence is deafening."

Senator Roessler, who chairs the Senate Health, Children, Families, Aging and Long-Term Care Committee, echoed Schultz’s comments and raised concerns about the impact the loss of the cap will have on access to health care.

"We are hearing of doctors canceling (recruiting) visits to Wisconsin because of our liability situation," said Roessler. "There is no question that restoring the cap is a significant piece of the health care costs and access issue. We must address this."

There appears to be broad bipartisan support for reinstating the cap. Senator Bob Jauch (D-Poplar) stated as much on December 2, 2005 after Governor Doyle vetoed AB 766.

"As one who has been working with the responsible parties to develop a thoughtful, responsible and constitutionally sound proposal that is in the best interest of patients and the health care industry, I am confident that a lasting solution can be achieved," Jauch said. "Even though I have argued against putting an arbitrary value on the worth of a person, I do recognize that there is an opportunity to work together in search of a permanent solution that we can all agree on."

News of a massive $8.5 million medical malpractice verdict coming out of Dane County this week lent an increased sense of urgency to the cause of getting a cap reinstated (see related story in this issue).

"Make no mistake, if a meaningful cap does not get done, it will have a far reaching policy and political impact," said WHA President Steve Brenton. "The Wisconsin medical community is not interested in passing a cap for the sake of passing a cap or making things easier come November elections. It has to be a meaningful number; it will have to make a difference. Reinstating a cap at $1 million, as some are suggesting, is essentially having no cap at all. It may sound like a cap, but our members know better."

In just the six months since the cap was overturned, at least four awards have already exceeded the previous cap of $447,000 — ranging from $700,000 to the recent $4.25 million Dane County award. According to the Wisconsin Academy of Trial Lawyers, during the ten years Wisconsin had a cap (1995-2005), a total of only nine awards exceeded the cap.

In July of 2005, the Wisconsin Supreme Court overturned Wisconsin’s cap on non-economic damages. At the time, the cap was set at $447,000. The $4.25 million in non-economic (pain and suffering) damages awarded in the Greenfield case exceed the previous cap by almost tenfold. Ms. Greenfield was awarded another $4 million in economic damages for lost wages and future medical bills. Economic damages in Wisconsin have never been subject to a cap.

"We no longer need to speculate about the impact of losing the cap – our worst fears have been realized today," said WHA President Steve Brenton "We have been sounding the alarm since July 14, 2005, when the Court repealed the cap and turned our once envied medical liability system upside down. Clearly, Wisconsin is headed towards a litigation disaster and we must do something about it now."

While one can argue whether or not the plaintiff’s condition was the result of the plaintiff’s surgery, one cannot argue that the plaintiff’s condition is truly unfortunate. That is precisely why the health care community provides for unlimited economic damages in medical liability cases. And unlike any other state, the awarded damages, minus attorney fees, are guaranteed to be available to the plaintiff when they are needed. In this case, the plaintiff was awarded over $4 million for lost wages and possible future medical expenses in addition to the $4.25 million in non-economic damages (pain and suffering).

Ironically, the award also comes as the Milwaukee Bar Association prepares to offer a seminar titled: "Life After the Caps: How to Get the Most Money for Your Client." The February 16 seminar will include tips for personal injury lawyers on how to more effectively sue doctors and hospitals and maximize awards. There is even a section titled: "Tools for Trial to Get the Million Dollar Verdict."

"The bottom line is we have to restore balance to the medical liability system, and do it very quickly," said Brenton. "Those injured by medical malpractice must be duly compensated for their loss, but we also have to make sure doctors are not driven out of hospitals and out of Wisconsin. We must not repeat the mistakes of other states that have seen OB/GYNs, neurosurgeons, and other critical care specialists flee in droves."

On December 1, 2005, WHA reported that the Actuarial Committee of the highly regarded Injured Patients and Families Compensation Fund had recommended a 25 percent increase in the annual fees that hospitals and physicians are required to pay into the Fund for malpractice coverage due to the lack of the cap.

"You have to be blind to not see what is happening in Wisconsin," said Brenton. "The Governor and Legislature must reinstate a cap on non-economic damages now. We can’t wait until the 2007 legislative session."

Without question, WHA’s highest immediate priority is restoring a cap on non-economic damages – a necessity thrust upon us by the Supreme Court. I believe the efforts of the WHA government relations team and our members here are well understood (see related articles in this issue of Valued Voice). However, there are numerous other bills that are also high on the WHA priority list as we near the hectic end of the 2005-06 legislative session.

Healthier Choices, WHA’s health care reform plan, was developed in conjunction with WMC and the HMOs association in January of 2004. While many splashier "health care reform" plans have been developed and endlessly discussed since then, many are also gathering dust. Two years later, Healthier Choices continues to serve as our proactive roadmap, and is actually producing results. In fact, many of our ideas are quietly being advanced by others. That’s just fine with us, as long as it is getting done!

One of the unique aspects of Healthier Choices is that less than half of its initiatives required any government/legislative involvement at all. However, of those initiatives requiring legislative attention, a great deal of progress has been made. Here are a few highlights:

Goal: Promote Quality

"Encourage ongoing development of private sector initiatives for collection and public reporting of quality, safety and cost information": Using WHA’s successful privatization of hospital data collection as a model, AB 907 authorizes the state to contract with a private entity to create the Wisconsin Health Information Organization (WHIO) to replace the Physician Office Visit Data (POVD) program. The bill has the strong backing of WHA, was included in the Assembly and Senate GOP’s recent health reform plans, and appears on its way to being signed into law. In the meantime, the WHA Information Center, the father of all Wisconsin health care data privatization efforts, continues to hum along and actually produce valuable data – an unequalled success.

"Promote collaboration… to educate and train consumers in understanding and interpreting publicly reported data": In December 2005, WHA received a $47,000 planning grant from the Wisconsin Partnership Fund for a Healthy Future to develop consumer education to enhance the role of the consumer as an informed partner in the health care system. Delivering on this component of Healthier Choices doesn’t require legislation, and certainly won’t garner a Capitol press conference, but it is a perhaps the greatest example of WHA’s "walk the walk" credibility when it comes to transparency and accountability. Yes, we actually want people to use the information our members produce to make "healthier choices," and to ultimately "reform" health care. And, yes, we will actually follow through on the commitments in this reform plan.

"Facilitate quality improvement efforts by (updating) statutory protections of information generated by peer review committees": WHA convened a task force of Wisconsin’s top health care lawyers (including our own!) that met over almost two years to update the peer review statutes. We view this as a crucial step in the ongoing evolution of quality and safety reporting. The resulting "Health Care Quality Improvement Act," authored by Rep. Gregg Underheim (R-Oshkosh) and Sen. Ted Kanavas (R-Brookfield) is on the fast track, slated for hearings next week in the Senate and Assembly Health Committees.

"Provide low cost financing through WHEFA for targeted information technology purchases by hospitals…": Electronic medical records, CPOE, and various other types of quality and safety improving information technology is expensive. WHA-backed AB 493, authored by Rep. Underheim and Sen. Carol Roessler (R-Oshkosh) would further reduce the cost of borrowing, through WHEFA, to purchase such systems, thus encouraging their acquisition. AB 493 received unanimous support in the Assembly Health Committee and is awaiting action in the Joint Finance Committee. It was also included in the Assembly Republican’s recent package of health reforms.

Goal: Repeal the Hidden Tax

Freeze the Medicaid tax on business by prioritizing funding for Medicaid/BadgerCare in the (2005-07) biennium …": Progress was made toward this goal during the 2005-07 budget. Unfortunately, most of those improvements (discussed extensively in previous issues of The Valued Voice) were vetoed by Governor Doyle. Reforming the Health Insurance Risk Sharing Plan (HIRSP), another Healthier Choices initiative, was recently signed into law.

Goal: Grow Health Care Workforce

"Restore funding for Graduate Medical Education…": We have made tremendous progress in restoring education funding for medical residents – funding that was decimated in the 2003-05 state budget. This session, about half of that funding (more than $12 million), was restored by WHA in the 2005-07 budget.

"Direct the WTCS to develop one state curriculum and admissions standards agreement for each health care occupation program …." and "Direct the WTCS and UWS to immediately begin easing credit transfer between institutions …": WHA backed legislation (AB 246 and AB 350, respectively) authored by Rep. Steve Wieckert (R-Appleton), to accomplish both these goals. AB 246 passed the Assembly but unfortunately appears stalled in the Senate Higher Education Committee. AB 350 seems to have suffered a similar fate in the Assembly Colleges & Universities Committee. Both bills were the subject of intense opposition by the education lobby.

"Call upon the Board of Nursing to modify requirements for classroom and clinical instructors to increase the number of instructors available": And call upon the BON we did, three times to be exact and each time our request was largely ignored. As a result, AB 869 was introduced by Rep. Underheim. AB 869 would make it easier for those with qualifications other than a masters degree in nursing to teach some courses in nursing schools. As expected, this proposal has raised the ire of nurse academia across the state. In fact, it may surprise you to learn that WHA supports "dumbing down" nurse education and nurses. Despite the absurdity of this claim, AB 869 is moving forward with a hearing on February 14 and spurring (finally) serious discussion of the topic.

Another WHA priority/initiative was included this week as part of package of health care proposals offered by Assembly Republicans. Assembly Bill 976, authored by Rep. Jeffrey Mursau (R-Crivitz), would create a loan forgiveness program for Wisconsin residents attending medical school in Wisconsin that agree to stay here and practice in a rural area upon graduation.

Maintaining a favorable medical malpractice environment and providing loan repayment for physicians locating in underserved areas were two key recommendations contained in a 2004 report, "Who Will Care for Our Patients," issued jointly by the Wisconsin Hospital Association and the Wisconsin Medical Society.

Another WHA initiative being developed as legislation includes clarifying health care decision making authority for incapacitated patients who are without a Power of Attorney for Health Care or a Wisconsin Living Will (Declaration to Physicians). We also continue to work on a number of reforms to duplicative or outdated hospital regulations contained in either the statutes or administrative code.

I believe WHA’s government relations team is one of the best in the Capitol. One only need consider the breadth of issues and legislation we are working on to understand.

But as much as we might want to pat ourselves on the back, the truth is we can accomplish nothing without the support and backing of our members. And for that, we say. …THANK YOU!!!

Back in December, the Assembly passed concealed carry legislation, SB 403, after amending the bill on the floor to garner additional support from Democrats in hopes of ensuring a veto override. In January the Senate concurred with the Assembly version with the additional changes, and as expected, Governor Doyle vetoed the bill.

Also as expected last week, the Senate voted 23-10 to override the veto and this week, the Assembly attempted a veto override. However, in the Assembly, the two-thirds majority needed to override the veto fell short (64-34) by two votes as Democrats, Reps. John Steinbrink and Terry Van Ackerren, switched their original vote – this time voting to support the Governor.

SB 403 would have allowed the lawful carrying of concealed weapons in Wisconsin with some exceptions. While proponents argued that people should have the right to carry a concealed weapon for personal protection with little exception, lawmakers on the Joint Finance Committee (JFC) disagreed and agreed with WHA that when patients come to the hospital, they expect the hospital to be safe. Unlike other places, hospitals contain highly combustible materials and if a stray bullet were to hit them, it could have catastrophic consequences for many in the facility.

The JFC amended the bill to allow health care facilities to prohibit the carrying of concealed weapons in their facilities. According to WHA Vice President of Government Affairs Jodi Bloch, "WHA sought the health care facility amendment because we understood that the votes would be very close in the Legislature on a veto override, and we couldn’t take chances with the safety of our patients and staff."

The bill’s authors, Sen. Dave Zien (R-Eau Claire) and Rep. Scott Gunderson (R-Waterford) have vowed that the legislation will be back again next session in 2007.

Make plans now to join the more than 500 health care professionals, trustees and volunteers from across the state at WHA’s Advocacy Day on April 5 in Madison.

Keynote speaker John Fund, a member of the Wall Street Journal’s editorial page, will discuss politics, health care policy and more. Learn why constituent involvement – that is, your involvement – is so important to the legislative process, from national grassroots consultant Christopher Kush, back again in 2006 by popular demand. Kush will teach you how to best present your views to legislators, and then put all these tools into action when you visit with your legislators in the afternoon.

Hear from invited luncheon keynote speaker Governor Jim Doyle and come prepared to ask questions on hot health care topics during a moderated Legislative Leadership Panel. Invited legislators include Senate Majority Leader Dale Schultz (R-Richland Center), Senator Minority Leader Judith Robson (D-Beloit), Assembly Speaker John Gard (R-Marinette) and Assembly Minority Leader James Kreuser (D-Kenosha).

Advocacy Day is a key event for Wisconsin hospitals. It is an opportunity to improve our grassroots effectiveness while learning about the issues that will shape the future of health care delivery in Wisconsin. Again this year, WHA will present an Advocacy Award to a group or individual that has demonstrated a keen understanding of and dedication to grassroots advocacy.

As always, Advocacy Day is a free event, so register your hospital contingent today. You can register by visiting www.wha.org to view the brochure and registration information. Printed copies of the Advocacy Day brochure and registration form are included in this week’s Packet. If you need more information about registration, contact Sherry Rabuck at 608-274-1820, or email srabuck@wha.org.

To schedule your appointment to meet with your legislator on the afternoon of April 5, contact Angela Miloszewicz directly at 608-268-1801.

Last week’s (January 27) President’s Column focused on the fact that a small number of Wisconsin hospitals are disproportionately burdened by caring for the state’s Medicaid population. That column generated so much feedback that I decided to showcase the theme one more time this week.

The following table lists the top 10 Wisconsin hospitals based on Medicaid utilization. Critical Access Hospitals and specialty hospitals are not included.

Hospital                                   Medicaid Utilization FY 2004         Medicaid Inpatient Days

Children’s Hospital of Wisconsin             51.0%                                           29,974

Aurora Sinai Medical Center                   46.7%                                            21,201

St. Michael Hospital, Milwaukee             33.0%                                             7,441

Columbia St. Mary’s, Milwaukee             27.8%                                           15,745

Aurora – Kenosha                                 24.7%                                             5,500

St. Joseph’s, Milwaukee                         22.2%                                           26,006

St. Joseph’s, Chippewa Falls                 22.2%                                             3,563

Memorial Medical Center, Ashland         20.8%                                             3,364

Froedtert Hospital, Milwaukee                 17.5%                                          22,284

St. Francis, Milwaukee                         16.7%                                             7,426

It should be noted that these 10 hospitals account for about 40 percent of statewide inpatient hospital Medicaid utilization. And it’s not surprising that the hospitals are almost exclusively located in the Greater Milwaukee Area.

Wisconsin’s current Medicaid Disproportionate Share program (DSH) is intended to provide "special payments" to high Medicaid utilization hospitals. State funding for Medicaid DSH payments has not kept up with hospital expense inflation or rising utilization. In fact, DSH payments haven’t increased for about a decade.

A key plank of WHA’s Medicaid payment agenda is to improve and enhance Medicaid DSH. If successful, hospitals identified in the above chart along with a handful of other high Medicaid utilization community hospitals will likely benefit from our legislative success…as well they should. Geographic location and patient demographics should not be proxies for financial distress and disproportionate cost shifting.

Steve Brenton
President

The Wisconsin Department of Health and Family Services issued a new memo explaining the variance of Chapter 124 of the Administrative Code: Authentication of Physician Orders. The new memo reiterates DHFS’s position that all verbal and telephone orders must be authenticated by the prescribing member of the medical staff in writing within 48 hours of receipt.

DHFS’s memo emphasizes that the Bureau of Quality Assurance is retaining the previous State’s interpretation concerning circumstances under which a verbal or telephone order can be authenticated by a physician who is not the prescribing physician. BQA will permit such authentication if: (1) the physician giving the verbal or telephone order is a member of the medical staff; (2) the physician who signs the order is a member of the medical staff; (3) the hospital has developed medical staff bylaws and hospital policies delineating circumstances under which the non-ordering physician may sign the order. DHFS concludes by stating that the signing physician is then "legally and professionally responsible for the treatments and medications prescribed under the orders, as well as the diagnostics on which the orders are based."

The DHFS standard, unfortunately, is not the same as the Medicare standard outlined in the Medicare Interpretive Guidelines, which the hospital also must meet. The language from the Guidelines follows:

In some instances, it may be impractical for the ordering physician to authenticate his or her verbal order (e.g., the ordering physician gives a verbal order which is written and transcribed, and then is "off duty" for the weekend or an extended period of time). In such cases, it is acceptable for a covering physician to co-sign the verbal order of the ordering physician. The signature indicates that the covering physician assumes responsibility for his or her colleague’s order as being complete, accurate and final. This practice must be addressed in the hospital’s policy. However, a qualified practitioner such as a physician assistant or nurse practitioner may not "co-sign" a physician’s verbal order or otherwise authenticate a medical record entry for the physician who gave the verbal order.

AHA members should have received materials for AHA’s Annual Meeting to be held April 30 through May 3 in Washington, DC. WHA will coordinate a number of special member events during this meeting, including a lunch/briefing on May 2 and a dinner on May 1. Time has been set aside on Wednesday, May 3 for Hill visits.

The Annual Meeting provides Wisconsin hospital leaders the opportunity to network with peers from across the country, hear from key policymakers and, most importantly, meet with Wisconsin Congressional members on issues of importance to your hospital and the public you serve. WHA encourages you to consider attending this important event.

To facilitate Hill visits, WHA staff will make appointments with members of the Wisconsin delegation on your behalf. Please contact Jenny Boese, vice president of external relations & member advocacy, at jboese@wha.org or 608-268-1816 if you are attending the AHA Annual Meeting or if you need additional information.

Paul Smith, MD, associate professor at the UW Department of Family Medicine, presented the most recent research regarding health literacy at the January 26, 2006 Medical and Professional Affairs Council meeting. Smith defined health literacy as the "degree to which an individual has the capacity to obtain, process, and understand basic information and service needed to make appropriate decisions regarding their health."

Research shows that low literacy leads to poor health knowledge, lower health status, more hospitalizations, and higher health care costs. It is estimated that the increased health care costs of low literacy is $73 billion per year, most of which is paid for by taxpayers via Medicare and Medicaid.

Smith suggested several ways that hospitals can begin to improve health literacy including:

• Raise awareness among hospital staff and clinicians
• Review your signage to make sure that it is easy to use
• Review documents used in your organization for reading level and difficulty of completion
• Partner with the literacy council in your community

Sue Ring-Wagner from Kindred Hospital presented council members with information about the Wisconsin market for long term acute care hospitals (LTACH), services provided by LTACHs, and the unique challenges they face. Ring-Wagner outlined the differences between rehabilitative care, skilled nursing facilities (SNF), and LTACHs indicating that LTACHs focus on patients with long term needs in a hospital setting. Typical services of a LTACH include pulmonary management, management of the medically complex patient, comprehensive wound care, transitional rehabilitation, and medical behavioral services.

Council members discussed issues that hospitals around the state are experiencing in placing long term acute care patient. WHA President Steve Brenton indicated that WHA will facilitate a work group to evaluate the current market and determine if there are issues that WHA can address in this area.

Laura Leitch, WHA general council, presented information on the Wisconsin Quality Improvement Act. This act is under development to strengthen and replace Wisconsin’s current peer review law. Wisconsin’s peer review law needs to be updated because a series of court decisions has eroded the protections intended by the Legislature and there are new quality improvement methods that are not protected. The Quality Improvement Act will encourage health care providers to improve patient care, encourage innovative health care quality and safety activities, advance transparency in the health care market, and encourage a learning environment.

Tania Daniels and Julie Apold of the Minnesota Hospital Association (MHA) provided an overview of their experience with adverse events reporting in Minnesota. The MHA system currently reports on the National Quality Forum’s 27 never events. Daniels reported that hospitals in Minnesota benefit from this system by sharing information including incidence, root cause analyses, and corrective action plans. Since this system has been implemented, Minnesota hospitals have received safety alerts and other improvement information based on the information reported. Council members unanimously endorsed the concept of developing an adverse events reporting initiative in Wisconsin.

Governor Doyle took the Capitol on the road this week when he and members of his cabinet visited Rock County. Among the stops was Beloit Memorial Hospital. While at the hospital, Doyle was able to take a brief tour and address a health care legislative forum attended by roughly 40 hospital personnel.

Doyle focused his remarks on three proposals recently unveiled in his State of the State address. Those include extending FamilyCare statewide, expanding BadgerCare to 200 percent of the federal poverty level (from 180 percent) and helping provide access to catastrophic care.

Doyle said he believes expanding FamilyCare will save money, that extending BadgerCare will provide more individuals access to care, and that forming one large buying pool for catastrophic care allows the state to leverage its purchasing power.

During his remarks Doyle also referenced his desire to see Wisconsin as "the first state to have a truly integrated electronic medical records system."

The second part of the forum included a legislative panel focused primarily on the health care needs of Rock County’s underserved children. Panel members included Department of Health and Family Services Secretary Helene Nelson, Rock County’s Health Educator Lori McMillan; Jane Fossum, MD; Jonas Lee, MD; Gary Adamski, MD, and Eugene Gonzales, MD.

Panelists agreed that access to dental care and to mental health care for children are the main issues to be addressed in Rock County. Sec. Nelson responded that after four similar health care forums across the state, access to dental care was the number one issue brought up.

Twenty Meriter employees participated in a legislative breakfast with State Senator Jon Erpenbach (D-Middleton). Erpenbach provided the group with his perspectives on various legislative issues, including Medicaid, nursing homes and restoring a cap on medical liability.

Turning to the issue of the day for hospitals and doctors, Terri Potter, Meriter CEO, asked Sen. Erpenbach for his position on restoring a medical liability cap in Wisconsin.

"I’ve always been supportive of caps, but I would like more flexibility," Erpenbach answered, indicating his support for a cap at $1 million and an automatic annual increase. When Erpenbach was asked specifically if he would support a flat $750,000 cap with no automatic increase, as is being supported by the Wisconsin Hospital Association, he responded, "Maybe."

In 2005, the Wisconsin Supreme Court overturned Wisconsin’s 10-year old law capping non-economic damages. Last fall Governor Doyle vetoed legislation, Assembly Bill 766, which would have restored that cap. Legislators are back at work again this spring on a second proposal to restore the cap but only have, effectively, until March before the Legislature adjourns until 2007.

During the discussion Sen. Erpenbach also brought up the rising cost of health care. Mae Knowles, Meriter’s public relations coordinator, responded that government under-funding of programs such as Medicaid play their role in the problem. "Government programs are not covering their cost of insurance," she began. "That’s why private insurance has to cover the costs, and rates do not come down." Sen. Erpenbach understood and said that the Legislature has to step up and "put our money where our mouth is."

Terri Potter provided an example of the stark reality hospitals and nursing homes face due to Medicaid under-funding.

"Our board made a decision last night to reduce the number of nursing home beds because of Medicaid reimbursement. It’s not something we want to do, but it’s our reality. We cannot continue to serve this magnitude of residents and still stay in business."

Sen. Erpenbach said he and the Legislature are well aware of the nursing home crisis and indicated he thought the shortfall would be addressed by the Legislature within the next several weeks.

Meriter Vice President Fred McGee closed the session with several salient points on the importance of health care to Madison and its surrounding communities. "In Dane County, one in every 10 households receives their income from health care. This industry is a significant factor in our local economy."

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