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  • WisBar News
    August 19, 2016

    The Future of Health Care in America: Data is the Way Forward

    Attorneys got the latest updates this week at the State Bar of Wisconsin’s Health, Labor, and Employment Law Institute. Learn why data is so important to the health care system, and get some other tips from speakers at the HLE in Wisconsin Dells.

    Joe Forward

    Aug. 19, 2016 – Healthy eating and exercise help us stay healthier. We know it as common knowledge, and our doctors remind us every year. But are we complying with this common knowledge, and with a health care provider’s medical advice?

    Maybe we just don’t want to give up steak sandwiches or run 5 miles a day. But maybe it’s something else. Do I have access to fresh fruits and vegetables? Do I work too much to exercise? Too stressed? Am I immobilized by a family situation?

    “The data will allow us to show who will be more compliant, because if you and I have the same diagnosis, but I’m a more compliant patient, I might actually meet the protocols to help me reduce my health risks, where a less compliant patient might not,” said David Cade, chief executive officer at the American Health Lawyers Association in Washington, D.C.

    David Cade

    David Cade, CEO of the American Health Lawyers Association in Washington, D.C., talks about the "Future of Healthcare in America."

    “Compliance may not be a choice for some people,” said Cade, who talked about the “Future of Health Care in America” at the State Bar of Wisconsin PINNACLE® two-day Health, Labor, and Employment Law Institute (HLE) in Wisconsin Dells.

    Some people may have transportation issues, he said. Maybe the people, the communities, or the networks around us prohibit compliance with health advice. Or maybe we don’t get health advice at all, if something prevents annual doctor visits.

    “Even though we have the same diagnosis, maybe you require a greater level of care than I, in order to stay compliant. You need the follow-up phone call. You need more community support,” said Cade. “The clinicians need to know what’s happening in your personal world. And data can help them better understand what you need.”

    At the same time, if clinicians don’t know the collateral issues that are preventing compliance with healthy behavior, they can be held accountable for outcomes that are beyond the clinician’s control. It’s going to cost more to treat those types of cases.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The Perfect World

    In Cade’s perfect world, the health care system would be data-driven to the patient level. The clinician needs data about the variations that exist between patients.

    “And the data needs to be easily transportable to make it easy for the patient and the provider. In my perfect world, the data is there, and it can populate to any provider I see,” Cade said. “The burden of constant data entry is gone, and the data is in real time.

    “We also need to make sure that we are truly measuring the right things,” Cade said. “We can’t just measure whether the payment is right. We have to pay more attention to measuring the patient care pattern. I think we are starting to properly align the two.”

    Cade says the technology exists to implement data-driven health care, but the system is still too siloed to use it as a reforming mechanism. “That’s been a huge frustration from the patient’s point of view,” he said. “We have been very facility-specific.”

    Do state and federal medical records privacy laws need to change to allow more innovation? “We need to protect the data, but we have to be flexible enough to use data effectively. Data migration is a good example,” Cade says. “It needs to be much easier for patients to migrate data when they move among providers.”

    When the data is available in the way Cade says it should be, clinicians will have a head start on understanding the patient’s needs. “It gives clinicians the data they need before you walk in the door. We can save a whole lot of time if the data is already there.”

    Daniel Finerty

    Daniel Finerty, a member of the HLE Planning Commitee, introduces a speaker at the 2016 HLE Institute.

    Speaking of Stress

    Is all this talk about data stressing you out? Dr. Tammy Scheidegger helped attorneys understand how their brains process and store toxic stress, and what to do about it.

    Did you know that stressful or traumatic childhoods can impact your physical health later in life? Stress can determine the way our brains are wired early on, Scheidegger says. But rewiring is possible through a detoxification process. Learn to destress yourself of toxic stress, including bad relationships and situations.

    Some steps sound simple enough. Sleep more (eight hours per night is your goal), eat healthy, and exercise. But Scheidegger, an associate professor in counseling at Mount Mary University, understands that even simple steps may be difficult for a busy attorney. “How can you exercise when you are working 80 hours per week?”

    Stay attuned to your body's natural functions, she says. If you have to go to the restroom, go to the restroom. “How many of you come home from work and realized you forgot to go to the bathroom? Not doing so can lead to toxic stress you may not realize," she said. Breathing is also another pressure valve for stress.

    “Learn how to breathe,” she says. “I know you can all breathe because you are sitting here alive in front of me. It’s so simple, but breathing can go a long way to reduce stress. Exhale twice as long as you inhale. Take time to breathe, if nothing else.”

    Your Health and Wellness

    Cade wants data-driven health care to help change patient behavior and patient care. Dr. Scheidegger wants us to rid ourselves of toxic stress. Barbara Zabawa, president of the Center for Health and Wellness Law and chair-elect of the State Bar’s Health Law Section, wants to help lawyers understand the laws on workplace wellness programs.

    Did you know that at least 10 federal laws can apply to workplace wellness programs that are part of group health plans, in addition to state laws that may apply? But even for non-group health plans, at least six federal laws can apply, in addition to state law.

    “Whether the wellness program is voluntary is a threshold question,” said Zabawa, who recently wrote an article on new federal regulations that apply to workplace wellness programs.

    Barbara Zabawa

    Barbara Zabawa, president of the Center for Health and Wellness Law and chair-elect of the State Bar's Health Law Section, talks workplace wellness programs and the various federal laws that apply.

    All workplace wellness programs must be voluntary, and they cannot simply collect data and do nothing to help employees improve health.

    And employers can use financial incentives to encourage participation, but there’s a point at which such programs are no longer viewed as voluntary, Zabawa explained.

    Health, Employment, and Labor Law Equals Synergy

    “There’s a synergy between health, labor, and employment law,” Cade says. “It’s really smart to bring these disciplines together to understand how they interact.”

    So when your employer makes a request for health records, attorneys like M. Scott LeBlanc of Godfrey & Kahn S.C. in Milwaukee can help you understand how the law on health records requests apply to such requests by employers. 

    At HLE, LeBlanc talked about mental health records in particular, which can be treated differently under state and federal law, depending on who is asking for them.

    “Federal law trumps state law when there is a conflict,” said LeBlanc, who dove deep into HIPAA and the Wisconsin laws on health record requests. “Some states provide more protections. The law which is more protective of individual privacy applies.”

    Keeping workers healthy, happy, and productive is a great goal for the employer-employee relationship. But what happens when things start going bad? 

    Laurie Peterson, who represents employers at Lindner & Marsack S.C. in Milwaukee, and employee-side attorney Richard Rice of Fox & Fox S.C. in Monona, talked about “Firing Someone the Right Way,” and what the courts will review in litigation.

    Laurie Peterson and Richard Rice

    Laurie Peterson of Lindner & Marsack S.C. in Milwaukee teamed up with Richard Rice of Monona to discuss "How to Fire Someone the Right Way."

    “Drafting and communicating workplace policies and rules through employee handbooks and other written documentation sets the ground rules for the relationship and avoids surprises for employers and their employees,” Peterson said.

    Blowing the Whistle

    What if your employee is doing a great job, but the employer is fraudulently billing the federal government? In that case, the employee might be incentivized to file a “whistleblower lawsuit” under the False Claims Act.

    And the employer may face someone like Daniel Fruchter, an assistant U.S. Attorney in healthcare fraud, when that time comes. Both Fruchter and attorney Alan Olson of Olson & Associates S.C., New Berlin, explained the tactical considerations in “Introduction to the False Claims Act” (aka Qui Tam or whistleblower lawsuits).

    Did you know that in 2015, there were more than $3.5 billion in recoveries, and the “whistleblower” employee is entitled to a share of any recovery?

    “Between January 2009 and the end of fiscal year 2015, relators received more than $3 billion in whistleblower awards,” said Fruchter, who prosecutes entities for the U.S.

    But even if the U.S. does not intervene, a private citizen can sue on behalf of the U.S., and the False Claims Act provides for the recovery of treble damages.

    If You Missed It

    Did you attend HLE? This article only highlights a few of the many programs at the 2016 Health, Labor, and Employment Law Institute. Check out the HLE Webast Replay Calendar for select programs that you might have missed. These replays are part of the HLE registration package through Oct. 18, 2016.

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