[The UN-Convention on the Rights of People with Disabilities and the transition from school to vocational training and career in Germany: public data sources under close scrutiny]. / Die UN-Behindertenrechtskonvention und der Übergang Schule-Ausbildung-Beruf in Deutschland: Öffentliche Datenquellen auf dem Prüfstand.

This paper analyzes public data sources and their requirements for the transition from school to vocational training and career of people with disabilities in the context of Article 31 of the UN-Convention on Rights of People with Disabilities. Different focuses of the public data sources within the involved systems and challenges in data analysis will be presented. These manifest themselves as cross-system interface problems when it comes to the identification and whereabouts of young people with disabilities at the transition from school to vocational training and employment. With these challenges public data sources on the transition from school to vocational training and employment are especially under scrutiny when it comes to developing and implementing policies in respect to the Convention on Rights for People with disabilities and the provision of adequate planning data.

[Autopsies in Switzerland, Germany and Austria: considerations about legal facts and the current situation]. / Obduktionen in der Schweiz, Deutschland und Österreich: Rechtliche und rechtstatsächliche Untersuchungen.

Significant reasons militate for the implementation of clinical autopsies: On the part of physicians and nurses, there is quality assurance, establishment of legal certainty regarding possible accusations of medical errors and development of treatment methods. On the part of patients and their relatives, there is consolation and relief in cases of unexpected death, insight into genetic dispositions and insurance law concerns, to name only a few. However, a continuing decrease of clinical autopsies can be observed in Switzerland, Germany and Austria. The thesis asserting that the often required informed consent of the deceased during his/her lifetime or of close relatives is a crucial reason for this decrease needs to be called into question due to recent studies. Mainsprings are rather structural reasons, such as the often deficient communication with the patient or close relatives, economic reasons, namely the frequently insufficient remuneration for the clinical autopsy, organizational causes, in particular the repeatedly encountered suboptimal collaboration between the individual departments and the pathology department, the high administrative effort and probably the decreasing appreciation of the clinical autopsy.

Wielding the wand without facing the music: allowing utilization review physicians to trump doctors' orders, but protecting them from legal risk ordinarily attached to the medical degree.

This Note identifies a discrepancy in the law governing the decisionmaking that directs patient care. Seeking treatment that a third party will pay for, a patient needs not only a physician-prescribed course of treatment but also an insurer's verification that the cost is medically necessary or otherwise covered by the patient's plan. Both of these decisions directly impact the ultimate care delivered to the patient, but are governed by two very different liability regimes. A patient who suffers an adverse outcome may sue his physician in tort, while a patient who suffers from a lack of coverage may generally sue his insurer only under contract. In other words, when a patient suffers from inadequate care, his potential remedies vary considerably depending on whether the physician or the insurer is the defendant. This discrepancy in liability is the consequence of the federal law governing the administration of employer-sponsored health plans, and its extensive preemption of related state law. Many commentators have called for legal reform to address the distortion of managed care liability that results, arguing that managed care liability must be consistent or that wronged beneficiaries must have access to meaningful remedies. This Note argues that the federal law governing managed care organizations is problematic for a different reason and that the first step toward reform may be more elementary than previously suggested. Specifically, it suggests that the law governing insurers' coverage decisions is inconsistent with the law governing treatment recommendations. Patients suffer the same harm from error in both contexts-but because they can recover substantially more from treating physicians, doctors are named as defendants even when the insurers make errors. Further, this Note argues that simply aligning these two standards might offer a gateway to reform.

[Drug utilization and pharmaceutical cost-containment in germany-perspectives 1 year after enactment of the GMG]. / Arzneimittelversorgung und Kostendämpfungspolitik Perspektiven 1 Jahr nach dem GMG.

After 3 decades of health care cost containment in Germany, enactment of the most recent reform (Health Insurance Modernization Act, GMG) marks a watershed insofar as, apparently, the potential has been largely exhausted for further savings in pharmaceutical spending. Yet the new drugs segment maintains its role as a growth driver, owing to the continuing shift from older to new, and frequently more expensive, products. This observation holds true even after introducing phase 2 reference pricing, covering so-called me too products. Health economic analyses would be required to better differentiate pharmaceutical products based on their incremental cost-effectiveness ratio. However, the opportunity was missed with the GMG to introduce formal health-economic evaluations and thus overcome the counterproductive silo mentality associated with traditional German component management. International experience from Australia, Canada, and the United Kingdom suggests that economic evaluations, while informing rational reimbursement decisions, may in fact contribute to increasing pharmaceutical expenditures. Further tightening of pharmaceutical component management in Germany may result in increasing inefficiencies due to underuse of effective products; furthermore, it appears conceivable that ("second order") dynamic inefficiencies and, hence, social costs might be the consequence of reduced pharmaceutical research and development expenditures.

Consideraciones éticas y médico-legales sobre la limitación de recursos y decisiones clínicas en la pandemia del COVID-19 / Medico-legal and ethical considerations on resource limitation and clinical decisions during the COVID-19 pandemic

La pandemia por COVID-19 ha suscitado problemas éticos y médico-legales, entre los que destaca la asignación equitativa de recursos sanitarios, sobre todo en relación a la priorización de pacientes y el racionamiento de recursos. El establecimiento de prioridades está siempre presente en los sistemas sanitarios y depende de la teoría de justicia aplicable en cada sociedad. El racionamiento de recursos ha sido necesario en la pandemia por COVID-19, por lo que se han publicado documentos de consenso para la toma de decisiones sustentadas en cuatro valores éticos fundamentales: maximización de los beneficios, tratar a las personas igualmente, contribuir en la creación de valor social y dar prioridad a la situación más grave. De ellos derivan recomendaciones específicas: maximizar beneficios; priorizar a los trabajadores de la salud; no priorizar la asistencia por orden de llegada; ser sensible a la evidencia científica; reconocer la participación en la investigación y aplicar los mismos principios a los pacientes COVID-19 que a los no-COVID-19

The COVID-19 pandemic has raised ethical and medico-legal problems, which include the equitable allocation of health resources, especially in relation to the prioritization of patients and the rationing of resources. Priority setting is always present in healthcare systems and depends on the theory of justice applicable in each society. Resource rationing has been necessary in the COVID-19 pandemic, and therefore consensus documents have been published for decision-making based on four fundamental ethical values: maximization of benefits, treating people equally, contributing to creating social value and giving priority to the worst off, from which specific recommendations derive: maximize benefits; prioritize health workers; do not prioritize attendance on a first-come, first-served basis; be sensitive to scientific evidence; recognize participation in research and apply the same principles to COVID-19 patients as to non-COVID-19 patients

Judicial and legislative responses to cost containment.

Cost containment through reduction of insurance benefits and aggressive utilization review is increasingly risking the sacrifice of good clinical care in the pursuit of financial objectives. This article provides examples of judicial and legislative responses to perceived fiscal intrusions into clinical practice. Principles for asserting clinical goals in the cost containment process are also provided to assist in the inevitable negotiations and battles ahead.

Liability and managed care. American Academy of Pediatrics, Committee on Medical Liability.

This statement is intended to inform practitioners of the liability issues arising from managed care arrangements. Although it is not possible for pediatricians to completely insulate themselves from all liability in these areas, this statement offers a number of strategies to decrease the chances of being successfully sued. However, because case law within this realm is constantly evolving in each state, these serve only as guidelines and are subject to both local and emerging developments.

The critical role of ERISA in state health reform.

Despite prominent roles for employers and state regulation in the Clinton administration's Health Security Act, relatively little attention has been accorded to the impact of federal preemption of state legislation through the Employee Retirement Income Security Act (ERISA). As interpreted by the U.S. Supreme Court, ERISA permits state regulation of insured employee health plans but otherwise preempts analogous regulation relating to self-insured benefit plans. This has prompted lower courts to find that hospital rate-setting legislation, regulation of preferred provider organizations (PPOs), and medical malpractice suits for utilization review decisions are preempted by ERISA. Several issues with major implications for health reform remain unresolved, such as the availability of ERISA preemption to self-insured health alliances and health maintenance organizations (HMOs).

Contract law: relationship between dermatologists and third-party payers.

The relationship between third-party payers and dermatologists is generally governed by a written contract. That relationship can be more beneficial to the dermatologist, and chances of liability may be decreased, both for breach of contract and for malpractice, if the dermatologist pays close attention to the language in the contract. All contracts are generally negotiable; detrimental language in the contract often may be removed or changed. This article presents information to help prepare dermatologists to review and negotiate contracts.

The liability of medical directors for utilization review decisions.

Managed Care Organizations (MCOs) have turned to numerous cost-containment measures to combat rising healthcare costs. One of the most common is the use of utilization review to ascertain whether a recommended mode of treatment is "medically necessary." When the medical director of an MCO determines that care recommended by a patient's treating physician is not medically necessary and not eligible for coverage (and, as a result, potentially unattainable due to cost), the stage is set for litigation. In such situations, medical directors may become potentially liable for disciplinary action by their state medical licensing board as well as lawsuits for malpractice or negligence. However, plaintiffs wishing to recover damages for improper determinations of this nature or state boards trying to discipline these physicians, face the hurdles of the preemptive force of ERISA, and state doctrines to the effect that corporations (and, derivatively, their medical directors) cannot practice medicine and therefore cannot be liable for malpractice. Conflicting decisions and opinions make it impossible at the present time to have a settled expectation regarding the potential liability of medical directors in this context, although the law appears to be moving toward the treatment of utilization review as medical decisionmaking; therefore, it appears likely that the activities of medical directors increasingly will face state oversight--including the imposition of common law liability in appropriate situations.

Health Care Financing Administration--Medicare and Medicaid; utilization review. Proposed rule.

These regulations would revise utilization review procedures for hospitals that participate in the Medicare and Medicaid programs and establish procedures for facilities or programs that provide inpatient psychiatric services to Medicaid recipients under 21 years of age. They would establish standards for conducting review of the health care provided to patients eligible under the two programs, as required by sections 1861, 1902 and 1903 of the Social Security Act. These requirements would apply only to hospitals; proposed revisions of procedures for skilled nursing facilities (SNFs) and intermediate care facilities (ICFs) would be published later. The intent of the regulations is to ensure that services paid for under Medicare or Medicaid are medically necessary and appropriate.

Medicare program; Peer Review Organizations: revised scopes of work for Delaware, Missouri, Montana, Nebraska, New Jersey, Nevada, Oklahoma, Rhode Island, South Carolina, Washington, and Wyoming--HCFA. Final notice.

This notice describes requirements for the review activities of Utilization and Quality Control Peer Review Organizations (PROs) for the next contract cycle in the States listed above. Section 1153(h)(1) of the Social Security Act requires us to publish any new policy or procedure adopted by the Secretary that affects substantially the performance of PRO contract obligations at least 30 days before the date the policy or procedure is to be used. Specifically, this notice describes significant changes in the way in which cases will be selected for review and also describes continuing requirements. This notice also implements provisions of the Omnibus Budget Reconciliation Act of 1990 and announces the future direction of the PRO program.

Medicare and Medicaid programs; preadmission screening and annual resident review--HCFA. Final rule with comment period.

This rule sets forth State requirements for preadmission and annual review of individuals with mental illness or mental retardation who are applicants to or residents of nursing facilities that are certified for Medicaid. It also sets forth an appeals system for persons who may be transferred or discharged from facilities or who wish to dispute a determination made in the preadmission screening and annual review process. These provisions implement several provisions of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87), Public Law 100-203 and the Omnibus Budget Reconciliation Act of 1990 (OBRA '90), Public Law 101-508.

California's Wickline decision revisited.

In a recent California appellate decision, Wilson v. Blue Cross of Southern California, 222 Cal. App 3d 660, 271 Cal Rptr 876 (2d Dist., 1990), the court cut back on its earlier decision in Wickline v. State of California, 192 Cal. App. 3d 1630, 239 Cal Rptr 810 (2d Dist. 1986), which had provided substantial protection for third-party payers against liability for utilization review decisions. The Wilson decision not only limits Wickline to its particular facts, but also criticizes some of its rationale.

Utilization management, case management, and you.

Historically, most monitoring functions have been carried out by insurance companies. Monitoring costs was considered their fiduciary obligation to their customers. The exercise of this fiduciary obligation kept premiums low, while increasing or maintaining the benefit levels. Risk (the assumption of losses generated by services costing more than the income received from premiums) was assumed by the insurance company and eventually passed to the customer or the payer. Today, risk is being transferred more and more to the provider. This transfer was started by the creation of DRGs, the main purpose of which was to transfer risk from payers (insurance companies, employers, state and federal government, etc.) to provider health care organizations (physician groups, individual practitioners, hospitals, clinics, etc.).

Risk management in an IPA setting--Part I.

Over the past several years, HMO enrollment has grown the most in independent practice association (IPA) and network models. HMOs in general have expanded as a means to control the cost of health care. Key customers, including large employers and government agencies such as the Health Care Financing Administration (HCFA), require such control. IPA and network models retain a greater sense of choice on the part of participating physicians and patients than do closed-panel group- or staff-model programs. As physician and patient choice increases, however, the HMO's control over health care diminishes. Thus, customers require HMOs to manage health care. The HMO must market, develop delivery systems, meet regulatory requirements, and make profits. It must control both the quality and the cost of health care. Doing so without the level of control found in staff-model HMOs has created unique challenges for IPA HMO managers. IPA-model HMOs adapt quality improvement programs to this lesser level of control. Staff-model HMOs and hospitals closely link quality assurance to risk management. Programs designed to improve quality will naturally also reduce the risk of providing care below standards. This relationship is less clear in IPA- and network-model HMOs, in which the HMO does not provide the care. Thus, IPA-model quality improvement programs often do not address their risk management implications. This two-part article examines the differences between staff-model and IPA-model HMOs in liability and in ability to manage risk. In the first part, the nature of the risks is described. In the next issue of the journal, the management of those risks will be discussed.

Legal issues in accepting capitation.

The effort to reduce the cost of medical, hospital, and ancillary services increasingly focuses on shifting the financial risk for the cost of these services to those who provide them. Shifting arrangements include capitation for physicians classified as "primary care" physicians; capitation arrangements that include primary and specialty services; risk shifting to medical groups, IPAs, and other physician organizations; as well as the packaging of physician and hospital services on a "full risk," "per case," or other basis. Accepting financial risk for the cost of medical and other health care services, as well as the responsibility for managing the provision of services, may very well be the only remaining opportunity for providers to maximize reimbursement and maintain administrative and clinical self-direction. However, physicians must work with managed care organizations (MCOs) through negotiation of contracts and throughout the relationship to make sure: Unnecessary financial and legal risks to the MCO and physicians are eliminated. Risks that cannot be eliminated are apportioned between the MCO and physicians. All risks are managed in a coordinated fashion between the MCO and physicians.

Avoiding HMO liability for utilization review.

In this article, the author describes the potential liability of Health Maintenance Organizations for utilization review programs. Utilization review is used to determine whether certain medical treatment is necessary according to the standards of the HMO, and the HMO may decline to pay for treatments it deems unnecessary. If a doctor abstains from treatment because of this decision and the patient is harmed, the HMO may become the target of litigation. The author analyzes several recent cases and offers practical ideas for preventing and defending suits brought against HMO's for utilization review decisions.