by Holly Hayes Marc Bard, chief innovation office in Navigant’s health care practice, and co-author of the book “Accountable Care Organizations, Your Guide to Strategy, Design, and Implementation” made six predictions about health care reform last week. The predictions are listed in the blog CommonHealth Reform and Reality and are in response to some specific changes in Massachusetts health care reform. Two predictions include: More tension in the system In today’s’ environment, for the most part, providers of care are contractually pitted against payers of care. They’re a little like dogs and cats. They’ve never gotten along terribly well for obvious reasons, and they generally didn’t mind battling each other. Now, what is being proposed in Massachusetts creates somewhat of a zero-sum game, doctor against doctor and doctors against hospitals; and that’s a less comfortable battle. And, it’s potentially going to be even less comfortable because with the ACO, there’s going to have to be more support for primary care, and if you’re operating with a fixed global payment budget, that means that the high-end providers, the high-end physicians and hospitals, are going to take the greatest haircut. That’s reality. Massachusetts medical culture will change to be more team-oriented. Eastern Massachusetts health care is physician-focused rather than system-focused. We focus on doctors, we train them, we teach them, we develop them, rather than teams. And we’re going to have to move to a much more team-oriented approach, which means we’ll have to start really valuing the role of care coordinators and other disciplines rather than putting the burden on the doctors. So I think what we’ll also see is that it’s going to affect some academic pursuits: We’re going to have to move to training more primary care doctors, and that is not something that Boston historically has focused on. In a previous post, we cited the report “Unmet Needs:Teaching Physicians to Provide Safe Patient Care” issued by the Lucian Leape Institute at the NPSF. The report concludes that “[U.S.] medical schools are not doing an adequate job of facilitating student understanding of basic knowledge and the development of skills required for the provision of safe patient care.” The report’s 12 recommendations center on three main themes: Medical schools and teaching hospitals need to create learning cultures that emphasize patient safety, model professionalism, encourage transparency, and enhance collaborative behavior. They should have zero tolerance policies for egregious disrespectful or abusive behavior. Medical schools should teach patient safety as a basic science and ensure that students develop interpersonal and communication skills through experiences working in teams with nursing, pharmacy, and other professional students. Medical schools and teaching hospitals need to launch intensive faculty development programs to enable all faculty to acquire sufficient patient safety knowledge and to develop the interpersonal skills in teamwork and collaboration that permit them to function effectively as teachers and role models for students. What are your thoughts about how we can enhance medical school training to prepare physicians for the collaboration needed for health care reform and to be partners in successful Accountable Care Organizations (ACOs)? We welcome your thoughts. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.

The United States Court of Appeals for the Fifth Circuit held that an employee pension plan falls within the scope of the Railway Labor Act (“RLA”) and is subject to its mandatory arbitration procedures. In Ballew v. Cont’l Airlines, Inc., No. 11-20279, (5th Cir. Jan. 31, 2012) plaintiffs are former Continental Airlines pilots (“Retirees”) who filed a class action against Continental Airlines under ERISA § 502(a)(1)(B), alleging Continental breached the terms of Retirees’ pension plan. The district court dismissed Retirees’ claims for lack of jurisdiction, holding that the RLA applied to Retirees and that the RLA gives exclusive jurisdiction over their contract interpretation claim to the administrative resolution process. Retirees appealed. The issues presented to the Fifth Circuit are: Whether the RLA applies to Retirees as “employees.” The court concluded that the RLA applied despite the claimants’ status as retirees. The court supported its decision by citing Pennsylvania Railroad Co. v. Day, 360 U.S. 548, 79 S. Ct. 1322, 3 L. Ed. 2d 1422 (1959), “[[a]ll the considerations of legislative meaning and policy which have compelled the conclusion that an active employee must submit his claims to the Board, and may not resort to the courts in the first instance, are the same when the employee has retired and seeks compensation for work performed while he remained on active service.” Whether, despite the RLA’s exclusive arbitration procedures, Retirees may seek judicial review of adverse Retirement Board determinations. The court explained that parties to a Collective Bargaining Agreement (“CBA”) could either provide for RLA dispute resolution or could exclude certain disputes from the RLA’s mandates and provide for judicial review under ERISA, but could not provide for systems board review under the RLA followed by judicial review under ERISA. Accordingly, the Fifth Circuit affirmed the district court’s judgment. Technorati Tags: ADR, law, arbitration

According to the Baylor Lariat, Baylor University has filed a complaint (Case No. 1429318) with the National Arbitration Forum over the ownership of the domain BaylorGirls.xxx. Note that the National Arbitration Forum does not publish the cases on its website until a decision has been reached. Read more about this domain dispute here. Stay tuned.  

Last week, the U.S. Supreme Court reversed and remanded orders of the Supreme Court of Appeals of West Virginia which held unenforceable all predispute arbitration agreements that apply to claims alleging personal injury or wrongful death against nursing homes. See Marmet Health Care Center, Inc., et al. v. Clayton Brown, et al., Case Nos. 11–391 and 11–394, 565 U. S. ____ (Feb. 21, 2012). The underlying litigation involves three negligence lawsuits brought by family members of patients who have died in West Virginia nursing homes. The Supreme Court of Appeals of West Virginia consolidated the cases and held that “as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence, and using a personal injury attorney ASK4SAM is the best on these cases.” The U.S. Supreme Court stated that “[t]he FAA provides that a ‘written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’” The Court also noted that the relevant statute does not include exceptions for personal injury or wrongful death claims, since for cases as accidental injuries or animal attacks such as family dogs, the use of a dog bite defense is useful to work cases like this. Citing AT&T v. Concepcion, the Court added: “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” Accordingly, the Court remanded for the West Virginia court to consider whether, absent that general public policy, the arbitration clauses in the cases are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA. Technorati Tags: ADR, law, arbitration