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13 posts from May 2009

May 28, 2009

Health Wonk Review is up

Fellow Bostonian Tinker Ready hosts the current edition of Health Wonk Review at Boston Health News Her nod to The Boss reminds me that I'll inevitably be heading to the Jersey shore this summer.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

Retail Health Clinic Summit: Can we get there from here?

At one of the pre-summit workshops yesterday, Tom Charland (ex-MinuteClinic exec and now consultant) channeled Clay Christensen (Mr. Disruptive Innovation) for a while and laid it on the line: unless retail clinics find a way to beef up off-season volume for at least 5-6 years, they may be dead in the water.  In that time, if Christiansen is right, HSA/HDHPs will become much more prevalent than they are today -- prevalent enough so that retail clinics could safely opt out of health insurance plan provider networks and have a sufficient patient base to draw from.

In the interim, Tom and I agree that retail health clinics need to break out of current operating modes, particularly into chronic care / disease management.  In fact, I was quoted on this point towards the end of a thoughtful piece on retail health clinics in BNA's Health Care Policy Report last month.  Retail clinic providers (including one from Spain), other consultants, payor representatives, drug and device reps, urgent care center operators, and even the US Armed Forces (planning a pilot project foray into retail health clinics) all showed up for the Summit, which provided a mix of perspectives on challenges and opportunities facing this nascent industry.

Slides from my talk at the summit on the Massachusetts experience, and lessons for the future  -- especially the need to move into chronic care and to partner more effectively with health care systems -- are provided here for your viewing pleasure.  My work with all components of health care systems -- including physicians -- makes clear that these combinations have the potential to be very powerful, and makes equally clear that the groundwork must be laid carefully with physician partners and champions in order to ensure the success of such an undertaking.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 26, 2009

Grand Rounds is up at See First; next week's edition right here at HealthBlawg

This week's edition of Grand Rounds is up at Evan Falchuk's See First.  Welcome to the party, Evan. 

Next week's "June Is Busting Out All Over" edition will be right here at HealthBlawg.  Please write your post's URL on the back of a twenty-dollar bill and mail it to the address on my home page (apologies to Click and Clack) or send it to me via email at david AT harlowgroup DOT net with "Grand Rounds" or "Twenty Bucks" in the subject line.  Please include the post title, blog title and URL, and your name or nom de blog (or that of the author if not you) as well.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 24, 2009

FY 2010 IPPS: Federales sucker punch the hospital industry

CMS published the FY 2010 IPPS (hospital inpatient prospective payment system) rule and rates on Friday May 22.  I'll offer just some highlights of the 608-page monstrosity here, focusing on the short-term acute care portion; the long term acute care hospital (LTACH) rates are in here, too.

First and foremost: Acute care hospitals will enjoy just a 0.2% increase in DRG payments for the year beginning October 1, 2009.  The rule provides for a 2.1% adjustment for all hospitals reporting RHQPAPU measures (which is virtually everyone); 0.5% if not reporting.  The sucker punch: a 1.9% negative adjustment to adjust for the shift to the severity-adjusted MS-DRG system in FY 2008-09 and the concomitant attention to reporting, which the federales say resulted in higher reimbursements without a change in acuity.  There is a total 8.5% negative adjustment to be made which CMS is deferring so as not to whack the industry excessively just now.  Congress has come to the rescue once, reducing the cuts and deferring the day of reckoning, but that day has now come.  It remains to be seen whether Congress will seek to defeat or defer these cuts again (and again)
a la the SGR.  Comments are invited; the AHA and others are already steamed.

One bright spot: orthopedic MS-DRG codes are bucking the trend and see a more significant increase.

A note of caution for hospitals: Even though complete documentation and coding led to the negative adjustment, folks need to continue to do a good job of documentation and coding, since that's what the MS-DRG system is all about.

On the RHQDAPU front: the federales are taking baby steps towards automating the reporting process, testing the transmission system direct from hospital records to a central repository with three measures not currently used for payment incentives.

This year the proposal is to add two new measures to the 44 currently in use (for FY 2011) (see chart in linked Federal Register document, 74 FR 24171-72, pp. 93-94 of pdf) , and 69 additional measures are identified that might be used in the future (74 FR 24172-73, pdf pp. 94-95).  Also interesting is the fact that one measure is being taken off the list based on research tying IV beta blockers to elevated mortality risk in certain populations, and related practice guidelines evolution.  In addition, other measures may come off the list if they've "topped out" with near-universal compliance -- like a pneumonia oxygenation assessment measure.  Comments are invited on determining when to retire criteria and also on the criteria for establishing new criteria.  These criteria are significant, so I quote this section of the commentary in full:

In the FY 2009 IPPS proposed rule, we solicited comments on several considerations related to expanding and updating quality measures, including how to reduce the burden on the hospitals participating in the RHQDAPU program and which approaches to measurement and collection would be most useful while minimizing burden (73 FR 23653 through 23654). In the FY 2009 IPPS final rule, we responded to public comments we received on these issues (73 FR 48613 through 48616). We also stated that in future expansions and updates to the RHQDAPU program measure set, we would be taking into consideration several important goals. These goals include: (a) Expanding the types of measures beyond process of care measures to include an increased number of outcome measures, efficiency measures, and patients’ experience-of-care measures; (b) expanding the scope of hospital services to which the measures apply; (c) considering the burden on hospitals in collecting chart-abstracted data; (d) harmonizing the measures used in the RHQDAPU program with other CMS quality programs to align incentives and promote coordinated efforts to improve quality; (e) seeking to use measures based on alternative sources of data that do not require chart abstraction or that utilize data already being reported by many hospitals, such as data that hospitals report to clinical data registries, or all-payer claims data bases; and (f) weighing the relevance and utility of the measures compared to the burden on hospitals in submitting data under the RHQDAPU program. Specifically, we give priority to quality measures that assess performance on: (a) Conditions that result in the greatest mortality and morbidity in the Medicare population; (b) conditions that are high volume and high cost for the Medicare program; and (c) conditions for which wide cost and treatment variations have been reported, despite established clinical guidelines. We have used and continue to use these criteria to guide our decisions regarding what measures to add to the RHQDAPU program measure set.

The goals of the RHQDAPU articulated here bear close reading.  These are core values that CMS is seeking to refine further -- comments are welcome -- and it seems to me that these core values will continue to inform quality measurement and value based purchasing initiatives of the agency in the future.  The main problem I have with the approach taken to date (and I've been saying this for quite a while) is that the federales -- and other payors -- are asking providers to track too many indicators.  It is possible to track a small number of indicators that are predictive of other quality performance measures.  (Two key people who agree with this perspective are Don Berwick of the Institute for Healthcare Improvement and Leah Binder of the Leapfrog Group, each of whom I've had the opportunity to talk with about this issue, among other things.)  My other problems with the approach are that too little of the total payment is at stake (2%), and that the system is set up as a pay-for-reporting system, not a pay-for-performance system.     

No new hospital-acquired conditions (HACs) are being added to the no pay for never events rule this year.  A very significant fact was tucked away near the very end of the publication (74 FR 24669; pdf p. 591): The no pay for never events rule is only expected to save the federales $21-22 million a year, because most cases with HACs have other comorbidities that result in higher MS-DRG payments anyway.  Sounds to me like this is a rule crying out to be rewritten:  All the hoo-ha over hospital-acquired conditions and no pay for never events and the federales are saving just a measly $21 million a year???  Either tighten it up so that real savings can be achieved or toss it.

Update May 26, 2009: And while the hospitals are down, CMS is cutting indirect GME capital reimbursement to nil.  At least one state hospital association sees these changes as leading to layoffs and closures.

There are many more proposed changes and updates in this reg, but the last I'll touch on here is the EMTALA sanction waiver, which would essentially provide a 72-hour waiver of EMTALA (except for patient dumping based on source of payment) in case of implementation of a hospital disaster protocol.  There is, of course, a pandemic infectious disease exception (for all you swine flu eschatologists out there) extending the 72-hour waiver til the end of a declared public health emergency.

The comment period is open through June 30; a final rule is expected by the end of July, and new rules and rates will be effective October 1.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 22, 2009

Yeah, the GOP has a health reform plan, too

Surprise! The latest and greatest Republican health reform plan has tax credits in it to replace tax deductions for employment-based health insurance, has a great-sounding name -- The Patients' Choice Act, and details "core concepts" that (except for the whole libertarian tax credit thing) could've been lifted from any one of a number of Democratic plans.  (Kaiser Family Foundation has a good side-by-side comparison tool available detailing a bunch of proposals that are on the table.)  There's lots of elements of the Massachusetts plan in there, too -- a plan denounced by our former Republican governor while at home, and which he variously derided or took credit for while on the campaign trail, depending on his audience.  Go figure. 

An op-ed piece in the Wall Street Journal this week (penned by worthies of the Galen Institute and American Enterprise Institute) touting the GOP proposal runs a bit wide of the loyal opposition mark, really dialing up the anti-government rhetoric, and also engages in some magical thinking (e.g., employers who no longer have to pay for health insurance will pass the net savings along to employees in the form of higher wages). 

It's all about talking points, I suppose, since whatever odds one may lay on Baucus reporting out a bill that can pass (and, hey, he's been talking about revisiting tax-deductible health plans, too), the likelihood of the House Republican plan making great inroads are next to none.

Update 5/22/09: Baucus offers a gentlemanly thanks to the GOP representatives, saying he shares their goals but rejects their proposed means.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 18, 2009

Baucus and health care reform primer

Here's your reading assignment:

Today, the Senate Finance Committee released the third of three health care reform "description of policy options" papers.  The papers are available on the committee's web site:

Accompanying press releases with highlights are available here:

A brief comment period is open for the final policy options paper. 

See also Sen. Baucus' Call to Action white paper and related resources, and the Columbia Journalism Review Baucus Watch series.

Since the Senator plans to report out a health care reform bill within a month or so, looking over these resources would be a worthwhile exercise.

It will be interesting to see how the dance proceeds among the various parties: Congress, the myriad interest groups that have positioned themselves inside the big tent this time around, and the White House, which has taken at least two different approaches to the whole exercise: a Presidential directive to Congress to deliver something Obama can sign that is consistent with his broad health care platform, and closer staff contact meant to ensure that something workable actually gets crafted and passed, not only in the senate but in the House as well.

Much has been said in recent weeks about the public plan option, and whether it will go by the boards in order to appease vested interests.  Adding a public plan option to the Massachusetts Connector-like exchange is appealing, though, and it can be structured in a way that doesn't undercut private plans and send us directly into ... socialism.  

And finally, the elephant in the room is the question of how the dang thing will actually be financed.  The $2 trillion White House announcement and almost immediate backpedaling by the Administration's "partners" last week do not bode well, nor does last week's Washington Post article on the creative accounting used to come up with early estimates of savings linked to widespread EHR use ....  Eliminating or limiting the deduction for health benefits could help close the gap, and some EHR-related savings may be out there, but as they say: not bloody likely.

Read up and stay tuned.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 14, 2009

Dr. Ben Kruskal, Director of Infection Control at Harvard Medical Associates: Conversation with David Harlow about Swine Flu / H1N1

My conversation with Ben Kruskal, MD, PhD, HVMA Director of Infection Control, about swine flu / H1N1 continues. 

In today's installment we discussed incidence of new cases, their concentration among children, chances for emergence of a more virulent strain of flu, and closer coordination between large ambulatory practices such as Harvard Vanguard Medical Associates (which has 400,000 patients) and the state Department of Public Health. 

The audio file of our conversation runs about 10 minutes and is available for download/podcast.

Update 5/15/09: Read the linked transcript or the copy below. 

Our earlier conversation is available here.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

Interview of Ben Kruskal, MD, PhD, Director of Infection Control,
Harvard Vanguard Medical Associates, May 14, 2009

David Harlow:  Hi, this is David Harlow on HealthBlawg and I have with me today Dr. Ben Kruskal from Harvard Vanguard Medical Associates where he is Director of Infection Control.  We spoke a week or so ago about swine flu or the H1N1 virus, and I am eager to learn whether this week you see any change in the progression of this pandemic or epidemic and what sort of changes you see in its progression?  I looked at the numbers today, here in Massachusetts we’re up to about 133 confirmed cases as of this morning.  So, I'm curious to see if you see a progression or a trend in the past week or so?

Dr. Ben Kruskal:  Well it's pretty clear that the virus has, as predicted, started to spread pretty widely in the community and the number of confirmed cases being reported is clearly a pretty big underrepresentation of the real number of cases because we're not even attempting to test all cases.

David Harlow:  Okay, so these are just lab confirmed cases, is what you're saying?

Dr. Ben Kruskal:  Exactly.

David Harlow:  Okay and what was interesting to me in looking at the Department of Public Health's figures is that the majority of these cases are among school-aged children, and CDC said last week that it felt it was no longer necessary to close schools in the event of children being sick.  I am wondering if these numbers might cause us to reconsider that approach.

Dr. Ben Kruskal:  Well, I think what CDC said was not to not close the school at all, but rather not to close the school for a single case which is what the original advice was.  What they are now saying is that the school should only be closed if there is a significant cluster within the school, so I think they're still acting responsibly in the sense that if the school is clearly a focus of spread, that is the time to close things down.  If there are one or two cases that are well-contained, then the inconvenience to the large number of people would occur from closing the school isn’t worth it.

David Harlow:  Okay, fair enough.  And so I think it was in New York today or yesterday where a number of schools were closed.  There is a cluster of 50 cases in one of the schools, so that's consistent with what you are saying, and the CDC policy.

Dr. Ben Kruskal:  It is also very interesting to see that cases do seem to be concentrated among younger people and the explanation for that isn't clear.  I think the predominant speculation is that older people may have encountered strains that were related enough to afford them some immunity, whereas younger people have never seen a strain like this before.

David Harlow:  Interesting.  So you're referring to the swine flu that we had in the mid-70s?

Dr. Ben Kruskal:  Not necessarily that strain, but some other related strain at some point far enough back -- at least 20 years back -- so the young people who are the predominant population affected so far wouldn’t have had any exposure.

David Harlow:  And are those numbers in terms of age distribution consistent across other areas as far as you know, beyond Massachusetts?

Dr. Ben Kruskal:  It's a little hard to make good sense out of the numbers and areas that don’t have a lot of cases because the people who are being tested are very a skewed population, and probably not representative of all cases.  I think in the areas where many fewer cases are reported the predominance of adults is largely because they're looking at people with travel histories.

David Harlow:  Okay.  So how do you see this playing out over the next weeks and months as we get into the warmer weather, and how do you see this playing out next fall or next winter?

Dr. Ben Kruskal:  Well it's still very much up in the air.  The fact that there is as much transmission as there is, even in the relatively warm weather that we've been having in the last couple of weeks, is a little bit of a concerning sign to me that transmission may continue at a really, really high rate even through the summer.  So in terms of spread, it’s surprising that it’s still going on at the rate its going.  There is a concern based on some previous examples of novel strains that as the virus is transmitted from person to person, there may be selection for more virulent sub-strains and that the severity of disease may increase over time.  In some prior outbreaks, the virus has gone underground for the warm season and then re-emerged in a more virulent form in the fall, but I am somewhat concerned, seeing the level of the transmission we’re still sustaining now, that we may be possibly headed for more severe cases even sooner than the fall.

David Harlow:  So it likely will continue even through the warmer weather which will be unusual as I understand it.

Dr. Ben Kruskal:  Absolutely, but again the degree of spread that we're seeing now is pretty unusual as well.

David Harlow:  But thus far at least, it doesn't seem to be that virulent an illness?

Dr. Ben Kruskal:  No, thank goodness, it has been quite mild in the vast majority of cases.

David Harlow:  So, I’m interested to hear how you are dealing with this on behalf of your medical group in dealing with the large population [of 400,000 patients] that you are responsible for?  What are you and your team doing on a daily or weekly basis in order to help manage this?

Dr. Ben Kruskal:  Well, we started from the very beginning and we're fortunate enough to have a plan in place which we were able to adapt quickly to the current situation.  We focus on providing information for our patients that’s been crafted centrally but we’re not relying every on every individual doctor and nurse to create the message themselves.  We had the help of specialists in communications and we have also been working hard to get timely, consistent and accurate information out to our staff in order to equip them to deal with patients’ questions and concerns.  The patient anxiety clearly has been much, much bigger than the actual number of cases, so I think done a reasonably good job of giving people these tools and giving our patients information directly as well.  In addition, we focus very heavily on protecting our staff, knowing that it's hard to come to work if you think you’re going to be infected with something nasty and we’re taking precautions that may be excessive given the relatively mild nature of the illness, but again being conservative and making sure that our staff feel safe coming to work.

David Harlow:  I also understand there's has been a national stockpile of antiviral medication being distributed, has that been distributed to your group as well or is that going just to pharmacies?

Dr. Ben Kruskal:  It actually was initially meant to be distributed only to hospitals and we were active in lobbying the Department of Public Health to include the ambulatory health care organizations as well and succeeded in getting a significant chunk of the distribution for large practices such as Harvard Vanguard.

David Harlow:  So have you been coordinating with the State Department of Public Health along other lines as well?

Dr. Ben Kruskal:  Yes.  We’ve been talking to them for quite some time about the role of ambulatory care providers in provision of care in pandemics and other disasters and I think we’ve really pushed their attention in the direction of what ambulatory care can provide in a disaster like that, and we have extensive discussions which I think have helped to inform the way they are working with other ambulatory groups as well.

David Harlow:  That's encouraging and it makes a lot of sense, since so much care that was in the hospitals traditionally has really been pushed to the ambulatory setting.

Dr. Ben Kruskal:  Right, and enabling the primary care providers to continue to function during an outbreak has several advantages.  One is that by virtue of the existing relationship that we have with our patients we may be able to convince them of things that they might otherwise feel too nervous to hear from a provider they never met before,  so we can help them comply with public health directives in a way that's much harder for an unknown person to do.  In addition, we can take the load of the worried well and the mildly ill off of the hospital, so they can focus their attention on the things that only they can do, which is caring for the most severely ill.

David Harlow:  That makes a lot of sense.  Thank you for your time.  This is David Harlow on HealthBlawg.  I’ve been speaking with Dr. Ben Kruskal, the Director of Infection Control of Harvard Vanguard Medical Associates here in Boston, Massachusetts.  Thank you again.

Dr. Ben Kruskal:  Thanks David.

Health Wonk Review is up

Have a helping or two of wonkish goodness at the Health Wonk Review smorgasbord, tastefully hosted this week by Julie Ferguson at Workers' Comp Insider.  And, not to cause indigestion or anything, but ... did you hear the one about the $2 trillion in savings ... ?

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 12, 2009

Health care industry stalwarts step up to the plate to help Obama save money (Yawn)

AHA, AMA, AHIP, SEIU, AdvaMed and PhARMA told Obama yesterday that over the next ten years they stand ready to "do our part to achieve your Administration's goal of decreasing by 1.5 percentage points the annual healthcare spending growth rate -- saving $2 trillion or more."  The details include nostrums that appear in the President's budget proposal as well.

Setting aside for a moment the creative accounting built into that pledge, why don't they start by pledging to eliminate the $700 billion or so a year of waste in the system?  It is a commonplace that 1/3 of the costs incurred in the U.S. health care system are unnecessary.

Frankly, these groups are destined to decrease health care spending by even more, given today's Medicare Trustees' report (the doomsday clock gives the Hospital Trust Fund about 8 years) -- so 1.5% a year is bupkes.

It also bears noting that a careful reading of the letter yields a pledge to "do our part" to achieve the federales' goal -- not a pledge to reach the $2 trillion mark on their own. 

While they doth protest otherwise, these groups are likely eager to forestall the public plan option (see one exposition of what that could mean in an earlier HealthBlawg post) and perhaps believe that by being inside the big tent this time around, instead of throwing stones (to mix a metaphor) a la Harry and Louise ads in the HillaryCare era, they have a better shot at steering things their way.

As Paul Levy wondered in his post at Running a Hospital, are they trying to sell us the Brooklyn Bridge?

Update May 13, 2009:  Bob Laszewski sums up the issues with yesterday's fantasy health care reform exercise nicely.

Update May 18, 2009:  The alphabet soup of organizations standing behind Obama at the White House last week have now been distancing themselves from his message, which went a bit further than the groups' actual commitments (as noted above).  Not to be the bearer of wet blankets or anything, but the announcement now starts to look like a backfiring White House media event ginned up while not-ready-for-prime-time in order to deflect attacks on the unfinanceability of the Obama health reform plan.

This Great Leap Forward approach by industry is also exemplified by GE's healthymagination gobbledegook, rolled out last week with similar fanfare.  The proposal: all GE's health-related businesses will roll out product and service upgrades that will cut costs while increasing access and improving quality.  While a $6 billion commitment to health care, addressing cost, access and quality is generally a good thing, GE was a little short on details.  Also, monopolists and near-monopolists don't talk about lowering prices unless something is really wrong.  See doomsday clock, above.  (For more cynicism, see John Moore's take on GE as well.)

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

May 11, 2009

Blawg Review #211

President Barack Obama has completed his first 100 days in office, and while we passed that marker a week or so ago, now it's time for a Blawg Review roundup and analysis of all that has happened in, or grown out of, that time (as blogged about in the past week, of course).  If we were to ask FOX News about Obama's first 100 days, all we'd hear about is Socialism.  (Those FOX anchors and analysts seem to be playing a 21st Century neocon version of "Hi, Bob.")  When the President spoke about the first 100 days himself, he reflected on issues faced to date -- swine flu (I mean H1N1), the federal budget, foreign policy (involving Iraq, Pakistan and Afghanistan), Gitmo -- and issues coming up in the near future: health care reform, new rules of the road for Wall Street, credit card consumer protection, federal budget savings, and federal contracting reform.  All that, and questions on the auto industry, torture, Arlen Specter and abortion, followed by a poetic reflection (prompted by a reporter's question) on what made him feel surprised, troubled, enchanted and humbled in his first 100 days in office. 

At the White House correspondents' dinner this past weekend, Obama noted that he's ready for his term to continue: "I believe my next hundred days will be so successful that I will be able to complete them in 72 days," he said. "And on my 73rd day, I will rest."  

Now, while POTUS is just getting his sea legs, the HealthBlawger is a seasoned pro (well, at hosting Blawg Review, anyway: see Blawg Review #88, Blawg Review #129 and Blawg Review #154).  As the ship of state steams on, we will now delve into some of the issues touched on by Obama in his recent address, and other legal and policy issues of note that are at the forefront of concern in the blawgiverse this past week.

But first, since this is Blawg Review #211:  One quick PSA for the "other" 211 (no, not that kind of PSA): Dial 2-1-1 for human services referrals and resources.

And now we're off to the races, looking at the news roughly by Cabinet secretariat, and Cabinet-rank agencies, in order of succession to the Presidency.

Vice President of the United States

The what-he-meant-to-say crew snapped into action after Joe Biden overreacted on the swine flu front.  And then from the frying pan into the fire: this linguistic "teachable moment" was replaced by a moment with Barack and Joe at a burger joint in Arlington, VA that had been cited for health code violations, though we can't tell how recently from the linked post on Bill Marler's Marler Blog.  Now, the Veep is putting together a short list of potential nominees for the Supreme Court seat vacated by Justice Souter.  (More on that below.) 

Department of State

State's getting a lawyer, Harold Koh (Dean of Yale Law School), though opponents of his nomination have been doing the equivalent of yelling "socialism" on FOX.  Anupam Chander works to set the record straight.  (By the way, Harold's brother Howard, former commissioner of the Massachusetts Department of Public Health -- my old stomping grounds -- is also headed to Washington, nominated to be assistant HHS secretary for health.)

Department of the Treasury

From The Conglomerate comes a call to hold off on restructuring the SEC until after the markets have recovered a bit more.  Meanwhile, Professor Bainbridge highlights some of the finer points underpinning insider trading regulation.  James Maul, at Mauled Again, supports proposed tax law changes that would eliminate some corporate/international tax boondoggles.  And Larry Ribstein unburdens himself on the banks' recent stress test at Ideoblog, in one of a series of "Dismantling Capitalism" posts.
 
Department of Defense

The "don't ask, don't tell" era may be coming to an end, according to Mother Jones; the question is whether Obama will insist on waiting for legislative change or if he will go the quicker route and just go ahead and sign an executive order suspending enforcement of the rule.

Department of Justice

While the Supremes aren't within the DOJ, there's certainly a close relationship, and the vacancy in the highest court in the land has prompted all sorts of speculation, grousing and counter-grousing.  This includes Scott Greenfield's review of Sonia Sotomayor's former law clerks' comments, made anonymously (cowardly, in his book) and otherwise at Simple Justice.  While playing the appointment guessing game, consider Jack Balkin's proposal for revamping the appointment system at Balkinization: a new Justice appointed every two years, with the nine most junior doing the heavy lifting, and senior justices hearing individual justice matters and stepping in among The Nine when a junior justice cannot hear a case.

Also tangentially related to DOJ is the same-sex marriage question, being taken up in state courtrooms and legislatures across the nation.  My Constitutional Law professor, Ira Lupu (Hi, Chip!) wrote this week at Concurring Opinions that political compromise through legislation is the way to go when it comes to recognition of same-sex marriage.  He notes with disapproval the Massachusetts rule that all adoption agencies treat heterosexual and gay couples equally in their placement processes, which led Catholic Charities to turn in its adoption agency license.

Department of the Interior

Interior has been getting mixed reviews on its handling of endangered species matters recently. Learn more at the joint UCBerkeley/UCLA Legal Planet blog.

Department of Commerce

We rely on commercial shipping for transport of goods around the world, but U.S. law seems to restrict merchant marine vessels to high pressure water hoses in the fight against pirates, according to Export Law Blog.
 
Department of Labor

Here we veer off-topic for a bit.  With Chrysler headed for ownership in part by the company that used to be run by the fashionable Italian guy who never buttoned down his button-down shirt, let's focus the labor segment of this review on the legal labor pool -- see Adrian Dayton's post on Generation Y at Marketing Strategy and the Law.  In the interests of lessening the labor required of attorneys, ABA TECHSHOW runs a program offering online resources for easing the trials of practice, called 60 Sites in 60 Minutes, featured this week on Jim Calloway's Law Practice Tips Blog.  I had the pleasure of meeting Jim at another iteration of this program in Boston, when the ABA cosponsored a TECHSHOW Roadshow with the Massachsuetts Bar Association Law Practice Management Section (I serve on the Section Council with a dedicated crew of colleagues).  Another set of law practice tips is presented by Matthew Homann of The [Non]billable Hour as a collection of tweets in e-book form.  Speaking of twitter, a number of the blawgers featured in this week's edition of Blawg Review also tweet.  Check out directories at Legal Birds and LexTweet, and follow @healthblawg on twitter For a glimpse of a tweetstream in and about a conference, accompanied by a first step towards an analysis of said tweetstream, consider the Health 2.0 example.
 
Department of Health and Human Services

So Secretary Kathleen Sebelius has finally been confirmed, after a week or so of questions regarding whether the country's response to the flu pandemic could have been better organized had her post and a couple dozen others been filled already.  Over at the Becker-Posner Blog, there are point-counterpoint posts on the economics of the flu pandemic, and Posner considers, among other things, the prospect of weaponization of flu virus. 

Moving quickly past swine flu -- and the obligatory joke: "They said we'd have a black president when pigs fly.  Well, swine flu!" (groan) -- There is a whole heck of a lot going on these days in the health care arena.  I hope readers will indulge me in a closer examination of some of these issues, as this is my "home turf." 

One of the "hot" debates in the past week or so has been over two key phrases in ARRA (the recovery act) pertaining to electronic health records ("EHRs"): "meaningful use" and "certified EHR."  These terms are used in the HITECH Act part of ARRA in laying out the requirements for a $19 billion bonanza: physicians and hospitals are eligible to participate in a net pool of $19 billion to cover the cost of implementing EHRs, so long as they are engaged in "meaningful use" of "certified EHRs."  The National Committee on Vital and Health Statistics held two days of hearings on "meaningful use" and "certified EHRs"; transcripts and audio recordings are available on line.  John Moore at Chilmark Research pulls it all together in his post, Making "Meaningful Use" Well ... Meaningful.

If all of our health records end up on line, then more and more of us will be concerned about hackers breaking in, misusing personal information, and potentially holding our records for ransom.  This is exactly what happened recently in Virginia.  Bob Coffield lays it all out at his Health Care Law Blog, and I posted my thoughts on lessons learned from the Virginia data security breach here at HealthBlawg.

Obama has a lot riding on health reform.  At the end of the White House health care summit a couple months ago, in a political masterstroke, he rose above the fray and told Congressional leaders that they knew what he was looking for in a health reform bill, and he would be looking to them to send him something he could sign.  In the time since that heady moment, when everyone was all gung ho for health reform -- from Ted Kennedy to Karen Ignani (her managed care industry association sponsored the Harry and Louise ads that helped tank HillaryCare, but now seems to want to be at the table rather than throwing stones from outside) -- prospects for progress have dimmed, principally due to the question of how we will pay for all this health care goodness.  If Congress can't put aside political expediency and be intellectually honest about this question, it just won't happen.  See two of Bob Laszewski's recent posts on the subject at his excellent Health Care Policy and Marketplace Review here and here.    

Office of Management & Budget

OMB Director Peter Orszag blogs at the OMB Blog (in his spare time); when the White House released its budget proposal last week, Orszag focused on the $17 billion in cuts -- programs that pay for things like cleaning up abandoned mines that have already been cleaned up, an early childhood program called Even Start that apparently doesn't do as good a job as Head Start, etc.


United States Trade Representative

Obama has had to walk a fine line on trade through the primaries and general elections, but as he's hitting his stride (when not preoccupied with the crisis du jour) he's been coming down in favor of free trade.  See the International Economic Law and Policy Blog for more on this topic.  The USTR is named Ronald Kirk -- a name I nearly mistook for Rahsaan Roland Kirk, a tremendous multi-instrumentalist famous for multi-tasking, and from whom his near-doppelganger may learn a few things.
 

United States Ambassador to the United Nations

While the United Nations is often a disappointing organization, the United Federation of Planets seems to have its heart in the right place.  Coming full circle to the start of this post, The Volokh Conspiracy considers whether Star Trek's Federation is socialist.  (That blog's title always seemed to have a Klingon ring to it, anyway.)

There are a handful of other cabinet-level agencies without blawg posts from the past week at hand to illustrate their relationship to today's theme (and please excuse the free-associative nature of the Labor section, above), so I will simply list them here and invite readers to add additional first hundred days issues relating to their jurisdictions in the comments section: 

Between Interior and Commerce in the line of succession comes the Department of Agriculture; between HHS and OMB come:

Department of Housing and Urban Development
Department of Transportation

Department of Energy
  (I can' t resist a quick reference to Donklephant which, true to its name, seems to find more common ground than most between Dems and the GOP on energy policy.
Department of Education
Department of Veterans Affairs
Department of Homeland Security
Council of Economic Advisers
Environmental Protection Agency

White House Chief of Staff

Finally, we come to the chief of staff.  I like Rahm Emanuel's comment that the President has an open hand but a firm handshake.  Sort of fits the gentleman-who-takes-no-prisoners image.  But he does have quite a mouth on him.  At the correspondents' dinner Saturday night, Obama observed that Rahm Emanuel always has a hard time on Mother's Day: "He's not used to saying the word 'day' after 'mother.'"

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting