SCOTUS order to stay executions doesn’t change anything

shutterstock_lethal-injectionThe Supreme Court of the United States stay order blocking three pending executions in Oklahoma, handed down Jan. 28, doesn’t actually change anything, said Phillip Murrah Director and one of the firm’s founders, Robert N. Sheets.

While there is much interest and coverage of the motion, no decision has been made that will change how death sentences are carried out – other than a mandate to remain in place for the time being.

While the occurrence is quite interesting, it is simply an order to halt executions until the highest court of the land has a chance to hear arguments and make a decision.

From The Supreme Court of the United States on Jan 28, 2015: Application (14A796) granted by the Court. Respondents’ application for stays of execution of sentences of death presented to Justice Sotomayor and by her referred to the Court is granted and it is hereby ordered that petitioners’ executions using midazolam are stayed pending final disposition of this case.

Wednesday’s order doesn’t address the death penalty. The State of Oklahoma is still able to execute condemned prisoners by any other means previously deemed constitutional, Sheets noted. The Stay also doesn’t make a determination about the controversial decision to use the drug midazolam as lethal injection agent during the execution process. It doesn’t determine anything about constituent ingredients. It doesn’t address process or propriety. It doesn’t make any kind of judgment, one way or the other.

What happened here in Oklahoma is simple – Oklahoma attorney general Scott Pruitt asked earlier this week for the stay, according to a report by The Associated Press:

“Rather than stop the executions himself, Oklahoma Attorney General Scott Pruitt took the unusual step of asking the justices for a stay. Oklahoma wants the right to resume executions if it finds a different suitable drug.  Pruitt said in a statement: “It is important that we act in order to best serve the interests of the victims of these horrific crimes and the state’s obligation to ensure justice in each and every case. The families of the victims in these three cases have waited a combined 48 years for the sentences of these heinous crimes to be carried out.”

The United State Supreme Court, defense attorneys for the condemned inmates and the Oklahoma Attorney General agreed that the state should wait on these executions until final disposition of the case. The executions are put on hold until the Court can hear Richard E. Glossip v. Kevin J. Gross.  Richard Glossip was the next inmate scheduled to be put to death

SCOTUS scrutiny: The drug and how it is administered

The Supreme Court will hear Glossip v. Gross in April and issue a decision in the summer. The focus of the case is the drug, midazolam, and whether it causes pain and suffering in the inmate. The drug is part of a drug combination used in the state’s lethal injection process. Last year, Oklahoma received worldwide attention after an execution using the same drug when terribly wrong.

During the execution process, midazolam (Midazolam Hydrochloride) is administered to the inmate, first, as a sedative. That injection, according to The New York Times, “was to be followed by injections of vecuronium bromide, a paralyzing agent that stops breathing, and then potassium chloride, which stops the heart.”

Health Law Oklahoma attorney, Mary Holloway Richard, a pioneer in healthcare law who has practiced in the area of clinical research and regulatory law for many years, said that the drug, itself, isn’t necessarily the problem. Rather, how and under what conditions it’s administered could be more at issue.

“To eliminate some of the mystique, this is the drug commonly known, and used, as Versed,” she clarified. “This drug is used in many venues and even for many different types of patients, including pediatric patients.”

A significant issue is raised by the exact recipe of the drug combination and the amount of Versed used, she added. “I keep seeing that it must be titrated properly.”

In other words, the dosage amount and duration of administration is very important to successful effect. Oklahoma has a three-drug protocol.

Also implicated is the manner in which the drug is administered. After the Clayton Lockett execution problems, Oklahoma released a report identifying insufficient training of those administering the drug and communication between prison and support staff, as well as a lack of contingency planning on the part of the Department of Public Safety.  The report also points to difficulties in starting the IV in Mr. Lockett.

More info: http://www.deathpenaltyinfo.org/state-lethal-injection

 

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Healthcare cost-cutting trend ties money to results

By Mary Holloway Richard

healthcare-shutterstock-02The trend toward decreasing costs in healthcare has seized upon value-based care – tying physician compensation to performance and outcome measures. These measures are also being used in contract negotiations with third party payors and healthcare plans.

Counsel for institutional and non-institutional providers are at the table providing advice about a number of important contractual terms and their ramifications including appropriate and measurable metrics for calculating bonuses and penalties and, if shared savings are at issue, how they should be split. For those who have been involved in negotiations of traditional fee-for-service contracts, this will seem like a fundamental change. It may also seem like a change that narrows the potential for disputes.

However, numerous issues will continue to be important to providers. For example:

  • Are the metrics used as incentives or penalties?
  • Are the selected benchmarks easily measurable and attainable?
  • Do they raise regulatory issues such as potentially impacting volume in an unacceptable way or spawn any other results that could be construed to be anticompetitive?

While these questions have yet to be answered by Oklahoma courts, we can look to decisions from other states and consider ourselves forewarned as to the nuances and potential pitfalls in negotiating and drafting these terms.

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The future for hospitals

By Mary Holloway Richard, Of Counsel

doctorIn a recent article in Modern Healthcare, Beth Kutscher identifies a rosier outlook for propriety hospitals than for not-for-profit facilities.

Some of those proprietaries are investor-owned chains, and an important part of their secret of financial health is their access to and reliance upon greater options for marketing services, economies of scale, and other cost saving programs.

Financially positive trends have come on the wings of the Affordable Care Act’s elevated patient volumes, better payor mix and declining expenses associated with bad debts. The proprietaries are concerned with stock prices and earnings and, like a family preparing for continued hard times, they actively pursue all possible ways to decrease expenses, including refinancing higher interest debt.

In largely rural states like Oklahoma, efforts to keep community hospitals alive include shopping for buyers and affiliating with stable hospital systems. However, rural hospitals owned by proprietaries, and even hospitals owned by not-for profit systems, are being taken off the block awaiting a more attractive market.

It is true that we witnessed the acquisition by Community Health Systems, one of the largest publicly-traded companies in the country, of Health Management Associates last year. But even so, CHS may now be eschewing large acquisitions and mergers in favor of other alternatives for financial stabilization.

In healthcare as in other industries, the proprietary sector offers important motivation for the not-for-profits.

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Responding to Ebola

By Mary Holloway Richard

Guest Column in The Journal Record, Published Oct. 15, 2014

shutterstock_210544051-1Incidence of Ebola on American soil allows for review of legal underpinnings of the public health response to “catastrophic health emergencies.” This term means, for our purposes, occurrence of imminent threat of an illness or health condition that is believed to be caused by the appearance of an infectious agent that poses a high probability of a large number of deaths in the affected population or widespread exposure to the infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population (63 O.S. §6104).

The federal government’s rapid response derives its power from the Commerce Clause of the U.S. Constitution (42 U.S.C.A. §264, Section 361 of the Public Health Service Act). The secretary of the Department of Health and Human Services is authorized to take measures to prevent the spread of threat of disease from other countries to the U.S. and between states. Borders are being monitored more stringently. States and tribes have the political power to detail those within their borders in an effort to contain such a threat. Police power functions include isolation-quarantine, access to and use of private health information, closure, lockdown, curfews, and appropriation and destruction of property, including pets and other animals. Those powers are derived from the state’s right to take action against individuals for the good of the people at large.

Oklahoma State Health Department regulations provide for isolation and quarantine including proper due process for affected people (OAC 310:521-7-6). On Oct. 10, the Centers for Medicare and Medicaid Services issued a memorandum to state survey agency directors (the state Department of Health in Oklahoma) to strongly urge hospitals to fully implement recent Centers for Disease Control policies for Ebola, including hospital evaluation and preparedness checklists and algorithms to evaluate patients returning from countries affected by the disease.

Emerging legal issues include privacy rights, provider and volunteer liability, due process and Fourth Amendment protections for mandatory testing and screening of citizens, licensure and scope of practice issues for noninstitutional health services providers giving aid, myriad informed consent, right to refuse treatment, and social distancing and remote handling of citizens including the effect of Americans with Disabilities Act protections.

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The Role of Telemedicine in Meeting the Behavioral Health Needs of Oklahomans and Attendant Legal Issues

Click here to view the publication in full: “The Role of Telemedicine in Meeting the Behavioral Health Needs of Oklahomans and Attendant Legal Issues” (Oct 4, 2014)

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