Federal Times Blogs

Seen as offensive, “defective” label for the mentally ill lives on in the federal code

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Whatever the federal government’s pluses and minuses, it is usually pretty good at avoiding language that will offend a particular group’s sensibilities.

So some Federal Register readers may find it jarring to find two agencies using the term, “mental defective,” in notices set for publication this week. The term, considered useless and derogatory by advocates for the mentally ill, surfaces in a Justice Department filing seeking to clarify definitions of people prohibited from “receiving, possessing, shipping or transporting firearms” under the 1968 Gun Control Act.

“The Department recognizes that the term ‘mental defective’ is outdated, but it is included in the statute and cannot be amended by regulation,” the notice of proposed rulemaking says.

The label also turns up in a Health and Human Services Department notice on the background check system for would-be gun buyers. Both can be found on a website that provides an advance look at Federal Register notices. They are scheduled for publication Tuesday.

The issue is not new; at a May 2007 congressional hearing, a top official with the National Alliance on Mental Illness called use of “mental defective” stigmatizing and incompatible with modern terminology employed in diagnosing and treating the mentally ill.

“We have received emails and other communications in the last few weeks from people who are incredulous that such a term would still be used in federal law,” Ronald Honberg, the alliance’s director of policy and legal affairs, said in prepared testimony at the hearing.

However defective the language may be, it remains on the federal lawbooks almost seven years later.

The two notices can be found here: https://www.federalregister.gov/public-inspection.


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Is the administration moving to include transgender care in federal health insurance coverage?

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The short answer? Maybe.

Dive into the longer but far more satisfying answer below…

While some company and local government health plans cover care for transgender policy-holders, the Federal government does not and specifically excludes transition-related care from coverage.

Transition-related care may include hormone replacement therapy, mental health services, and sexual reassignment surgery (SRS).  The costs of this care can easily reach into the tens of thousands of dollars, putting it beyond the reach of many who need it.

But some recent and almost unnoticeable steps by federal agencies could mean transgender care coverage federal employees and many others.

Many people believe the inner workings of the government are needlessly complex or hopelessly laborious. And in many cases they are.

So follow me into the workings of the government so I can show you.

On Dec. 2 the departmental appeals board at the Health and Human Services Department decided that the “National Coverage Determination” (basically what is covered under Medicare and Medicaid and other programs) excluding sexual reassignment surgery specifically from Medicare coverage needed to be revisited.

The coverage decision has been in place since May 6, 1981 and  the original determination stated:

“Transsexual surgery for sex reassignment of transsexuals is controversial. Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental;. Moreover there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered.”

The complaint that sparked this action noted that the language was terribly out of date and had no real bearing on modern day medicine. It seems HHS is inclined to agree.

But what does this have to do with Federal employees?  In addition to administering Medicare, HHS is also responsible for enforcement of section 1557 of the Affordable Care Act, which covers “any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title [of the ACA].”

If you read that and thought the scope of the inquiry was extensive you are right. It covers a wide range of programs, including at least Medicare, Medicaid and the Federal Employee Health Benefits Program.

On an HHS Q and A on Section 1557 of the Affordable Care Act – which prohibits discrimination on the bases of “race, color, national origin, sex, age, or disability in certain health programs and activities” the agency answered a list of self-imposed questions, including:

“Does this mean that transition related surgery is required to be covered by health insurers?”

The answer was a simple “no.”

But the Q and A has since vanished from the site. (Update: I want to make clear the Q and A I link to is a web archive version.)

At the same time the agency issued a request for information on the same section (1557) seekinginformation on a variety of issues to better understand individuals’ experiences with discrimination in health programs or activities and covered entities’ experiences in complying with Federal civil rights laws.”

The agency specifically requested examples of covered discrimination on the basis of sex, ‘including discrimination on the basis of gender identity, sex stereotyping, or pregnancy.”

While the rulemaking is far from complete these are signs the administration is open to changing how it treats its transgender employees.

This could be a huge step in getting transgender care covered under the health plans available to millions of people across the country.

I have reached out to the Office of Personnel Management and to HHS for comment. I will update if I hear anything.

Association of Government Accountants honors agency reporting

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Twenty agencies big and small were recently noted for top-notch financial and performance reporting by the Association of Government Accountants.

The “Certificate of Excellence in Accountability Reporting” (CEAR)  singles out “high-quality Performance and Accountability Reports (PARs) and Annual Financial Reports (AFRs) that effectively illustrate and assess financial and program performance, accomplishments and challenges, cost and accountability,” the accountants association said in a news release. The association also spotlights the teams of dedicated federal professionals who (often unsung) put the reports together.

“Given the fiscal status of the United States government and the public’s perceptions about government fiscal accountability and transparency, the achievement of this year’s CEAR recipients is even more significant,” AGA Executive Director Relmond Van Daniker said in the release. The agencies being honored “truly represent a select group within the government financial management community.”

Here’s a rundown of the winners:

Architect of the Capitol
Federal Aviation Administration
Federal Housing Finance Agency
Federal Trade Commission
Office of Financial Stability (Treasury Department)
Peace Corps
Commodity Futures Trading Commission
Education Department
Housing and Urban Development Department
Interior Department
Labor Department
State Department
Treasury Department
Government Accountability Office
Nuclear Regulatory Commission
Patent and Trademark Office
Securities and Exchange Commission
Small Business Administration
Social Security Administration

Also honored at the May 22 National Press Club ceremony were 10 agencies that showed “specific points of excellence” within their fiscal year 2012 PARs. Known as ‘Best in Class’ awards, the recipients included:

Health and Human Services Department: Best Summary of Management and Performance Challenges by the Inspector General
Labor Department: Most Complete Schedule of Spending
Peace Corps: Most Comprehensive and Candid Presentation of Forward-Looking Information
FTC: Best Agency Head Message
HUD: Best Presentation of a Financial Management Systems Framework
Interior: Best High-Level Discussion of Performance
Capitol Architect: Best Analysis of an Agency’s Financial Statements
FAA: Most Representative of Editorial Excellence
Department of Homeland Security: Best Improper Payment and Recovery Act Reporting
Central Intelligence Agency: Best Introduction


SILVER SCREEN FEDS: ‘The Walking Dead,’ ‘Yogi Bear’

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Not the friendliest of greetings from CDC Dr. Edwin Jenner. (Scott Garfield/Courtesy of AMC)

This week on Silver Screen Feds, we examine two federal employees who couldn’t be any more different: Dr. Edwin Jenner, the doomed researcher at the Centers for Disease Control and Prevention in the zombie apocalypse show “The Walking Dead,” and Ranger Smith, the hapless National Park Service ranger who can’t stop Yogi Bear from stealing them pic-a-nic baskets.

BEST FEDS: Dr. Edwin Jenner, CDC, “The Walking Dead” (Stephen Losey)

Edwin Jenner holds a unique place in the pantheon of TV and movie feds: The last civil servant on Earth.

Towards the end of the first season of “The Walking Dead,” a desperate band of survivors makes their way to the CDC headquarters in Atlanta, hoping to find refuge. What they don’t know is that Jenner is the only person left at CDC. He continues to singlehandedly study the brain tissue of a zombie — dubbed TS-19 — desperately hoping to find a cure. But the exhausted Jenner knocks over a vial inside an airlocked laboratory, triggering its automatic decontamination procedures. Jenner escapes the lab, but can do nothing but watch helplessly as the laboratory engulfs all the remaining samples in flames, destroying his work and all possibility of finding a cure.

Read the rest of this entry »

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White House touting reduction in improper payments

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There’s some apparent good news coming from the White House this afternoon on the improper payment front, according to a news advisory.

At 2:30 p.m., Office of Management and Budget Director Jack Lew and three other top administration figures are holding a conference call “to discuss the administration’s progress cutting wasteful improper payments by nearly $18 billion’’ the advisory says. FedLine had asked about this last week and was told the data was being finalized. Presumably these are figures for fiscal 2011 versus fiscal 2010.

Not clear is whether the nearly $18 billion figure is a cut in absolute terms or represents something more nebulous. In fiscal 2010, you may recall, improper payments jumped to about $125 billion from $110 billion in fiscal 2009 because of higher spending levels overall, according to OMB. But because the overall improper payment rate dipped from 5.65 percent to 5.49 percent, the administration could say its efforts saved $3.8 billion that would have otherwise mistakenly gone out the door.

Also participating in this afternoon’s call are Health and Human Services Secretary Kathleen Sebelius, Education Secretary Arne Duncan and Agriculture Department Deputy Secretary Kathleen Merrigan. Why them? The reductions are fueled by decreases in payment errors in Medicare, Medicaid, college Pell Grants and food stamps, according to the advisory.

We’ll keep you posted.

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Medical malpractice records restored to public, with reporting rules

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The federal Health Resources and Services Administration (HRSA) has reopened public access to information on malpractice settlements and discipline taken against poor  performing doctors.

But under its new data use agreement, publicly available information from the National Practitioner Data Bank (NPDB) cannot be reposted or used in combination with other information to identify a doctor.

HRSA took down its online public file of the NPDB Sept. 1, after a Kansas City Star reporter used the information to track down the identity of a doctor who had a long record of malpractice cases against him but was never disciplined by the state.

Now, if HRSA learns that data has been used to identify a doctor, it will ask that the data be returned, HRSA Administrator Mary Wakefield said in a statement.

The information can be used in statistical analysis and reporting, Wakefield said, such as “an article that talks about trends in malpractice or disciplinary actions that includes unidentified data to support the conclusions.”

Sen. Chuck Grassley,  ranking member of the Senate Judiciary Committee, pushed HRSA to restore public access since the database was taken down. He previously asked Wakefield to explain her agency’s response to the Kansas City Star reporter, submit all communication between HRSA officials and the doctor that was identified in the story, and outline what steps they are taking to restore public access to the data bank.

HRSA’s new restrictions on the use of public information within the NPDB is “overreaching” and “restricts the use of the information much more than the law specifies,” Grassley, R-Iowa, said in a news release.

“This agency needs to remember that half of all health care dollars in the United States comes from taxpayers, so the interpretation of the law ought to be for public benefit,” he said. “One complaint shouldn’t dictate public access to federally collected data for 300 million people.” 

It’s also unclear how HRSA would monitor and take back misused data, Grassley said.  He said he is seeking legal opinions on HRSA’s interpretation of the law.

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Medical malpractice records removed from public view

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The ranking member of the Senate Judiciary Committee is pushing the federal Health Resources and Services Administration (HRSA) to reopen public access to information on malpractice settlements and discipline taken against poor  performing doctors.

HRSA took down its online public file of the National Practitioner Data Bank (NPBD) Sept. 1, after a Kansas City Starreporter used the publicly available information to track down the identity of a doctor who had a long record of malpractice cases against him but was never disciplined by the state.

“Shutting down public access to the data bank undermines the critical mission of identifying inefficiencies within our health care system – particularly at the expense of Medicare and Medicaid beneficiaries,” Sen. Chuck Grassley, ranking member of the Senate Judiciary Committee, said in a letter Friday to HRSA’s administrator Mary Wakefield.  “More transparency serves the public interest. Generally speaking, except in cases of national security, the public’s business ought to be public.”

Information from the data bank is intended to be public as long as it does not identify particular health care entities or practitioners, Grassley said in the letter. And yet HRSA threatened the reporter, Alan Bavley, with civil monetary penalties for “republication of information obtained from the NPDB.”

Grassley asked Wakefield to explain her agency’s response to Bavley, submit all communication between HRSA officials and the doctor that was identified in Bavley’s story, and outline what steps they are taking to restore public access to the data bank.

The data bank site says HRSA plans to restore public access as quickly as possible. HRSA has previously said the process of further removing identifiable information from the database could take up to six months, Grassley said.

In the meantime, reporters and researchers can submit requests for data, which are subject to review.

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HHS launches healthIT.gov

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Health and Human Services last week launched a new website aimed at educating providers and patients on the benefits and role of health information technology in delivering better care.

HealthIT.gov ”is designed to invite active participation and make complex subjects relatable,” said Peter Garrett, with HHS’ Office of the National Coordinator for Health Information Technology, which created the website. ”It lets personal stories fuel the national movement toward adoption of EHRs [electronic health records]. It puts the “I” in Health IT.”

Patients can find information about their privacy rights, talking points about health care to discuss with their doctors and stories from other patients. Healthcare professionals can view details on how to transition to electronic health records and learn how other doctors are using health IT.

The announcement coincides with new proposed rules to strengthen patient’s access to their health information using health IT, specifically laboratory results. The proposed rule, drafted by the Centers for Medicare & Medicaid Services, HHS’ Office for Civil Rights and the Centers for Disease Control and Prevention, would allow patients to access their test results directly from the lab upon request.

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Disclosure rule for federal researchers gets diluted

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Institutions can wait for written requests to disclose federally-funded researchers’ financial ties to pharmaceutical companies and other corporate interests, according to a final rule issued by the Health and Human Services Department Thursday.

This is a change from the proposed rule brought by the agency in May 2010, which would have required institutions to post information about conflicts of interest on a publically available website.

The final rule requires research institutions to determine if a researcher’s financial ties or interest in an outside company could bias or present a conflict of interest with federally funded research. It would apply to HHS’s National Institutes of Health, which received $32 billion in the President’s proposed 2012 budget. More than 80 percent of that is dedicated for research.  

The Office of Management and Budget was reviewing the rule before its final issuance.  A source close to the review told Nature magazine that an OMB official had pushed for the removal of the website requirement. Sen. Chuck Grassley has asked the Office of Management and Budget for internal communications that could reveal why the requirement was limited and by whom.

In his former seat on the Senate Finance Committee, Grassley, R-Iowa, found instances where researchers were receiving money from the federal government to study drugs from companies to which they also had financial ties. The written request option is a barrier that institutions can hide behind if they don’t want to readily disclose information, he said in a statement.

“This is a missed opportunity to inject transparency where it’s really needed,” said Grassley, now ranking member of the Senate Judiciary Committee. “With less public scrutiny than we could have had, we’ll lose a valuable layer of oversight.”

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Senator pushes transparency in federal health research

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Sen. Chuck Grassley asked the Office of Management and Budget this week for internal communications that could show who is trying to limit a rule that would require federally-funded health researchers to disclose their corporate ties.

A recent article in Nature magazine said that OMB, which is reviewing the proposal, is gutting the rule of the requirement that researchers’ outside financial interests be posted on a publicly available website, instead allowing institutions to choose their own disclosure methods.

That will likely to make it much harder for members of the public to find these details, Ned Feder, a senior staff scientist with the Project on Government Oversight, told Nature. 

The rule, proposed by the Health and Human Services Department in May 2010, would require research institutions to determine potential conflicts of interest grant by grant, such as whether the doctor owns shares in a company that could bias his or her federally funded research.   

The rule would apply to HHS’s National Institutes of Health, which received $32 billion in the President’s proposed 2012 budget. More than 80 percent of that is dedicated for research.  

In his former seat on the Senate Finance Committee, Grassley, R-Iowa, found instances where researchers were receiving money from the federal government to study drugs from companies to which they also had financial ties.

Grassley, now ranking member of the Senate Judiciary Committee, said in his Aug. 4 letter that removing the public posting requirement “flies in the face of President Obama’s call for more transparency in the government.” 

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