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Rep. Stephen F. Lynch, Chairman of the House Subcommittee on Federal Workforce, Postal Service, and the District of Columbia, introduced legislation last Thursday designed to strengthen federal oversight of the prescription drug benefits available to federal employees through the Federal Employees Health Benefits Program (FEHBP). The bill - H.R. 4489 - is called the "FEHBP Prescription Drug Integrity, Transparency, and Cost Savings Act."

Specifically, the FEHBP Prescription Drug Integrity, Transparency, and Cost Savings Act provides the Office of Personnel Management (OPM) greater oversight authority of the FEHBP's prescription drug contracting and pricing methods in order to better ensure that federal workers are receiving the best benefits at the best price. Lynch says that among the strong oversight provisions included in the legislation is a requirement that Pharmacy Benefit Managers (PBMs), who currently contract with individual insurance plans to provide FEHBP prescription drug benefits, return 99% of all rebates, market share incentives, and other monies received from pharmaceutical manufacturers for FEHBP business. In addition, the legislation would prohibit "drug switching" without prior physican approval, impose new disclosure and transparency requirements on PBMs in line with industry trends, and cap prescription drug prices paid by the FEHBP at the amount of the Average Manufacture Price (AMP).

"In the midst of rising health care costs and a national debate on how best to reduce health care costs, it's important that we ensure that the FEHBP is providing our federal employees with the best value for their prescriptions," said Lynch. "Through strong oversight provisions that allow for alternative prescription drug benefit contracting and pricing for the FEHBP, my legislation will serve to enhance accountability and transparency relating to the FEHBP prescription drug benefit. Also, the FEHBP Prescription Drug Integrity, Transparency, and Cost Savings Act will safeguard against the potential waste, fraud, and abuse of taxpayer dollars, and most importantly, better ensure that our federal workers and retirees are receiving safe, high-quality, and low-cost prescription drugs."

Lynch reports that the bill has received the support of several key FEHBP stakeholders, including Change to Win, a six million-member partnership of labor organizations, including the International Brotherhood of Teamsters, the Service Employees International Union, and the United Food and Commercial Workers International Union.

"Employers across the country have seen huge benefits from adopting transparent, accountable PBM contracts," said Anna Burger, chair of Change to Win. "The federal government should be at the forefront of implementing these cost-saving measures, and the bill introduced today by Representative Lynch is an important step in this direction. The bill will help ensure the federal government and its employees get a fair deal on a crucial part of health care coverage."

The bill has been referred to the House Committee on Oversight and Government Reform.

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OmniGov Training Institute is offering a special opportunity for you to attend FMA's Management Training Seminar titled, "Dynamically Leading the Government of Today Into Tomorrow."

Don't miss this opportunity to learn more about FMA and join John Berry, Director of OPM, and industry experts for a dynamic managers' training seminar.

Non-members who attend will receive a FREE 1-year FMA membership!

For more information, and to sign up, go to www.fedmanagers.org, click on "Events," and select "FMA's 72nd National Convention."

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The U.S. Supreme Court soon will be deciding whether government doctors should be held liable for alleged unconstitutional care.

Last Friday, the American Civil Liberties Union filed a friend-of-the-court brief with the nation's highest court arguing that the estate of an immigration detainee who died after he developed penile cancer that went untreated while he was in government custody should be allowed to sue the individual Public Health Service officials charged with his care for violating his constitutional rights. The amicus brief was filed in support of the family of Francisco Castaneda, a Salvadoran who died in February 2008 at age 36 after he was denied a biopsy for a lesion that developed on his penis while he was detained at an immigration detention center in San Diego, California. The ACLU reports that a government physician charged with Castaneda's care has said in sworn testimony that she knew a biopsy was the only way to determine whether Castaneda had cancer. She allegedly failed, however, to arrange for him to have the test.

"The death of Francisco Castaneda was the result of a denial of medical care so shocking that a federal judge said it, if proven at trial, should be held up to law students as conduct for which the word ‘cruel' is an understatement," said Gabriel Eber, staff attorney with the ACLU National Prison Project. "Both the conduct alleged - and the government's written policy of denying detainees necessary medical treatment - are patently unconstitutional and, therefore, are in need of a constitutional remedy."

The medical personnel who were responsible for providing proper medical care to Castaneda were officers of the U.S. Public Health Service assigned through Immigration and Customs Enforcement's (ICE) Division of Immigration Health Services (DIHS). The ACLU says that while the federal government admitted in April 2008 that its negligence was responsible for Castaneda's death, the government is claiming that, under federal law, individual Public Health Service officials are immunized against lawsuits alleging that they failed to provide medical care that meets constitutional minimums.

The ACLU brief argues that holding individual Public Health Service officials accountable for their unconstitutional misconduct is a vital way to provide the deterrence and incentive for greater oversight and reform that are necessary to help prevent future tragedies like the pain, suffering and death of Castaneda. The brief also argues that without the ability to hold individual Public Health Service officials accountable for constitutional violations, victims and their families have no way of meaningfully addressing the allegedly cruel conduct inflicted upon them. Additionally, the brief contends that the ability to generate pressure from within DIHS to reform policies that unconstitutionally restrict detainee medical care would be severely inhibited.

The case is Hui v. Castaneda, Supreme Court of the United States, No. 08-1529.

We'll let you know what happens.

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The week's Case Law Update in FEDmanager underscores the unpredictability of federal employee liability and reinforces the need for federal managers to give serious consideration to professional liability insurance such as that offered by FEDmanager sponsor FEDS.

The underlying practical issue for federal employees presented by the Case Law Update is whether a federal employee pays out of his or her pocket to victims of negligence for mistakes made on the job. Much of the time, federal employees face no such liability because the Federal Tort Claims Act transfers liability to the government. Constitutional torts are the exception. Usually, a constitutional tort allegation comes up in law enforcement, but expansions of the concept have occurred to cover other federal employees. The current case pending before the Supreme Court related to medical malpractice shows a tendency to expand the concept beyond law enforcement. A few years ago, a California jury held that three Agriculture Department meat inspectors had violated a meat packing company's constitutional rights. The verdict later was reversed by an appeals court. Another case that recently made it to the Supreme Court held in favor of an Interior Department federal manager on a claim that the manager had violated the rights of a contractor employee by seeking her dismissal. In that Supreme Court decision, the manager escaped liability on a legal technicality.

The uncertainty and the enormity of being the federal employee on the wrong side of a constitutional tort allegation is reason enough for professional liability protection. But other reasons exist as well. Most policies cover administrative legal fees up to $200,000 that are related to disciplinary actions or investigations related to the job. Also, some criminal investigations or charges are covered up to $100,000. Federal managers, supervisors and law enforcement are entitled to a 50% reimbursement of the premium.

For further information, check out the articles on this subject in the news room at www.shawbransford.com.