BULKY DOCUMENTS
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`(exceeds 300 pages)
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`Proceeding]Serial No:
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`I S’8“</'2
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`nus Z6 '97 15:32 Fe unsme
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`715 see 2nsn TU nurn BRRDLEY
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`Robert P. Main
`
`President and CEO
`
`Csxrza son
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`Fuxcncu~c.»J.
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`/\SSi55MENT
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`H BUDFALD
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`usmua, NY
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`£521-&‘3007
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`6-"829 - 10:76
`Fix:
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`5-829-toko
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`Siskin Hospital for Physical Rehabilitation
`One Siskin Plaza
`
`Chattanooga, TN 37403
`
`Thank you for your note of July 25, 1997 expressing your concerns
`as Chair of the American Hospital Association Section for Long-
`Term Care and Rehabilitation Hospitals and Programs and the
`Medical Steering Committee of the American Rehabilitation
`Association. The issue is that of having an opportunity to
`evaluate the FIM~FR3 system that is described in the RAND report
`that has not yet been released.
`
`A_little background review is necessary. UDSmr”‘was approached by
`HCEA.in 1994 with the request to use data from the Unsmr database
`to evaluate the potential for using the FIM-FRGS (length of stay
`version) as a basis for a PPS- Dr. Margaret Stineman had
`developed the FIM~FRGs in collaboration with UDSmr. UDSmr is an
`academically based, non~profit organizational division of the
`University at Buffalo Foundation, Inc. Its charge is to maintain
`uniformity with respect to measurement of disability_and
`rehabilitation outcomes. Fees charged to the subscribing
`organizations support Uasmr. It acts as a fiduciary agent with
`respect to data submitted to it and maintains a confidential
`relationship with the subscribers.
`In order to comply with HCFA's
`request, permission was obtained from each facility whose data
`are included in the transmission to HCFA.
`
`In the meantime, a license agreement to HCFA, which is equally
`binding upon the agency that HCFA selected to perform the
`analyses (in this case, RAND) was carefully developed to provide
`HCEA with the access it needed to be successful in its-analysis.
`All parties signed the agreement.
`In the spirit of that
`.
`agreement. UDSmr shared with RAND its technologies that are used
`G.
`to provide
`reporting system that has integrity. We were able to
`do so because the terns of the agreement protect
`the intellectual
`property rights that reside with UDSmr. Incidentally, ARA was
`fully informed during development of the agreements.
`-
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`UBF1056
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`HUU Z6 '97 16332 FR UDSMR
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`716 829 2388 TD DRUID BRRDLEY
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`P.8S/B5
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`UDSmr holds the copyrights for FIM—FRGs and any derivative works.
`The agreement states, that only if HCFA elects to use the system,
`then HCEA has a license for implementation. During 1996 and 1997,
`HCFA received complete reports from RAND. However, a draft report
`that was proposed for general circulation did not meet the
`conditions that had been specified in the contracts. Prior to
`release of an official version of the report,
`these issues were
`brought to HCEA’s attention. HCFA asked that UDSmr propose
`remedies. These negotiations are underway.
`
`Your main concern is that facilities have access to the
`information included in the RAND report and that they have the
`opportunity to test the effects of a FIM-FRG based PPS prior to
`implementation. We expect that a satisfactory resolution is near
`at hand. I am unable to give you more details at this time but I
`will be in touch as soon as it is possible to relate further
`progress.
`
`Sincerely,
`
`€fl~/
`
`Carl V. Granger,
`Professor, Rehabilitation Medicine
`Director, CEAR & UDSmr
`
`.
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`UBF1057
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`*% TUTQL PQEE.BS **
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`
`
`H O D G S
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`“ A I
`
`S
`WOODS St
`GO ODYEARLLP
`ATTORNEYS AT LAW
`
`Joe W; Fleming, II, Esq.
`Professional Corporation
`Third Floor
`
`1606 20th street, N.W.
`Washington, D.C.
`20009
`
`Dear Mr. Fleming:
`
`Re:
`
`UDSMR
`
`Tricia T. Semmelhack
`Partner
`DIRECI‘. 716-8484 249
`
`1800 One M811" Plaza
`Buffalo, NY
`715-8554000
`FAX: 716-849—O349 M&T
`FAX: 716-852-5185 GU.\RA.N'l'Y
`
`Albany
`Boca Ratan
`Buflala
`New York
`Rochester
`Mississauga
`
`August 15, 1997
`
`to UDSMR of Buffalo, New York.
`We are outside counsel
`We understand you are outside counsel
`to the ARA and are very
`knowledgeable about matters pertaining to rehabilitation research
`and facilities.
`‘
`
`The reason for this letter is that we have just made a
`detailed examination of the "13x.com/rehabase" web site,
`including the $6,900 introductory price tag for services and the
`instruction to send checks to Joe W. Fleming, II, P.C.
`On the
`plus side, your RehaBase program seems to be a valuable tool for
`the rehab industry. However,
`the web site fails to acknowledge
`UDSMR'S copyrights and trademarks in the FIM” measuring
`instruments, data and reports, and is publishing and using
`confidential and proprietary material from the draft Rand Report
`in serious violation of UDSMR'S rights.
`
`Rather than becoming distracted with legal arguments,
`we believe the best way to resolve these issues is for your P.C.
`to enter into an appropriate license on an expedited basis. Not
`only would the license resolve our client's infringement
`concerns, it would permit beneficial use of the FIM data and
`FIM/FRGS while ensuring continued protection of UDSMm’s rights.
`
`I have also recently
`By way of further background,
`to Carl V. Granger, M.D.
`reviewed your letter of July 23, 1997,
`and the outline of your remarks.at the.July 13+14 conference on
`Medical Rehabilitation- As I am sure you know, Dr. Granger has
`always been dedicated to performance of the highest levels of
`research and to pursuit of policies and programs that are most
`beneficial to the rehabilitation industry. Thus, your comments
`regarding the final Rand Report and UDSMR'S opposition to its
`unconditional release seem unnecessarily harsh.
`
`Furthermore, your web site suggests your RehaBase
`service requires issuance of that Report as a prerequisite to
`
`UBF1058
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`A Registered Limited Liability Pannerxhip Including Professional Association:
`
`

`
`HODGSON RUSS ANDREWS WOODS St GOO_DYEAR....p
`
`Joe W. Fleming, II
`August 15, 1997
`Page 2
`
`commencement of its commercial operations- Thus, it appears you
`have not been entirely candid about
`the reasons for your public
`criticism of UDSwVs position.
`
`More importantly, what needs to be understood is that
`UDSMR has, by contract,
`the exclusive worldwide right and license
`to use the proprietary ideas, concepts,
`information, software,
`and software components which comprise or relate to the FRGS
`("FRG Rights")
`in connection with the development, sale,
`distribution or use of any commercial product which incorporates
`any part of said FRG Rights.
`It also bears important obligations
`to the licensor with respect to any such development, sale,
`distribution or use. These rights and obligations are derived
`not only from the Copyright Act but also from various contracts
`which UDSMR signed with, among others,
`the University of
`Pennsylvania, HCFA, and the Rand Corporation.
`
`Under the circumstances, UDSMR is not in a position to
`permit broad public disclosure and use of this information.
`Third parties,
`including the RehaBase web site, also are not at
`liberty to make use of any FRGS derived from FIM data without
`having a license and paying appropriate royalties-
`
`in order for UDSMR'S subscribing facilities to
`Finally,
`take advantage of the services offered by your RehaBase program,
`their licenses require them to obtain UDSMR'S consent before
`exporting the full range of data you have requested. Having just
`sponsored the creation of a valuable software program yourself,
`I
`am sure you can understand the importance of protecting the
`intellectual property rights associated with that program.
`
`the
`UDSMR is prepared to offer Joe W. Fleming, II, P.C.
`.
`necessary license. We look forward to discussing same at your
`earliest convenience.
`
`Very truly yours,
`
`
`rid.»
`Tricia T. Semmelhack
`
`/J'C
`
`CORPORATE:l37373 was l36I30_l (2XIE_l)
`
`UBF1059
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`
`Joe W. Fleming, II
`August 15, 1997
`Page 3
`
`bcc: Kathleen Dann
`
`David V. Bradley
`Dr. Carl V. Granger
`James Phillips
`
`UBF1060
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`JOE W. FLEMING, II
`PIOFESSIONAI COIPOIAYION
`Tmxn I-‘Loon
`
`1606 20m Srnssr, N.W.
`WASHINGTON, D.C. 20009
`
`August 20, I997
`
`TEL: (202) 872-1033
`FAX1 (202) 833-9168
`
`1)
`
`JOE W. Fu-:Mmo, II
`ATTORNEYATLAW
`SAMUEL P. Fuzmma
`FINANCIAL ANALYST
`
`Tricia T. Semmelhack
`Hodgson, Russ, Andrews,
`Woods & Goodyear
`1800 One M&T Plaza
`Buffalo, NY 14203-2391
`
`Dear Ms. Semmelhack:
`
`This is to acknowledge your letter of August 15, 1997 regarding UDSMR.
`
`First, I wish to assure you of my high regard for Dr. Granger and his long and
`substantial contributions to the field of rehabilitation. If anything in my letter to him of
`July 23, 1997 was taken to be a criticism of him or his work, I regret that. It was not so
`intended. I wrote to Carl to provide him with information on I-ICFA’s work to develop
`an instrument to be used to collect data and design a post—acute payment system. You
`
`The only public forum in which I have voiced these concerns was at the UDS
`conference in July. Some time ago Dr. Granger asked me to speak to that meeting and I
`agreed to do so. This was, in my view, a personal favor to him.
`I am retiring as soon as I
`can wind up cases I have in various pipelines and spending a day in Buffalo has no
`inherent appeal. As it became apparent that UDS is intent on keeping the RAND report
`from the public, I called Carl to tell him that it might be best for me toopt out of his
`conference, because if I did speak I would have to tell the assemblage that UDS is
`facilitating the political death of FRGS as the basis for a Medicare PPS. He asked that I
`come anyway. I did, and did describe this situation to the audience. My letter of July 23
`followed to provide him with documentary evidence of HCFA going off in a different
`direction.
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`UBF1061
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`\\
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`If HCFA adopts a different patient classification system it will certainly will be
`harmful to UDS. Hospitals won’t maintain two such systems. So, my message was not
`intended to damage UDS, but rather to try to keep it and the FIM at the core of a
`Medicare PPS. Any impression to the contrary is in error.
`
`Now, with regard to RehaBase, this is an analytic system my son developed to
`provide analyses of cost to rehab hospitals and units relative to a PPS. As recently as my
`trip to Buffalo in July Jim Phillips told me that UDS does not intend to provide any such
`service to its subscribers, so I have not seen our very limited effort to be in any way
`competitive with UDS.
`In fact, we have encouraged several hospitals to become UDS
`subscribers. All of the data used by RehaBase comes from individual hospitals. Nothing
`is drawn from the UDS database provided to RAND, to which we have no access. The
`RehaBase process is designed to use data from hospitals, providing an analysis that could
`be done by the hospital itself if it were disposed to invest the time and effort. This
`project was stimulated by requests from rehab hospitals and units for cost analysis,
`particularly pertaining to FRGs. It was begun on the supposition that the RAND report
`would be forthcoming on a timely basis and be available to all concerned. This, of
`course, has not happened. If FRGS are going down the tubes there won't be much
`interest in the service anyway. We may decide to refund the few deposits we have
`received for this service and forget the whole thing.
`
`Since we have come this far, however, it would be helpful to understand the
`substance and cost of the license you suggest.
`I am unclear what would be licensed. If
`the RAND report is issued it will be in the public domain. If it is not or comes out
`without the information needed to classify patients I don’t know what good a license will
`do, because no one, including UDS, will be able to represent its contents to interested
`parties. What sort of license will finesse this reality? I will be interested in your thoughts
`on this point.
`
`I believe that all of the information on the RehaBase web page pertaining to the
`RAND report is drawn from either Margaret Stineman’s original work or public
`presentations on the RAND study made by the principal investigator. As you may know
`Dr. Carter has made several such presentations at HCFA and at meetings of the American
`Rehabilitation Association. Please let us know of any items you feel do not reflect such
`public information.
`-
`
`In the interests of amicably addressing these issue-s I will let-you-r comment about ~
`my candor pass.
`I can assure you that my assessment of the prospects for a PPS payment
`system and the significance of release of the RAND report relative thereto have nothing
`to do with analyzing costs for a few hospitals. FRGs got started because I and others
`organized a fund raising effort in 1990 to finance Margaret Stineman’s initial work. My
`personal and professional interest in seeking a rational basis for Medicare payment
`reflects 25 years of working with and for rehab facilities.
`I am very sorry if Carl Granger
`sees my involvement in this matter as driven by self-interest. That, to use your term,
`seems “harsh.”
`
`UBF1062
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`I would also urge you to
`I would be pleased to discuss these matters with you.
`make an independent assessment of the prospects for FRGs as a basis for Medicare
`payment and the dynamics of the issue within HCFA.
`In protecting its perceived “rights”
`your client risks encouraging HCFA to adopt a different patient classification system. If
`that happens, FRGS are history.
`
`As noted, I am phasing out this year to engage in less frustrating matters. Getting
`nasty letters after making a trip to Buffalo as a favor to Dr. Granger and providing him
`with information not otherwise available to him certainly confirms that determination.
`Incidentally, when I was in Buffalo I noticed that your client had reprinted several pieces
`I wrote for the American Rehab newsletter and distributed these to the attendees, without
`
`permission. Should I be flattered or retain counsel?
`
`I look forward to hearing from you.
`
`Sincerely,
`
`arm \
`
`Joe W. Fleming, II
`
`cc: Carl Granger
`
`UBF1063
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`’
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`§
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`_SEP 16 ’9'? 12:43 FF! LIDSMR
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`“P16 829 2888 TC} DQUID BRQDLEY
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`—————————~———————-——
`SISKJNHOSPITAL
`FOR Ptrrstctt F.tltA1ttrn=a10N”
`
`September 4. 1997
`
`Robert P. Main. FACHF,
`President :4&_CE()m_y Clark
`Buffalo General Hospital
`100 High Street
`Buffalo. NY 14203-1154
`
`Dear Dr. Clark:
`
`I am writing to you as Chair of the American Hospital Association Section for Long«'I'erm Care
`and Rehabilitation Hospitals and Programs and the Medical Steering Committee of the American
`Rehabilitation Association.
`
`The recently enacted Balanced Budget Act of 1997 provides for implementzuion of a
`rehabilitation prospective payment systcrn (RPPSl on October l. 2000. The RPPS will be
`phased in over at tvi/o—ye:tr period. Over the next few months..l-lCFA will make critical decisions
`regarding the type of prospemive payment system it will adopt and it is important that the
`relmbililatiou field play a major role in this process. The limetttblefor implernentation of a RPPS
`set by the Congress is based on HCF/Vs rep:-esentatiniis as to the time required to implement a
`system based on ftmctionztl related groups (FRGS). A payment system based on FRGS has been
`designed for HCFA by the RAND Corporation. The final RAND Report has been at HCFA for
`several months. but has not been made available to the public because of opposition from the
`Uniforrn Data System CUDS).
`-
`
`RAND utilized data from UDS (with pennirsion of individual UDS subscriber hospitals) in
`designing the RPPS. The RAND Report does not contain any (lat.-i identifying individual
`facilities. It does contain case weights and other payment v:tri:tbies. which siiottid be available to
`the field in order to assess the system it proposed. UDS is zippzirently opposed to ielensc of the
`full report in hopes of retaining some sort of commerciztl advantage in the RPPS. The more likely
`effect, unfortunately for this field, is that is will encourage HCI-‘A to use some other system much
`less oriented to the needs of rehabilitation patients and providers. such as resource utilization
`groups (RUG'S Ill).
`
`Your facility granted permission for its UDS data to be supplied to HCFA for use by RAND.
`Enclosed is a letter I have written to Dr. Granger at UDS about this matter.
`I think it would be
`helpful if you and others involved in the inzttter would express your interest to Dr. Granger in
`having the RAND Report. in full. released In the public. Please feel free to use my letter in
`helping you compose your own letter. If you have ruiy questions. please feel free to ctinutcl me.
`
`Sinccrt.-ly.
`
`or/a/M
`
`
`Robert P. Main
`
`(lne Siskin i’l:2Z:i. Chzittzmooga. Tennessee 37-‘HR
`
`’l‘t-lephonc (423) 634-1210
`
`UBF1 064
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`

`
`SEP 16 "37 12143 FRI UDS-MR
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`716 829 2888 TD DQUID BRRDLEY
`r
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`P.D3/B3
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`SISKINHOSPEAI.
`Eoi2PH2mL RH’.AElIl.'-XIRTJN‘
`
`Robcrtl’. Main. EACHE
`President and CEO
`
`[my 25, 1997
`
`Carl V. Granger, MD.
`The Bufiido General Hospital
`Neuroscience Center
`
`100 High Street
`Bufi'alo, New York 14203
`
`'
`
`Dear Dr. Granger:
`
`‘
`
`V
`
`-.
`
`D
`
`Iamwriting to you as chair ofthe American Hospidtag Associetion Section for Long~'l'erm Care
`and RehabilitationHospitals md Programs and the L edical Steering Comminee ofthe American
`Rehabflimfion Association
`.
`
`On behalf of these groups I urge you to make every efion‘ to have the fizll test of the RAND
`W report released by I-ICFA as soon as possible; The Congress has finally authorized 21 Medicare
`prospective payment system. for rehabilitatiou.. It is»ériu'c'§l. mt tide RPP-S that
`adopted by
`HCFA properly gauges the-conditiozrand needs for service ofrehabilitation patients. HCF.-\
`seeaisjntent on using a patient classificafion system developed for nursing homes. We need to
`work for a consensus among rehabilitation providers about an RPPS_
`I Ihare personally l;een skeptical about FRG’s. l have eoncerns about coding and other aspects
`ofthe system. But, others and I have withheld judgement until welxave an opportunity to study
`and evaluate the system devised by RAND. I understand that you are asking HCFA to withhold
`we report fi'on1 the public, or to release only an abridced version ofit.
`
`I do not know the basis for this position and would not presume to advise you about the interests
`ofUDS. I can only indicate that is it urgent to get the RAND report but so that the rehabilitation
`field can adopt a strategy for developing the best possible RPPS with HCFA. I hope you will do
`whatever you can to get the RAND report released in 15.111.
`-
`
`Ifit would be helpfiil to discuss the matter, please all me.
`
`Sincerely,
`
`0'
`
`...»6¢
`
`Robert P. Main
`
`RPM/lge
`cc: Ms. Susanne Sonik, AHA
`Ms. Carolyn Zol1a_r, ARA
`
`UBF1065
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`On: Stslon Plaza. Chattanooga. Tennessee 37405
`.9
`
`Telephone (433) 634-2210
`
`.—.+».:~:<
`
`:'UTRL Pot3E.'o3 xoi.
`
`

`
`
`
`The
`Functional
`Assessment
`Specialists
`
`Uniform
`Data
`System
`for Medical
`Rehabilitation
`
`Telephone
`716.817.7800
`Facsimie
`-
`71 6.568.0087
`Email
`in1o@udsmr.org
`Website
`www.udsmr.org
`
`Suite 300
`
`270 Northpointe Parkway
`Amherst, New York
`14228
`
`December 4, 2003
`
`Daniel A. Relles, Ph.D.
`RAND
`
`1700 Main Street
`P.O. Box 2138
`
`Santa Monica, CA 90406-2138
`
`' Dear Dan,
`
`Thank you for sending along the two articles ("Evaluating the planned
`substitution of the minimum data set..." by Buchanan et al., and
`"Identifying and accommodating statistical outliers when setting..." by
`Paddock et al.) for UDSMR review. We have reviewed both articles
`and will provide feedback for each below. Prior to that discussion,
`however, I think that we should first revisit the original agreements to
`make sure we are all on the same page regarding use of UDSMR data
`provided to RAND via CVMS.
`
`Contractual Agreements
`
`The agreements signed in'1995 between UDSMR and CMS, CMS and
`RAND, and UDSMR- and RAND provide the basis for how UDSMR data
`are to be handled. These arrangements were carefully constructed to
`ensure that all parties obtained what they needed so that they could
`perform work commissioned by CMS, while at the same time providing
`appropriate protection to the intellectual property and proprietary
`information of each party.
`In our email correspondence recently you
`statedthat you did not have copies of all of these agreements, and you
`will recall that l faxed the missing documents to you, so you should
`now have the full set.
`-
`
`Based upon these agreements, it is our position that if CMS has not
`directed RAND to publish UDSMR information as ‘part of its work on the
`PPS, or, regardless of the involvement of CMS, RAND is publishing
`materials incorporating data obtained from UDSMR, then RAND must
`obtain permission from UDSMR prior to publication. Such permission
`is independent from any timelines RAND is attempting to follow. To
`ensure that RAN-D does not needlessly work on a publication only to
`find that permission to publish is withheld, we recommend that earty in
`the writing process RAND contact UDSMR and obtain permission.
`If
`such permission is withheld, then RAND may not publish. As I
`indicated to you in a previous communication, UDSMR is generally
`supportive of RAND's interest in publishing on the data, and will not
`unreasonably withhold such permission.
`
`‘E
`University at Buffalo
`
`UBF1066
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`

`
`We trust that the infonnation provided above gives RAND a clear
`indication of our expectations. We would be delighted to discuss these
`issues with you or any representative of RAND at your convenience.
`
`Sincerely,
`
`Richard T.Li
`
`Director
`
`UBF1067
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`

`
`fr‘ UDSMR“
`
`" Uniform Data System for Medical Rehabilitation ’
`232 Parker Hall
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`3435 Main Street
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`
`Buffalo, NY 14214-3007
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`Important lnformatin
`Co cemin
`ii§DSMR‘“
`
`and the
`HCFAIRAND Reports
`
`
`
`
`UBF1068
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`

`
`UDSMR" POSITION STATEMENT CONCERNING HCFAIRAND REPORTS
`ON THE DEVELOPMENT OF A PROSPECTIVE PAYMENT SYSTEM
`'
`FOR MEDICAL REHABILITATION
`
`Summary Statement
`(See Full Explanation on pages 3-7)
`
`September 1997
`
`UDSMR"iS becomingincreasingly aware of statements (both verbal and published) being
`made within the rehabilitation community which imply that UDSMR is standing in the way of
`HCFA's efforts to adopt a prospective payment system (PPS) for medical rehabilitation '
`based on UDSMR'szf=zlMTM' instrument and the FIM/FRGs’.
`In light of this and other recent
`statements which contain inaccuracies and incom lete in[orr_'nati_oh,‘a'n§l§b
`.
`r
`
`national significance of the implementation of a>l5lg‘S“-fbrrfiedicaliréhabili"_1
`_.
`desires to disclose the facts and circumstances surrounding its ,i_r3y;’,__ ; "find
`the Rand Corporation. (“RAND”) in order to correct any misunders ‘aifilyihgs 'a'n_d"$o}tb'at*fu1ure
`statements may be based on accurate infonnation.
`
`Summary of QDSMR Position
`
`Dr. Carl Granger and his colleagues at UDSMR have worked diligently for almost 15 years to
`develop and implement an outcomes measurement system for medical rehabilitation which
`would benefit the rehabilitation community and its patients- The centerpiece of this effort
`has always been adherence to the uniformity, vali_dity»_and scientific integrity of the FlM
`instmment and the associated data, as well as" maintenance of UDSMR'S strict
`independence to assure unbiased results. Although pr. C_-‘4_range_r-has _always believed
`strongly in the free flow of ideas among researchers andothers, uosmmiag hadlno choice
`but to take steps to protect the FIM inst‘mment and data so valuable to___the_ field and to
`UDSMR'ssubscribers.
`'
`‘
`«
`I
`‘
`V
`'
`’
`’
`‘f
`'5
`
`The present issue with HCFA over publication of the RAND Corporation reports involves the
`protection of UDSMR'S intellectual prop.erty rights ._under its agreementswith HCFA. The
`premature dissemination of the: draft reports v}iit_hoUt'UDSMR’s consent has already led to
`improper commercial exploitation by third parties of-the information contained in those
`reports, and UDSMR seeks only to avoid further breaches of its proprietary rights. UDSMR
`has requested deletion of certain information for purposes of general publication, -and has
`agreed to make the full reports available subject to appropriate terms and conditions.
`Failure by UDSMR to take these steps will, UDSMR believes, lead to a deterioration in the
`uniformity and integrity of the FIM instrument and a significant loss of its importance to the
`rehabilitation field.
`
`'F|M is a trademark of UDSMR
`
`“The FIM/FRGs were developed by Dr. Margaret Stineman at the University of Pennsylvania and are owned _by the
`Trustees of the University of Pennsylvania. UDSMR has exclusive rights to use and incorporate the FIM/FRGs into
`products and services.
`
`UBF1069
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`

`
`
`
`UDSMR“: The Systemm
`
`Current Status
`
`1. HCFA wants to release the RAND. reports for publication; The rehabilitation field
`(including various for—profit commercial ventures) isanxiously awaiting release of
`thereports in order to permit the rehabilitation industry to evaluate the-usefulness
`of a PPS based on the FIM System and the modified version of the FIM/FRGS.
`
`2. UDSMR is willing to permit HCFA to release the RAND reports, provided-that
`HCFA removescertain information that is proprietary to UDSMR. ,USMR-has
`made specific proposals to HCFA as to the infonnation which must be deleted
`and final agreement between HCFA and UDSMR is anticipated shortly.
`
`3. UDSMR stands ready to provide consulting services to assist in the evaluation of
`the effect of the proposed PPS on inpatient medical rehabilitation.
`
`uosm“ a Mission
`
`To develop, refine, promote and maintain the FIM measuring inst_rument and_its_
`accompanying dataset and technology (the “FlM.System“‘" ) in response..to the need to
`measure, record and track the severity of patient disability and the outcomes of medical
`rehabilitation in a uniform manner.
`
`UDSMR has carried out this mission.through anot.-for-profit-entity, .with.the .p.ri,mary_p_u_rpose,
`of serving the field of medical rehabilitation in an evenhanded, uniform wayaand has
`rejected all offers and proposals from_third- parties«(i,nclu_ding.»offers to purchase the FIM
`System) which might compromise or give the appearance of compromising UDSMR'S
`mission or principles.
`'
`
`For more information, contact: James A. Phillips, MS, CEO
`Uniform Data System for Medi_cal Rehabilitation
`232 Parker Hall, 3435 Main Street
`’
`Buffalo, New York 14214
`(716) 829-2076, ext. 31
`(716) 829-2f08(_)'(FAX)
`
`***NOTE TO OUR SUBSCRlBERS**"
`
`FOR INFORMATION REGARDING A CUSTOM REPORT FOR YOUR FACILITY,
`PLEASE CONTACT
`~
`‘
`
`DAVID LUNTZ AT (716) 829-2076 X36
`
`
`
`‘FIM System is a trademark of UDSMR. All copyrights in the FIM System and the components thereof are owned
`by UDSMR.
`.
`
`2
`
`’
`
`UBF1070
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`

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`.......,...................._.........................,......-
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`
`.>'a*—-rs‘:=v’:."1P'sr1:5v:—=Hr:—..—_'!E2-.’_-.:L-~,rv:ar«"::scr.r:‘v=:Jx-.-»-.-..,-—-1.._.....-m-a...._..._—-.-.--...._..,...=-y....._....,,...qm.,..:«;..__.-.._...._...;.,........,__,,,..__,,_.,___.
`
`
`UDSMR" POSITION STATEMENT CONCERNING HCFAIRAND REPORTS
`ON THE DEVELOPMENT OF A PROSPECTIVE PAYMENT SYSTEM
`FOR MEDICAL REHABILITATION
`"
`
`September 1997
`
`UDSMR is becoming increasingly aware of statements (both verbal and published) -being
`made within the rehabilitation community which imply that UDSMR is standing in the way of
`HCFA's efforts to adopt a prospective payment system (PPS):-for medical rehabilitation based
`on UDSMR's FlMW' instrument and the FIM/FFtGs2. A recent article in American Health
`Consultants’ Rehab Continuum Report (Vol. 6, No. 10, October 1997, p.133-135) states "A
`recent dispute between Unifonn Data System for Medical Rehabilitation (UDSMR) and the
`Health Care Financing Administration (HCFA) ‘over proprietary infonnation in the Santa
`Monica, CA—based RAND Corporation's report on FRGs has-delayed the release of the report
`and HCFA's final decision on a PPS". UDSMR believes there is a substantial amount of
`misinfonnation circulating in the field regarding UDSMR's relationship with HCFA which may
`be leading to inaccurate conclusions.
`In light of this and other recent -statements which
`contain inaccuracies and incomplete information, and because of the national significance of
`the implementation of a PPS for medical rehabilitation, UDSMR desiresto disclose the facts
`and circumstances surrounding its involvement with HCFA and the Rand Corporation
`(“RAND”) in order to correct any misunderstandings and so that future statements may be
`based on accurate infonnation.
`
`I.
`
`Summary of UDSMR‘ Position
`
`Dr. Carl Granger and his colleagues at UDSMR have worked diligently for almost 15
`years to develop and implement an outcomes measurement instrument for medical
`rehabilitation which would benefit the rehabilitationvcommunity and its patients. The
`centerpiece of this effort has always been an unbending adherence to the uniformity,
`validityand scientific integrityof the FIM instrument and associated data, as well as
`maintenance of UDSMR's strict independence to assure unbiased results. Although
`Dr. Granger has always believed strongly in the free flow of ideas among researchers
`and others, UDSMR has had no choice but to take steps to protect the FIM instmment
`and data so valuable to the field and to'UDSMR’s subscribers.
`
`The present issue with HCFA over publication of the RAND reports involves the
`protection of UDSMR's intellectual property rights under its agreements with
`HCFA. The premature dissemination of the draft reports without UDSMR’s consent
`has already led to improper commercial exploitation by third parties of the information
`contained in those reports, and UDSMR seeks only to avoid further breaches of its
`
`of ‘general publication, and has agreed to make the full reports available subject
`to appropriate terms and conditions.
`
`Failure by UDSMR to take these steps will, UDSMR believes, lead to a deterioration in
`the uniformity and integrity of the ‘HM instrument and a significant loss of its
`importance to the rehabilitation field.
`'
`__._______________._____.____________.__.___._
`'FlM is a trademark of uosm
`
`l«l.OL:l9l'l
`
`

`
` UDSMRS9: The FIM Systemm
`
`ll.
`
`UDSMR Mission
`
`To develop, refine, promote and maintain the FIM «measuring instrument and its ac-
`companying dataset and technology (the "FlM System“"") in response to the need to
`measure, record and track the severity of patient disability and the outcomes of medi-
`cal rehabilitation in a uniform manner. (see also Item VI below)
`
`UDSMR has carried out this mission through a not-for-profit entity with the primary pur-
`pose of serving the field of medical rehabilitation in an evenhanded, uniform way and
`has rejected all offers and proposals from third parties (including offers to purchase
`the FIM System) which might compromise or give the appearance of compromising
`UDSMR's mission or principles.
`"
`.
`
`Ill.
`
`License Agreement with HCFA (1995)
`
`A.
`
`B.
`
`Purpose: -To grant to HCFA a limited license to evaluate and implement
`UDSMR's FIM System as the basis for a PPS for medical rehabilitation.
`
`Summary sf Lisenss Provisions:
`
`1.
`
`2.
`
`The license granted to HCFA was in two distinct phases. The first
`phase license was solely for the purpose of evaluating the FIM System.
`The second phase license (not yet implemented) is contingent upon
`HCFA adopting the FIM System as thebasis fora PPS.
`
`In the first phase, UDSMR granted HCFA a license to evaluate the suit-
`ability of the proprietary FIM System and gave HCFA access to propri-
`etary data from its Adult FIM database, as well as other related informa-
`tion including proprietary algorithms, processes, etc. ("Information"), all
`subject to the terms of a confidentiality agreement.
`
`a.
`
`.
`
`b.’
`
`UDSMR subscribers were contacted individually and asked for
`permission to make -their data available to HCFA.
`
`UDSMR acknowledged that HCFA-intended to hire a subcontrac-
`tor to evaluate the FIM System and agreed HCFA could subli-
`cense the FIM System to its subcontractor and give its subcon-
`tractor access to UDSMFl'S Information on the condition that the
`subcontractor sign a confidentiality agreement and consent -to
`certain minimum sublicenseterms and conditions aimed at pro-
`tecting the proprietary nature of the material disclosed. HCFA
`subsequently designated RAND as its subcontractor and RAND
`signed the confidentiality agreement and agreed to the subli-
`cense terms in October 1995.
`
`
`
`‘ (continued)
`
`‘FIM System is a trademark of UDSMR. All copyrights in the FIM System and the components thereof are owned by UDSMR.
`
`"
`
`UBF1072
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`

`
`.UI‘)SMR‘“: The FIM systeml”
`
`
`
`c.
`
`The confidentiality agreement signed by RAND provides that
`RAND must keep confidential all lnforrnation supplied by UDSMR
`(includinga