Charleston Area Bloggers Coffee Fest

The first semi-official coffee fest of the Charleston Area Bloggers ("CAB") is on at 8 am on January 4 at Taylor Books. I'm looking forward to meeting the faces/voices behind some of the local blogs that I follow.

If you are a local blogger or interested in learning more about blogs you are welcomed to attend.

For more on the event check out Rick Lee's post here.

The Future of Privacy: 1971 View of Privacy by Supreme Court nominee Alito

Supreme Court nominee Samuel Alito participated in an extensive review of the future of privacy in the United States. It was 1971 and he was a college student at Princeton University. The report outlined four key areas of inquiry: Federal Government Surveillance, State & Local Gathering Data-Gathering Activities, Private Data-Gathering Activities, and the Regulation of Stored Data.

According to the Electronic Privacy Information Center (EPIC), "As conference chair, Samuel Alito was responsible for the development of the project, the research, and the remarkable summary that accompanies the final report."

EPIC obtained a complete copy of the conference report from the Seeley G. Mudd Manuscript Library at Princeton University and has made it available online at the EPIC Web site. We thank the staff of the Mudd Library for their cooperation in this project.

I'm glad my college manuscripts are not under such scrutiny.

Thanks to beSpecific for this tip.

Googling Health Care, Google Medicine: What does the future hold?

Googling your health care. What does the future hold? An interesting editorial to read on the eve of the new year from the British Medical Journal.

Wikipedia and the Law

Wikipedia, the open source encyclopedia, has received significant press lately over its reliability. Of interest to lawyers is this post over at InternetCases.com discussing the use of Wikipedia over the last year by several courts from around the country.

I have started to use Wikipedia more and more over the last year. For example, check out its entry for "common law" and the column to the right on all the common law topics. It reads like my old law school outlines.

I use it for research at work, looking up current events and just for fun at home with the kids. It works great for my wife and I when we get those tough questions from our 5 year old -- from how things work to the whys of the world. It is a tremendous resource for information on any topic. Like any resource I think you need to be cautious when using it -- but it sure beats thumbing through my old Britannica or Comptons.

When describing it to people I call it a living and breathing encyclopedia and dictionary created and edited by the masses. I believe that even Dr. Johnson would be proud of Wikipedia.

What's Wikipedia? Check out its own definition of itself.

Thanks to Ernie the Attorney over at Between Lawyers whose initial post prompted me to post.

Senator Rockefeller and the NSA: Law, Politics, Privacy and Technology

For an interesting view on law, politics, privacy and technology read West Virginia Senator Rockefeller's letter involving the recent NSA domestic spy program.

The comments in the following post suggest that the capability of the NSA extend to the ability to perform a prospective or retrospective look at everyone's email messages (and I mean everyone) and filtering the information using key word searches. If a message hits with certain key words there would be the ability to dig deeper into that sender and receivers emails or implement longer term monitoring.

I am not at all surprised that the NSA is capable of such detailed and thorough searches of electronic communications, especially when comparing this to the capabilities of Google Earth (download this for your kids -- it provides hours of fun). If Google Earth provides every citizen this much detail of the NSA (type in National Security Agency into Google Earth) -- just think what the NSA is capable of seeing.

The NSA and USA PATRIOT Act a fascinating look at the legal and technology issues that collide when looking at today's wiretap issues involving email, instant messaging, electronic communication, etc. As a lawyer concerned with privacy issues I jump back and forth between support for and against the use of technology to protect citizens of the United States. I often echo the quote by Scott McNealy, CEO of Sun Microsystems, "You already have zero privacy -- get over it." It sure gives new meaning to search,seizure and plain view.

I also find it fascinating that Senator Rockefeller chose to use a "handwritten letter" to convey his concerns.

To read more indepth analysis of the complex legal issues involved check out this post and the followup comments by The Volokh Conspiracy.

Thanks to Marty Schwimmer at Between Lawyers for the link on this information.

Grand Rounds: Medpundit

Medpundit is this weeks host of Grand Rounds 2.13, the best of the medical blogoshpere. Check it out. Don't miss submitting your best medical blog post of 2005 to Matthew Holt at The Health Care Blog who will be doing a "best of 2005" theme next week.

A Doctor's Perspective: Medical Malpractice Trial

Kevin, M.D. pointed me to an insider's look at how doctors view medical malpractice trials which appeared in the The Olympian online. This is a must read for all medical malpractice lawyers and health care providers. I hear similar trial stories from the litigators in our firm's professional liability practice group.

Also the article points out a point that I often make -- that is -- the impact of "going through a trial" has on a doctor -- regardless of the merits of the case. The article also highlights the issue so often wrapped up in many medical malpractice cases: bad outcome vs. medical negligence.

West Virginia eHealth Initiative: White Paper on EHRs

The West Virginia eHealth Iniative recently released a resource white paper called, "So You've Decided to Buy an EHR . . . a West Virginia eHealth Initiative White Paper on Electronic Health Record System Acquisition. "

The purpose of the white paper was to is better equip providers with additional unbiased information about EHR purchases and to provide focused practical recommendations for adoption of technology based electronic health record systems.

I recently became a member of the West Virginia eHealth Initiative Steering Committee which is involved in the OHCHIT grant to develop prototypes for a national health information system.

If you have any comments on the white paper -- please let me know and I will pass them along to the subcommittee involved in the development of the white paper.

House Approves $111.7M for ONCHIT

Government Health IT and iHealthBeat Daily News are reporting that last week the House approved $111.7M to support programs backed by the Office of the National Coordinator of Health Information Technology (ONCHIT).

The articles, report that the $111.7M funding is less than the $125M requested by President Bush but $16M more than the Senate version of the bill. The article by Government Health IT states, "This increase of the original Senate mark for ONCHIT also validates the possibility that HHS could award additional National Health Information Network (NHIN) contracts."

In November, ONCHIT awarded four contracts to develop national health information network prototypes worth a total of $18.6 million, including one contract involving West Virginia's eHealth Initiative. Originally ONCHIT had planned to awared six contracts.

HippocratesCan Doctors Learn to Love EMRs? YES, IF: | The Medical Blog Network

Hippocrates over at The Medical Blog Network does a great job of answering the questions I posed about electronic medical records (EMR) and what it all may mean for health care providers, insurance companies, government officials, IT consultants and lawyers.

Supreme Court of Appeals: Recent Decisions Related to Health Care in West Virginia

The Supreme Court of Appeals of West Virginia released its summary of recent opinions, including 12 opinions filed on November 17, 2005. If you are interested in following the Court's decisions as they are released you can subscribe to the RSS feed here. I previously posted about two decisions dealing with the Certificate of Need law in West Virginia.

First, the decision in Family Medical Imaging, LLC et al. v. West Virginia Health Care Authority, No. 32565 (Per Curiam)(Starcher, J., dissenting)(Nov. 17, 2005). As a followup to my previous post Justice Starcher filed his dissenting opinion in the matter on December 15, 2005.

Second, the decision in Fairmont General Hospital, Inc. v. United Hospital Center, Inc., West Virginia United Health Systems, Inc. and West Virginia Health Care Authority, No. 32669 and 32670 (Benjamin, J.) (Davis, J., concurring) (Starcher, J., dissenting) (November 29, 2005). As a followup on my previous post Justice Davis filed her concurring opinion in the matter on December 5, 2005.

Also, another health care related decision was released by the Court on November 17, 2005. The decision, State Tax Commissioner v. REM Community Options, Inc., No. 32580 (Albright, J.)(Maynard, J., dissenting)(Starcher, J., concurring), involved the Court's look at the scope of privilege tax on health care providers.

The Court affirmed, on different grounds, a decision of the Circuit Court of Kanawha County that reversed a decision by the Office of Tax Appeals that had significantly reduced the amount of privilege taxes owed by a taxpayer who provides services pursuant to Title XIX of the Social Security Act, known as the Mental Retardation Developmental Disability Waiver Program, 42 U.S.C. 1396. The Court held that it is unnecessary to address certain retroactive legislative amendments because the applicable statute as enacted applies to the behavioral services provided by the taxpayer. The Court's decision created two new syllabus points:

Syllabus point 3, that: "The term “health care related,” as it pertains to the provision of behavioral health services within the meaning of West Virginia Code § 11-13A-2(d) (1995) (Repl. Vol. 2003) for purposes of levying the privilege tax upon certain health care providers, broadly encompasses both physical and mental health and all the various services related to maintaining or restoring an individual's physical and/or mental health."

Syllabus point 4, that: "The privilege tax imposed under West Virginia Code § 11-13A-3 (1997) (Repl. Vol. 2003) upon certain health care providers is not limited in application to behavioral health care services that are provided by licensed medical providers."

Technorati Tags: WVHCA, CON, WV, West Virginia, law, health care, health

Compliance Plans: Do you have one and are you following it?

Compliance Plans are a must for hospitals, doctors, nursing homes and other health care providers.It's good practice and good business. I noticed a new post by a blog colleague at Garlo Ward, P.C. who has posted a good summary of what compliance plans are, how they came about and why you should have one.

I'm always surprises at how many health care providers don't have a formal compliance plan or worse yet, have one but have not really implemented the plan or are not regularly following the plan. Like most risk management and compliance related matters these items often get shoved to the back burner and until the federal government comes knocking they are not a high priority.

OIG Issues Draft Compliance Guidance for Recipients of PHS Research Awards

Draft Compliance Program Guidance for Recipients of PHS Research Awards released by Office of Inspector General, Department of Health and Human Services (OIG).

The November 28, 2005, Federal Register notice seeks comments on the draft compliance guidance developed by the OIG for recipients of extramural research awards from the National Institutes of Health (NIH) and other agencies of the U.S. Public Health Services (PHS).

The OIG sets forth its views on the value and fundamental principles of compliance programs for colleges and universities and other recipients of PHS awards for biomedical and behavioral research. The compliance program is not mandatory, but just guidance on how institutions may establish internal controls to allow the institution to better comply with the rules and standards that apply to PHS extramural research awards.

The deadline for commenting is December 28, 2005.

EPA Fines Over $10M For Failure to Disclose Health Impact Information at West Virginia Facility

Just saw the Yahoo News item announcing that DuPont has agreed to pay $10.25M in fines and $6.25M in environmental projects to settle allegations by the EPA that the company failed to disclose information about the dangers of toxic chemicals used to make Teflon.

This is particularly of interest to West Virginians because this settlement relates to the events surrounding DuPont's production of PFOA, also known as C-8, for over 20 years at its West Virginina facility and the contamination and health impact on the water supplies near the company's Washington Works plant near Parkersburg, W.Va.

This settlement follows a Febuary decision by the company where the company agreed to pay more than $107 million to settle a class-action lawsuit filed in 2001 by Ohio and West Virginia residents who claimed that DuPont intentionally withheld and misrepresented information about the human health threat posed by PFOA.

Here is Dupont's press release on the Settlement with EPA.

Followup on EMRs: Can Doctors Learn to Love EMRs?

Matthew Holt over at the The Health Care Blog wrote a interesting blog post that generated some great comments. He even reposted about how good the comments were.

I had planned to summarize the comments but the HealthCare IT Guy has already beat me to it. If you are interested in EMRs (electronic medical records) and what it means for health care go read the summary, original post and and the full comments.

Much of the commentary focuses us all in on the various purposes and reasons for implementing or not implementing EMR systems. Depending on whose agenda you look at the purposes/benefits/disadvantages change.

Like most lawyers I have more questions than answers:

• Do EMRs and technology allow doctors to provide better care?
• Will EMRs allow for the growth and potential benefit of evidence based medicine?
  
• Do EMRs impact patient safety?
  
• Do EMRs streamline health care and make providing it more efficient?
  
• Will EMRs ultimately reduce the cost of health care even if there is a increase in costs to implement and maintain the technology?
• Does better data mean better service?
  
• How can health insurers use data coming out EMRs to better manage costs? Will the data be used to negatively or positively impact the provision of care?
  
• How will the clinical encounter data coming from EMRs be used in the claims process? Will it have a positive or negative impact.
• What are the real motivations behind federal and state politicians jumping on the EMR bandwagon?
• How will we be able to get non-tech health care providers to efficiently and effectively use technology to provide better care? (If you think health care professionals are bad at using technology just visit your local law firm)
• Will patients even listen to good advice about preventative care, eating better and smaller portions, reducing weight, exercising more, etc. Will the data improve doctors ability to convince patients to make these lifestyle changes?
  
• Will the benefits of lower utilization as a result of changing health care lifestyle ultimately benefit the consumer, employers, the doctor, the hospital or will the insurer reap the financial benefits?

Retaliatory Discharge: A Frequent Theory of Liability Against West Virginia Hospitals and Healthcare Providers

Following is a summary and guidance for West Virginia human resource managers on retaliatory discharge related claims faced by health care providers. The summary was prepared by my colleague, Ben Salango, a partner at Flaherty, Sensabaugh & Bonasso, PLLC. Ben's a member of our Health Care Practice Group and focuses on medical malpractice and employment litigation.

The West Virginia Human Rights Act prohibits employment discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status. More frequent are claims under the West Virginia Human Rights Act against an employer for retaliation. Specifically, the Human Rights Act provides that an employer commits an unlawful discriminatory practice when the employer retaliates because the employee has opposed any practice or act forbidden by the Human Rights Act, or because he or she has filed a complaint, testified or otherwise assisted in any proceeding under the Human Rights Act. See W. Va. Code § 5-11-9(7)(c).

In order to prove a retaliation claim, an employee is generally required to prove the following: (1) the individual engaged in protected activity under the Human Rights Act; (2) the employer was aware of the protected activity; and (3) the employee was adversely affected by an employment decision following the employeeÂ’s protected activity within such period of time that the court can infer retaliatory motive.

Though there are numerous activities which are deemed "protected"” under the Act, frequently hospitals and healthcare providers are faced with claims alleging that an adverse employment action was taken against an employee because the employee filed a workers'’ compensation claim or expressed concerns over a purported safety violation. Recently, a Kanawha County jury awarded a discharged nurse more than $2 million against a hospital for allegedly terminating her employment because she complained of safety violations.

West Virginia employers have also seen an increasing number of lawsuits for violation of the Anti-Discriminatory Provisions of the West Virginia WorkersÂ’ Compensation Act. West Virginia Code § 23-5A-3 specifically prohibits an employer from terminating an injured employee while the injured employee is off work due to a compensable injury and is receiving or is eligible to receive temporary total disability benefits. There is an exception to this rule when the injured employee commits a separate dischargeable offense.

Human Resources Managers should be cautious about enforcing a policy that requires termination when an employee has not worked for a certain period of time (typically six months or a year). Often, the terminated employee institutes litigation when such policies are enforced because the employee is off work receiving temporary total disability benefits. Thus, enforcement of such a policy results in a violation of West Virginia law and potential liability against the employer.

WV Supreme Court Issues Decision in Fairmont General Hospital CON Matter

Yesterday the Supreme Court of Appeals of West Virginia released its decision in Fairmont General Hospital, Inc. v. United Hospital Center, Inc. and West Virginia United Health Systems, Inc and West Virginia Health Care Authority.

The case involved a consolidated appeal by United Hospital Center (UHC), West Virginia United Health System (WVUHS) and the West Virginia Health Care Authority (Authority) from a November 24, 2004 order issued by the Circuit Court of Marion County by Judge Fox reversing a previous administrative decision by the Office of Judges affirming the granting of a certificate of need to UHC and WVUHS to construct a replacement hospital facility in Bridgeport, West Virginia which would replace the existing UHC facility located in Clarksburg, West Virginia.

The Court's decision reversed Judge Fox's order and remanded the matter for issuance of a certificate of need consistent with the Authority's decision which granted UHC and WVUHS the right to construct the new facility. The decision invalidated the mile limitation outlined in the Renovation and Replacement of Acute Care Facilities and Services Standards under the State Health Plan.

The focus of the appeal involved the relocation of the new facility approximately 8 miles away from the present location when at the time of filing of the certificate of need application the Renovation and Replacement of Acute Care Facilities and Services Standards under the State Health Plan contained a limitation that replacement facilities be no more than 5 miles from the hospital facility being replaced. Ultimately, the question was whether or not the site (located 8 miles away) approved by the Authority for the construction of UHC's replacement hospital was consistent with the State Health Plan under WV Code 16-2D-9.

Interestingly, the Court focused much of its decision on the status of the Certificate of Need Standards under the State Health Plan, which the Court recognized are "not legislative rules," and the interplay between the Standards and the Certificate of Need Standards under WV CSR 65-7-1 et seq., which are legislative rules. The Court also addressed the conflicts that exist between the Certificate of Need Standards under the State Health Plan and the criteria under W.Va. Code 16-2D-6 which the Authority is required to use when analyzing whether to grant a particular certificate of need.

The Court took up a unique threshold question in the decision, stating "whether the five-mile limitation as imposed by the Authority and the Governor conflicts with provisions of W.Va. Code 16-2D-1 et seq., or is not authorized by legislative guidelines provided for the exercise of powers conferred upon the executive department." The Court asked the question, "is the limitation [five miles] a legally valid restriction?" As a result of the position taken by the Court on this point it appears that they have called into question not only the five mile limitation under the Renovation and Replacement Standards but possibly any other limitations imposed under any of the other Certificate of Need Standards outlined under the State Health Plan.

The Court found the five mile limitation defined under Section I(W) of the Renovation and Replacement of Acute Care Facilities and Services invalid insofar as the standards requirement that the replacement facility be within five miles of the original facility. The Court supports its finding that the five mile limitation is invalid by stating:

"The five mile limitation is invalid because it
(1) conflicts with W. Va. Code § 16-2D-6(d) (1999);
(2) is a criterion not included within the criteria for certificate of need reviews set forth in W. Va. Code § 16-2D-6(a) (1999) or in 65 C.S.R. § 7-12;
(3) was promulgated by the executive department of state government without clear legislative public policy objectives and guidelines;
(4) precludes a balanced consideration of the statutory criteria for certificate of need reviews as set forth in W. Va. Code § 16-2D-6 (1999);
(5) conflicts with, rather than supports, the findings and declarations of the Legislature set forth in W. Va. Code § 16-29B-1 (1997) and W. Va. Code § 16-2D-1 (1977); and
(6) is arbitrary and capricious."

For more information about this case you might want to check out my previous post which includes links to the briefs filed by the various parties.

Also, I haven't had time yet to compare this decision to another recent certificate of need decision issued by the Court in the Family Medical Imaging, Inc. v. West Virginia Health Care Authority where the Court recognized that the Certificate of Needs Standards under the State Health Plan as "interpretive rules," but did not invalidate the standards in that particular case.

The Charleston Daily Mail reports on the decision here.

Update: "UHC Can Build New Hospital," News articled from WBOY 12 by Juliet Terry.

Technorati Tags: WVHCA, CON, WV, West Virginia, law, health care, health

Deadline for Medicare Prescription Coverage Coming Soon

If you are Medicare eligible you should make sure to investigate and select your Medicare Prescription Coverage by the end of December. The deadline for selecting coverage is December 31, 2005.

For more information check out the Medicare website resource information. West Virginia state information can be found on the Landscape for Local Plans section of the Medicare website.

For additional reactions to the change in the Medicare program to a more decentralized drug program allowing competition Garlo Ward recommends Medical News Today's coverage.

Garlo Ward Law Firm Adds Blog Features

A quick health care bloggers welcome to Garlo Ward , an Austin, Texas health care law firm who recently redesigned its website to incorporate a blog based front page. Thanks to Robert Ambrogi's Lawsites for reporting this news.

I ran across post Katrina information issued by the Garlo Ward firm when I was posting regulatory information about the impact of Hurricane Katrinia.

I also want to thank them for adding my Health Care Law Blog to their blogroll.

West Virginia Supreme Court upholds WV Health Care Authority's Decision on Physician Ultrasound Services

On November 17, 2005 the Supreme Court of Appelas of West Virginia released its decision in Family Medical Imaging and Poling vs. West Virginia Health Care Authority. This matter involved the Authority's denial of a certificate of need by physicians to provide ultrasound diagnostic services to patients referred to them by other physicians in Raleigh, Wyoming, McDowell, Fayette, Summers and Nicholas Counties, West Virginia.

Health Care Projects in 2006: OIG 2006 Work Plan

If you want to better understand what projects and issues the federal government plans to address in 2006 check out the Fiscal Year 2006 Work Plan issued yesterday by the OIG.

The OIG Work Plan sets forth the projects to be addressed by the Office of Audit Services, Office of Evaluation and Inspections, Office of Investigations, and Office of Counsel to the Inspector General. The Work Plan includes projects planned by Centers for Medicare & Medicaid Services (CMS), public health agencies and the Administrations for Children and Families, and on Aging.

Technorati Tags: OIG, Work Plan, CMS

West Virginia to Participate in $18.6 Million E-Health Project

The Department of Health and Human Services (HHS) announced four contracts totaling $18.6 million to four groups of health-care IT vendors, services firms, and health-care providers to use to develop prototypes for a national health information highway.

West Virginia will be participating as a part of a three state consortia headed by Accenture. Accenture will be working with Apelon, Cisco, CGI-AMS, Creative Computing Solutions, eTech Security Pro, Intellithought, Lucent Glow, Oakland Consulting Group, Oracle, and Quovadx.

The consortia will cover the following health market areas: Eastern Kentucky Regional Health Community (Kentucky); CareSpark (Tennessee); and West Virginia eHealth Initiative (West Virginia).

More evidence that there in interest and initiative from the federal government down to the state and local level for a push to convert the traditionally paper based health record system to one that is electronically based.

More Capitol & Kids

I live across the Kanawha River from the West Virginia Capitol. This is one of my favorite photos taken on the same day. It is a photo of my son with a neighborhood friend.

You don't always appreciate the beauty of your surroundings, especially when they are in your backyard. I can see the Capitol from my backyard and at night it is a spectacular view. It is also beautiful in the fall to look across the river and see all the changing fall colors and the gold Capitol dome reflecting in the river.

The Capitol is just one example of the beauty of West Virginia. So often West Virginia is viewed negatively in the national media. For more photos on West Virginia be sure to check out Rick Lee's website and blog. I noticed that Rick just surpassed 50,000 visits to his photo blog. Through his blog he is a great ambassador of the beauty of West Virginia.

Here are some additional photos of the Capitol through Rick's lense:

• More Capitol
• Capitol Fauna
• Con-dome (when they originally wrapped the Capitol up for the restroration project I made the suggestion that the state should have contacted Trojan for sponsorship. The project could have probably been paid for through the advertising dollars generated from a Trojan logo on the outside of the dome with a phrase like "protecting state government" for those passing by on I-64/79)

Close Up of the New Capitol Dome

Here is a close up of the new dome. The restored Capitol dome was modeled after Cass Gilbert's original design, which was chosen by the citizens of West Virginia over the all gold leaf design that West Virginia's had come to recognize when the Capitol was regilded in 1988. A press release by the Governor's Office provides some more details:

CHARLESTON, W.Va. - Gov. Joe Manchin today encouraged state residents to actively participate in the selection of the West Virginia State Capitol dome finished exterior design by voting between two restoration options.

“The Capitol dome is a historical landmark of national and international significance and deserves to be preserved in the best possible manner,” the governor said. “I encourage all citizens to take advantage of this opportunity and to express their opinions on what the future should hold for this wonderful part of West Virginia’s history.”

West Virginia citizens can select between two proposed design options:

OPTION A – Original Dome Design: The West Virginia State Capitol was designed by the pre-eminent American architect Cass Gilbert and was dedicated on June 20, 1932. Mr. Gilbert based the Capitol dome’s design on the dome of the Hotel National des Invalides in Paris, France. Les Invalides was constructed in 1708 by Louis XIV and currently houses Napoleon’s tomb. Following the lead of Les Invalides, the original State Capitol dome was finished with gold leaf and a gray (lead-colored) field. The intent of this color scheme was to create a transition between the building’s limestone neutral color and the gold-leafed lantern, drawing the eye upward from the dome base to the lantern.

OPTION B – All Gold Dome Design: In 1988, the original two-tone color scheme was replaced and covered entirely with gold leaf.

West Virginia State Capitol

For a while I have needing to replace the photo of myself and my daughter that appeared in my blogger profile. I don't have any good new photos of myself with my children so I thought I would add a photo of the recently refurbished West Virginia State Capitol Dome. The unveiling by Governor Manchin coincided with the release of the West Virginia state quarter which features just one of West Virginia's many treasures, the New River Gorge Bridge. Here is a photo of the Capitol prior to the unveiling

Appellate Court Use of RSS Feeds

Following up on a recent post about Oklahoma joining the list of state courts now offering appellate court decisions via RSS feeds, Rory Perry provides some additional detailed information about each of the states and the various RSS feeds available.

First Hospital CEO Blog: Nick's Blog

Just wanted to welcome Nick Jacobs, President and CEO of Windber Medical Center, to the health care blogging community. He is now blogging at "Nick's Blog." Guess it was only a matter of time before a hospital CEO joined the blog ranks. I look forward to watching Mr. Jacob's posts.

Mr. Jacob's story of how and why he started blogging is featured over at the Diva Marketing Blog. Other hospital CEOs should take note. I plan to email this link out to some of my hospital client CEOs and see if a West Virginia CEO can become the second hospital CEO blogger.

For more information check out this post at Hospital Impact.

Millions of West Virginia Genealogy Records Now Available Online

I've been an avid genealogist for a number of years and although I don't do as much as I use I still periodically get into researching my family lines (Coffield, Yoho, Harris, etc.) and sharing information with family.

Today's Charleston newspapers featured an article on a new online genealogy research tool developed by the West Virginia Division of Culture and History. It allows you to search birth, death and marriage records all over West Virginia.

The Divisions' press release states:

Vital Research Records online database. The new online database features more than a million West Virginia birth, death and marriage records—a valuable resource for genealogists and historians. According to agency officials, family history researchers can now search and view scanned images of the original birth, death and marriage records from six counties, as well as most statewide death certificates from 1917-54, on the Division’s website at www.wvculture.org/vrr.

“We are very pleased to announce this project, which is of great value to anyone researching their family history in West Virginia” said Troy O. Body, WVDCH commissioner. “Early indications from genealogists who have begun using this new online resource are extremely positive. I encourage anyone with roots in West Virginia to take time to check out our website and make a connection with their past.”

Fredrick H. Armstrong, the Division’s director of archives and history, added, “The ability to view digitized photographic images of the actual records rather than just the typed transcriptions is unusual in the online genealogy community. Having access to the actual record images contributes to increased accuracy in family research and we’re proud to move West Virginia into the forefront of this movement.”

Developed in collaboration with FamilySearch Archive, which microfilmed, scanned and indexed the records, the initial phase of the project includes county records for Calhoun, Gilmer, Hardy, Harrison, Mineral and Pendleton counties. The database includes county birth records for the period 1853-1930, county death records for 1853 until the late 1960s, and county marriage records from the creation of the county until the late 1960s, all of which are searchable by name, county and date. Records from additional counties will be added over the next few years. Statewide death certificates will be added annually as the records become 50 years old.

Sure beats the old days of going county to county to look up old records.

Beam Me Up! Grand Rounds 2.07

Grand Rounds 2.07 is being hosted this week at MSSP Nexus Blog by Rita Schwab. All you medical/health star trek aficianados will love the format for this week's Grand Rounds.

Technorati tags: Grand Rounds

New York Times Features NY Law Firm Associate - Opinionista

Today's NYTimes features Opinionista and her very popular blog called Opinionistas on the inner workings of a large NY law firm. If your interested in big law firm culture give it a read.

Many are watching this to see what actions will be taken by the law firm against the anonymous associate blogger of the firm -- if it is disclosed who she is and where she works. More interesting to me is the publicity that will likely surround any actions or inactions taken by the law firm. They better have their PR people ready for this one.

Once again this highlights an increasingly more common legal issue of what rights employees have to blog at home and at work about employer related issues. If you haven't already done so it is time to take a look at your employee handbook and establish some reasonable policies. Stay tuned!

Technorati tags: Opinionista, Opinionistas, law, employment

Healthcare Intelligence Network Blog

I received notice of a new (at least to me) health care blog called Healthcare Intelligence Network. I've added it to my blogroll and look forward to the posts by Melanie Matthews, the executive vice president and chief operating officer of the Healthcare Intelligence Network.

For more about the Healthcare Intelligence Network, who they are and what they offer check this out.

Google

I got an interesting chain email today that I thought I would pass along. Check out the following:

1) go to www.google.com
2) type in the word "failure"
3) press the "I'm feeling lucky"

Interesting search result.

Consumer Driven Healthcare: Computers vs. Hospitals

For an interesting comparison of the time you and I spend shopping for health care services vs. shopping for cars and computers check out this recent post at Hospital Impact. Will there be an increase in consumer driven healthcare? What factors will be involved?

Oklahoma Courts Follow West Virginia and Lousiana and Offer RSS Newsfeeds

Jim Calloway at his Law Practice Tips Blog reports that Oklahoma is the third state court to introduce RSS feed technology as a way to release appellate decisions.

According to Jim, Oklahoma follows West Virginia and Louisiana. It is great to see another state appellate court adding RSS feeds. I have been subscribing to West Virginia's RSS feeds implemented by Rory Perry for about a year and have found it to be an incredibly valuable service. As soon as a new case comes out I can scan the decision, determine whether or not the case relates to current/past client issues, notify clients or other attorneys about the decision, etc. One of the benefits of being an early adopter of RSS feed technology has been the ability to see relevant information first and notify my clients, my partners or other attorneys.

I ran a couple of Google searches and located that both Utah and North Dakota are using RSS feed technology to report and issue state court decisions. This brings the total to five states.

It's also great to see West Virginia and Louisiana at the top of a list rather than at the bottom. So often we find our states at the bottom of the list -- especially on health care related issues.

For more information on how West Virginia is leading the way on court technology issues you should check out Rory Perry's weblog on law, technology and the courts.

Governor Manchin Issues First West Virginia "Open for Business" Report

Today Governor Manchin issued the first in a series of "Open for Business" reports which are intended to document West Virginia's economic progress.

An item of interest to the legal and IT community appearing in the report is information on the development Orrick, Herrington & Sutcliffe's efforts to outsource its document, litigation and technology solutions to other law firms. The report announced a recent partnership between Orrick and Williams Lea.

The report states:

Orrick, Herrington & Sutcliffe announced a partnership with British firm Williams Lea, which specializes in providing document, litigation and technology solutions to law firms, but also does such work as design and graphics for banks. Orrick's Global Operations Center in Wheeling will continue to provide technology, finance, human resources, Web engineering, benefits, payroll and marketing services while Williams Lea will coordinate all of Orrick's word processing needs, transcription production services and document services work. The company will hire 30 employees to start. Orrick also will continue to develop a U.S.-based outsourcing business for other law firms.

Here is the Orrick press release announcing the partnership.

Halloween Fun!

CIMG0279
Originally uploaded by Coffield.

Even More Halloween Fun!

CIMG0278
Originally uploaded by Coffield.

More Halloween Fun!

CIMG0294
Originally uploaded by Coffield.

Former Employee Sues Allegheny Energy Involving Release of Information from Yahoo

Today's Charleston Gazette ran an interesting article on a lawsuit filed by a former employee of Allegheny Energy, Inc. against Allegheny Energy and its lawyers for wrongful use of the court system to subpoena records from Yahoo to uncover his identity. It appears that Allegheny Energy filed a lawsuit against a "John Doe" for the purpose of issuing a subpeona to Yahoo to uncover the former employees identity. The article indicates that the lawsuit involves claims for wrongful termination and violation of privacy.

Brian Peterson over at his West Virginia Legal Weblog has a link to the AP article on the lawsuit.

An interesting lawsuit to watch. If I get time I will try to track down a copy of the complaint.

Grand Rounds 2.6 is now up at KidneyNotes.com

Grand Roudns 2.6 is being hosted this week by KidneyNotes.com.

CMS HIPAA Administrative Simplification Infomation

I received this notice and reminder from the CMS HIPAA outreach listserve today:

Reminder--Under the National Provider Identifier Regulation (that was published in the Federal Register on January 23, 2004), a health care provider who is a covered entity, as defined at 45 C.F.R. & 160.103, is required to obtain a National Provider Identifier (NPI) by May 23, 2007. To apply online go here.

Announcing the new CMS web page dedicated to providing all the latest NPI news for Fee-For-Service (FFS) Medicare providers! Visit on the web. While this page is dedicated to the FFS community, it contains helpful information and links that may benefit all health care providers.

What three blogs do you go to first?

While scanning the growing number of blog/RSS feeds that sit in my RSS reader I came across a blog post by The Greatest American Lawyer that made me stop and think.

The question, "What three blogs do I you go to first?"

Hmmmm. . . Sometimes it depends on my mood or whether I am at work or play. However, right now these blogs are in cycle. For the sake of interest and experimentation I'd be interested to see the top 3 of other bloggers. Please add a post to your blog highlighting your top three.

Here are my top three (in no particular order):
Scobliezer
Hospital Impact
Bag & Baggage

I also find it interesting to see what others have in there "my feeds" section of bloglines if you use the public feature. I have found some great blogs to follow by seeing what other bloggers are monitoring. For those of you who use bloglines you can view feeds for a particular person by clicking on the "___ subscribers" button at the top of the page when viewing a particular blog thru bloglines. You can then click on a particular subscriber to pull up their "my feeds" list.

Who is Supreme Court Nominee, Samuel A. Alito, Jr.?

For background information on Supreme Court nominee,
Samual Alito, be sure to check out the evolving article on Wikipedia. Wikipedia is one of my favorite resources for new and old information.

If you are not familiar with Wikipedia -- it is a living, breathing, real time encylopedia and dictionary. It has live links and allows the reader constantly edit/change the content. Look here if you want to know more about how Wikipedia works.

Blawg Review #30: Denise Howell'in at the Moon has manyTricks & Treats

One of my favorite law blogs, hosted by Denise Howell, has let the Blawg Review black cat out of the bag and baggage.

More on Patient Blogging

An interesting item came across my desk the other day highlighting the use of blogs by patients to keep family and friends informed about their status. I happened to email this information out to a colleague and thought it would also make an interesting post. I previously mentioned hospital sponsored patient blogs in a previous post.

The Charleston Gazette's Statehouse Beat written by Phil Kabler had a blog related item. The Statehouse Beat covers state government and legislative happenings. The news items was about the daughter of a state legislator whose child was diagnosed with CHARGE syndrome and is being treated in Oregon. The reason the daughter started the blog was to keep family and friends informed about the progress of her child. The legislator kept getting questions all the time about the status of his grandson, so he decided to let the political beat column writer know about the blog.

Here is the an excerpt from the article:
For readers wondering how Maxwell McKinley, who was born in June with CHARGE Syndrome is getting along, grandfather David McKinley sends along this blog from Amy McKinley: www.maxupdate.blogspot.com
With the blog, he says, his daughter can keep friends apprised of Maxwell's s progress without having to continually experience the rollercoaster of emotions with each call. Suffice to say, it's an extremely touching account of how young Maxwell fights for life each day with an indomitable spirit that puts the rest of us to shame.

After having read some of the blog posts I also found the blog very touching and it really shows the love of a parent for her child. It also documents the emotional story that most patients and their families face when having to deal with a severe medical condition.

The creative use of blogs in the health care industry is wide open for innovators. Some the ideas and questions that come to mind. Patients and families sharing information about caretreatmentement, especially in the case where there is distance between family members. Patients using blogs to document their own medical history and care. Patients sharing disease specific information. Doctors sharing diagnosis and treatment related information that can be used by other providers. Hospital sponsored blogs for external and internal use. The interplay with privacy issues and the list goes on. Exciting time for the health care industry.

For more on hospital sponsored patient blogs you might want to check out BeSpecific's post and an article in ComputerWorld. Also check out this WSJ article which mentions the some other patient blogs:

Amy Tenderich/ Diabetesmine.com
News, comment and information about dealing with diabetes; links to diabetes-information sites and other diabetes blogs.

Mary Blocksma/Mary's Breast Cancer Blog beaverislandarts.com
Personal musings on breast-cancer treatment, recovery, and emotional and physical issues.

Don Cooley/ prostate-help.blogs.com/prostatehelp
Prostate-cancer survivor's Web log of news and information for prostate-cancer survivors.

High Point Regional Health System www.highpointregional.com/blogs
First-name-only patient blogs on various topics, posted on hospital Web site.

The Cancer Blog http://www.thecancerblog.com/
Information on cancer treatment and recovery from several perspectives, including an ovarian-cancer patient.

Which US Court? Ask Court Links!

A great new map resource called "courtlinks" showing you Circuit by Circuit the U.S. District Court System.

Thanks to Brian Peterson for sharing this resource.

Grand Rounds 2.05

Definitely check out Ground Rounds 2.05 over at Hospital Impact. Great job Tony.

Pig in a Python

Interesting Yahoo News item from USA Today asking the question of "who will take care of an older population?" I once heard the baby boomer population (1946-66) referred to as a pig in a python.

As a result of a the aging baby boomers the health care system and health care funding will have to change. One only has to look at the impact that the baby boomer generation had on higher education to see some of the trends. Most of the discussion today is how we will provide and pay for health care as this group ages. One additional question that is further on the horizon will be once we expand health care to deal with the demand what will happen on the downslope.

For another interesting perspective.

Halloween Treats: But How Much?

Halloween is closely approaching. Some timely advice on how much candy to allow your little goblin to have.

What is the Legal Medical/Health Record?

I often get asked by physicians, hospitals, health information managers and others about what should and should not be included in the "official" patient medical/health chart. Usually this revolves around a recent request to the health care provider by a lawyer to obtain a copy of the medical record or respond to a subpoena.

Traditionally, the medical record was the paper chart, but due to the growth in electronic health record systems, email, the internet, etc. the definition of what is the legal medical record file is much more complex. Further, the HIPAA regulations definition of "protected health information" and the ability of a health care provider to identify the health record by policy as a "designated record set" have caused additional legal questions.

While recently looking at a chart related issue I noticed that the American Health Information Management Association (AHIMA) has published an "Updated: Guidelines for Defining the Legal health Record for Disclosure Purposes."

Thanks to Alan Goldberg for mentioning the updated guidelines on the AHLA HIT listserve.

Tags: HIPAA, medical record, legal, health care, health

iHealthBeat: West Virginia State Journal Looks at Local Health IT Initiatives

The October 20, 2005, edition of iHealthBeat cites a recent West Virginia State Journal article on the effort by West Virginia health care providers to strive for modernization.

HealthcareTomorrow: Instructions not Included

Great post on Healthcare Tomorrow called "Instructions not Included" which highlights the failure of the health care industry to become more consumer oriented. It also mentions a nationwide iniative led by HMFA called "Patient Friendly Billing ProjectCheck."

Check it out.

May It Please The Court Is "On Trial" with Blawg Review #28

Blawg Review #28 is now up for review at May It Please The Court by J. Craig Williams. As I expected from Mr. Williams, this week's edition has great creativity with a trial theme.

Check out the past and future versions of Blawg Review here.

Personal Story on Health Care Provider Discounts for "Cash" Payment

Great personal story by Terry Heaton about his facing surgery without health insurance. His story demonstates something that I think is very important as we try to redirect or stall the skyrocketing increases in health care costs -- patients taking responsibility for understanding the costs of health care, becoming engaged in the payment process and negotiating for health care services.

Third party insurance payors relieve all of us from the worry of "what health care costs" until that time when we don't have health care coverage. As consumers -- we spend more time researching prices and quality on buying the latest electronic product on Amazon than we do when we make health care choices on which doctor to see, what hospital to be admitted to or what home health or DME company to use.

Recent Whistleblower Case May Change Way Relator Fee Calculated

SoundPractice.net recently reported an interesting whistleblower lawsuit coming out of the Disctrict Court of Pennsylvania. In United States ex rel. Nudelman v.International Rehabilitation Associates Inc., E.D. Pa., No. 00-1837, a "whistleblower" asked that the percentage award be based not only on the value of the false claims submitted, but also include the cost of the corporate integrity agreement ("CIA") used to monitor the provider after the settlement.

The District Court held for the whistleblower (commonly referred to as the relator). The Court ruled that the relator's fee could be based on both the value of the False Claims and the cost of the corporate integrity agreement (CIA). This boosted the amount used to calculate the recovery by $1.65M.

I haven't located the case yet - but will plan to post an update if I locate a copy.

FS&B Attorneys Selected for 2006 Best Lawyers in America

Just a quick note to congratulate Tom Flaherty, Don Sensabaugh, Mike Bonasso and Jeff Wakefield on being selected by their peers as four of the Best Lawyers in America in 2006. They will be included in the 2006 edition of The Best Lawyers in America.

According to a press release our firm received from The Best Lawyers in America:

The new 12th edition marks the shift of Best Lawyers from a biennial to an annual publication. Given the speed of changes in the legal marketplace – which grows bigger, more complex, and more fluid every year – such a shift was inevitable. Advances in technology, such as online voting, have now made it possible.

Changes in the new edition show clearly why the shift to annual publication was necessary: 25 new specialties have been added, bringing the total to 57.

Responsiveness to the legal community is one reason why Best Lawyers is widely regarded – by both the profession and the public – as the definitive guide to legal excellence in the United States. Best Lawyers has been featured in The New York Times, Forbes, and The Washington Post, and is the basis of more than 50 “best lawyers” features in regional newspapers and magazines. ALM has chosen our lists to be excerpted in Corporate Counsel and other ALM publications, calling Best Lawyers “the most respected referral list of attorneys in practice.”

The standard for inclusion in Best Lawyers is as rigorous as it has always been. More than 18,500 leading attorneys throughout the country cast more than a million votes on the legal abilities of their colleagues. Because no fee or purchase is required to be listed, inclusion in Best Lawyers is still considered a singular honor.

Best Lawyers' online presence continues to grow. In the past year, the site has received more than a million and a half hits and responded to more than 700,000 requests for lawyer searches. 8,796 listed attorneys, representing 876 law firms, have linked their firm web pages or bios to BestLawyers.com.

Hospital Sues Plaintiff Med-Mal Firm Over HIPAA Issue

My parter Sam Fox alerted me to a New Jersey lawsuit, Community Hospital Group v. Blume Goldfaden, which involves the a HIPAA issue involving the release of pap smear lab reports of non-party patients by JFK Medical Center in Edison, NJ to an attorney at Blume Goldfaden who was representing a client in a pending medical malpractice lawsuit.

According the to article appearing on Law.com:

The dispute began in 2003 when JFK realized it had misread three years of Pap smears for D.B., resulting in a third-year delay in diagnosing her cervical cancer. D.B. hired Blume Goldfaden partner Carol Forte to sue JFK. That suit, D.B. v. Palermo, MID-L-8396-03, is pending.

Concerned over what happened with D.B.'s samples, JFK sent 9,253 slides -- every Pap smear done for three years starting in 2000 -- to an outside laboratory for an independent review. The review uncovered 107 other "discrepancies," or false negatives.

In late November 2003, two women whose tests were misread, referred to as H.D. and N.B., received identical letters from Forte stating she was investigating D.B.'s claim against JFK for misreading samples. The letter went on to say that "it has come to my attention that you may have information about the competency of the pathology department." It asked them to "please contact me to discuss the information you may have."

H.D. and N.B. -- upset that their private medical information had fallen into the hands of a law firm without their consent -- told JFK they wanted answers.

According to the article, later it was learned that the information about the two non-party patients was released to the attorney representing the client in the pending medical malpractice lawsuit against JFK via a cicuitious route. The hospital notified a local gynecologist, Lawrence Seitzman of possible misread pap smears for 3 of his patients. Two of the patients were the H.D. and N.B. Dr. Seitzman met with the third patient and gave her a copy of the letter. The third patient then went to see her attorney about the matter who then sent the letter to Blume Goldfaden for a possible referral.

The article states:

On April 2, 2004, Superior Court Judge Travis Francis dismissed the suit, finding the hospital lacked standing to assert privacy claims on behalf of third parties and that HIPAA creates no private right of action. He ruled that only H.D. and N.B. could sue over the disclosure of their medical records and that the hospital "cannot attempt to use HIPAA as an offensive weapon against possible malpractice suits." But Francis denied Blume Goldfaden's request for fees against JFK for filing a frivolous suit, and both sides appealed.

The case is now on appeal and arguments were heard on September 27 before the NJ Superior Court, Appellate Division. The arguments raised issues about the role of lawyers in protecting protected health information under HIPAA. Amici briefs were filed by the Association of Trial Lawyers of Amarica-NJ and the Trial Attorneys of New Jersey.

This will be an interesting decision to watch. It also illustrates an issue I often address with my health care clients about the unlimited ways in which protected health information can get released from their hospital, facility or medical practice. One of the most important roles a facility privacy officer is to learn how protected health information moves about within the facility, who has access and what third parties do with the information. Without the basic understanding of this information no policies or procedures to protect information can be effective.

New Stark Exception and F&A Safe Harbor for Electronic Health Records

As posted earlier, today's Federal Register contains two new proposed rules on a new Stark exceptions and fraud and abuse safe harbor for technology issues involving electronic prescribing and electronic health record arrangements between providers. Teh new proposed rules are as follows:

(1) Stark Exception for Certain Electronic Prescribing and Electronic Health Records Arrangements. Access the proposed Stark exception.

(2) Fraud and Abuse Safe Harbor for Certain Electronic Prescribing Arrangements have been published in today's Federal Register. Access the proposed fraud and abuse safe harbor.

Thanks to AHLA HIT for the tip on the issuance of the new rules.

Under Promise & Over Deliver: Why Patients Sue Doctors

Interesting reading from the Law & Medicine section of SoundPractice.net.

A couple of my favorite quotes from the post:

Physicians are perceived by the public as over-promising and under-delivering when it comes to health care. Perhaps part of the problem is that we have been so successful at treating some acute conditions, that patients live long enough to suffer from the chronic conditions that we do not treat as effectively.

I think part of the cause of malpractice is the public's need to believe in their doctors, and their disappointment when bad things happen. The lack of transparency and communication between physicians and patients only adds to the size of the gap that devastates the family when outcomes are poor.

Thanks to Doulicia who is editor for Grand Rounds this week for pointing out this post and the information available at SoundPractice.net.

WVHCA, HCA, Putnam General, LifePoint: News Article Swirl Around Hospital Sale and Putnam Medical Malpractice Lawsuit

The certificates of need involving the approval of the sale of 5 HCA hospitals to LifePoint in West Virginia is getting a lot of press over the last couple of days. Much of the press is linked to the pending medical malpractice lawsuits involving Dr. King and Putnam General Hospital.

The AP seems to make a lot of fuss over the connections between the pending medical malpractice lawsuits and the acquisition/certificates of need approval process. The AP even bring the Senator Frist SEC investigation into the article. I don't see the connection. I guess it might be an attempt to make CON regulatory law reporting more exciting.

HHS Awards Contracts to Advance Nationwide Interoperable HIT

HHS Press Release - October 6, 2005:
The Department of Health and Human Services (HHS) today awarded three contracts totaling $17.5 million to public-private groups that will accelerate the adoption of health information technology (health IT) and the secure portability of health information across the U.S. These groups will form strategic partnerships to develop the building blocks necessary for achieving the President’s goal of widespread adoption of interoperable electronic health records (EHR) within 10 years.

Anonymous Blogger Remains Anonymous

Anonymous blogger remains anonymous!

I haven't read the full decision issued by the Delaware Supreme Court in the matter of John Doe No. 1 v. Patrick Cahill and Julia Cahill, No. 266 (October 5, 2005). You can check out the latest news articles on the decision here. Following is an excerpt from a summary appearing on Yahoo news. The article states:

"In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News."

FRCA, FACTA, GLBA and the California Courts

Craig Williams over at May It Please The Court reports on a recent privacy decision involving what the court refers to as the convergence of the Fair Credit Reporting Act (FCRA) as amended by the Fair and Accurate Credit Transactions Act of 2003(FACTA), Gramm Leach Bliley Act (GLBA) and California's Financial Information Privacy Act.

All of these legislative/regulatory acts were created to protect the treatment of personal consumer information and how such information can and can't be used by financial service businesses. As stated by the court,

"these four legislative enactments generally seek to govern the treatment of personal information albeit to varying degrees. In FCRA, FACTA and GLBA, Congress created a statutory framework that seeks tostrike a balance between providing citizens affordable financial services while protecting them against invasions of privacy and the misuse of personal information."

California's Financial Information Privacy Act was passed to provide the citizens of California with more stringent protections than those provided by FCRA (nka FACTA) and GLBA.

The 9th Circuit previously held that federal laws preempted the more stringent state laws. Craig indicates that the 9th Circuit is unlikely to change its position if California's Attorney General decides to appeal the decision. As I recall one of the the reasons FCRA was amended to the new acronym FACTA was because the federal preemption provisions under FCRA were going to expire.

Check out the press release issued by the American Bankers Association.

HHS Announces Accelerating the Use of E-prescribing and Electronic Health Records

Today HHS announced the new regulations that are intended to support the adoption of e-prescribing and electronic health records. The press release states:

The Centers for Medicare and Medicaid Services (CMS) and the HHS Office of Inspector General (OIG) proposed rules announced today represent a unified effort to advance the goal of improving the health care of Medicare beneficiaries and all Americans through the use of e-prescribing and electronic health records systems.

CMS announced a new regulatory proposal that would create exceptions to the “physician self-referral” law. Currently, physicians in Medicare are prohibited from referring Medicare patients for certain health services to health care entities with which the physician has a financial relationship, unless an exception applies. Health care entities are also not allowed to bill Medicare for services that are furnished as a result of a prohibited referral.

These new proposals would allow hospitals and certain health care organizations to furnish hardware, software, and related training services to physicians for e-prescribing and electronic health records, particularly when the support involves systems that are “interoperable” and thus can exchange information effectively and securely among health care providers.

In a parallel action, the OIG announced proposed safe harbors for arrangements involving the donation of technology for e-prescribing and electronic health records. Arrangements for the provision of items and services that meet the requirements of the safe harbors would be exempt from enforcement action under the Federal anti-kickback statute.

Stay tuned! The proposed rules will be published in the October 5th edition of the Federal Register. Public comments will be accepted for 60 days.

Thanks to the HIPAA Blog for pointing me to the press release.

UPDATE (10/6/05): Today I received notice that the OIG posted a pre-publication copy of the proposed rule for a Safe Harbor for Certain Electronic Prescribing Arrangements Under the Anti-Kickback Statute. The official version is scheduled for publication in the Federal Register on Tuesday, October 11, 2005.

To get to the proposed rule point your browser here: http://www.oig.hhs.gov/authorities/docs/05/100605E-PrescriberuleC.pdf

HIPAA Preemption Decision from the Louisiana Court of Appeals Decision

A State of Louisiana Court of Appeals First Circuit Decision looks at HIPAA preemption involving the state law process for obtaining medical and health records via subpeona under a criminal matter. The September 23, 2005 decision in State of Louisiana v. Virginia Downes, challenged the validity of a district attorney subpoena issued to obtained medical records and looks at whether or not the Administrative Simplification provisions under HIPAA preempt Louisiana's laws related to obtaining a lawful subpeona under La. R.S. 13:3715.1(B). The courts finds that it would not be impossible to comply with both federal (HIPAA) and state law requirements for obtaining records via subpoena, thus, no preemption.

Thanks to Alan Goldberg and the AHLA HIT listserve for the tip on this new decision. While looking for a link to Alan's webpage I also noticed his new blog called HealthLawyer.

Professor Elkins Gets a Mention on BlawgReview

Professor Jim Elkins’ “Strangers to Us All: Lawyers and Poetry” gets a mention on BlawgReview. Professor Elkins is a professor at the West Virginia University’s College of Law.

Dilbert's Look at Work Blogs

Blogging while at work gets a look by Dilbert. Blogging and blog related issues are quickly becoming the latest employment related legal issue - following on the heels of email and internet usage employment policies. If your company hasn't revised your employee handbook to include a blog policy you might want to consider adding a new policy.

Thanks to Scoble for the tip on today's Dilbert.

West Virginia Supreme Court Arguments on Certificate of Need Issues

Health care lawyers in West Virginia will be watching two appeals involving the certificate of need law being argued before the Supreme Court of Appeals of West Virginia this week. The West Virginia Health Care Authority is responsible for hearing and issuing certificate of need decisions to health care providers.

The briefs for the two arguments have now been posted on the Supreme Court of Appeals website and you can watch and hear the arguments via the court's webcast on October 4 & 5.

On October 4, 2005 the Supreme Court will hear the matter of Family Medical Imaging, LLC, et al. v. WV Health Care Authority, et al. This is an appeal from an Order from the Raleigh County Circuit Court upholding the WV Healthcare Authorities decision denying the petitioner's Certificate of Need for the use of an ultrasound machine. The Court affirmed the HCA's denial and the petitioners are seeking a reversal and approval for their application.

The briefs filed in this matter, including an amicus brief filed by the West Virginia Hospital Association and an intervenor brief filed by Raliegh General Hospital, can be found here.

On October 5, 2005, the Supreme Court will hear the matter of Fairmont General Hospital, Inc. v. WV Health Care Authority, et al. AND Fairmont General Hospital, Inc. v. WV Health Care Authority, et al. United Hospital Center, Inc. and West Virginia United Health System, Inc., and the West Virginia Health Care Authority, file separate petitions for appeal which have been consolidated. They appeal the Circuit Court's order reversing the Health Care Authority's decision to grant a certificate of need for the building of a replacement United Hospital eight miles from its present location.

The briefs filed in this matter can be found here.

HIPAA Administrative Simplification: Electronic Health Care Claims Attachment Proposed Rule Issued September 23, 2005

This in from Stanley Nachimson, Senior Technical Advisor, Office of Electronic Health Standards and Services at Centers for Medicare and Medicaid Services (CMS):

On September 23, 2005, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) adopts two new X12 transaction standards, an HL7 messaging standard to carry clinical information in the response transaction, and HL7 specifications for the content or “questions” that may be asked in each of the six attachment types. This proposed rule also adopts the Logical Observation Identifiers Names and Codes (LOINC) as a new HIPAA code set to be used to identify the questions and answers (attachment information). The standards allow for the transmission of structured or coded data, as well as images and text.

The proposed rule solicits comments from the affected industries on several key issues, including the adoption of LOINC and its use for the HIPAA transactions, the appropriateness of the six proposed attachment types, business requirements for attachments that would accompany the original claim (unsolicited attachments), and the cost-benefit implications of adopting this transaction set.

The public comment period is open until November 22, 2005.

Google Blog Search

If you are into blogs be sure to check out the new Google blog search which is now out in beta.

More Katrina Resource Information for Health Care Providers

The American Health Lawyers Assocation has created a special section on its website featuring additional Hurricane Katrina resource materials and links for health care providers, including federal and state government announcements and actions and insurer information.

Katrina Relief Effort: Information for Health Care Providers

Garlo Ward, a Texas health care law firm, has posted information about how Texas is handling some of the initial health care legal questions that have come up as a result of the number of individuals leaving Louisiana due to Katrina. Many of those individauls displaced by the hurricane are in need of community based health care related services, such as intermediate care facilities, home and community care, etc.

The post includes a copy of any email issued by the Private Providers Association of Texas (PPAT), the association representing for-profit and non-profit health care providers who provide community based services to those with mental retardation and other developmental disability.

Over the last week I have been impressed by the prompt response of Texas. However, Texas appears to be nearing capacity after having accepted over 220,000 hurricane victims.

Tonight's news in West Virginia reported the first arrival of displaced Louisiana residents via the West Virginia's 130th Airlift Wing. Other states are sure to follow and receive residents from Louisiana, many who will need continuing health care services. Many providers, associations, patients, etc. will have transfer of service and reimbursement related questions over the coming days and weeks.

Over the last few days I have had a number of conversations about how the transfer of hospital, nursing home, intermediate care and other types of health services will be handled from a reimbursement standard. CMS and Medicare have a Hurricane Katrina Information page, including a Q&A section that should be a starting point for information. It appears that CMS has issued a general waiver under Section 1135 of the SSA allowing HHS to waive Medicare, Medicaid and State CHIP requirements in time of national crisis. Following is a summary from the CMS information page:

Signed Waiver Under Section 1135 of the Social Security Act 9/1/2005
Section 1135 of the Social Security Act allows the Secretary of Health and Human Services to waive or modify certain Medicare, Medicaid, or State Children's Health Insurance Program requirements in order to protect the public health and welfare in times of national crisis. On Wednesday August 31, 2005 Secretary Levitt notified the Congress that he was invoking this authority, as a consequence of Hurricane Katrina, in order to protect the health and welfare of the public in areas impacted by this crisis. CMS is taking action consistent with this authority to ensure that the people in these areas receive all necessary health care services.