Monday, October 31, 2005

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):
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.

Wednesday, October 26, 2005

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:
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/
News, comment and information about dealing with diabetes; links to diabetes-information sites and other diabetes blogs.

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

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

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

The Cancer Blog
Information on cancer treatment and recovery from several perspectives, including an ovarian-cancer patient.

Tuesday, October 25, 2005

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.

Sunday, October 23, 2005

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.

Thursday, October 20, 2005

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.

Tuesday, October 18, 2005

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.

Monday, October 17, 2005

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 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.

Thursday, October 13, 2005

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

Wednesday, October 12, 2005

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

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.

Tuesday, October 11, 2005

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

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

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.

Thursday, October 06, 2005

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."

Wednesday, October 05, 2005

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:

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.

Sunday, October 02, 2005

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.