Friday, December 30, 2005

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.

Thursday, December 29, 2005

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.

Saturday, December 24, 2005

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.

Thursday, December 22, 2005

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 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.

Tuesday, December 20, 2005

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.

Monday, December 19, 2005

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.

Friday, December 16, 2005

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."
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Thursday, December 15, 2005

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.

Wednesday, December 14, 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?

Monday, December 12, 2005

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.