Tuesday, January 30, 2007

Thoughts On Transforming Health Care In West Virginia

Included in the handout materials at last week's WVHIN board meeting was a copy of a article appearing in Health Care's Most Wired Magazine by fellow board member, Sarah Chouinard, M.D.

The article, Transforming Health Care In West Virginia, provides a glimpse of the efforts to improve the health status of rural West Virginia residents in Clay County, West Virginia (on West Virginia's poorest counties) where Dr. Chouinard practices. The article mentions the West Virginia Medicaid Redesign Program, which builds on a 2005 demo project based on a modified version of the Chronic Care Model developed by Ed Wagner, M.D. Dr. Chouindard was involved in the 2005 demo project at her facility, Primary Care Systems in Clay, West Virginia.

The article provides a "real life" example of what one physician (here in West Virginia) is doing to create and change the focus of health care to a preventative model with a patient-centered focus and incorporating technology in the process.

Dr. Chouinard and I had some initial discussion after the board meeting about the project and I'm interested to learn more. I'm also interested to explore with Dr. Chouinard and others how we can team up with resources like those of U.S. Preventive Medicine and Revolution Health to offer even more to those who are most disadvantaged in a health system that fails to focus on prevention and maintenance of chronic conditions.

As Nick Jacobs says, "we are spending 2.2 trillion dollars this year on health care in the United States and only about 4% of those monies are being spent on preventative medicine." I don't know the "chance of diabetes" stats for West Virginia (or Clay County) but I suspect they are much higher than those cited by Nick.

The article is a must read for those interested in seeing a change in the approach we take to health care in the United States and a need to refocus the system to pay for prevention.

(Photo above, courtesy of Flickr, shows a rustic (rusting) bridge leading into Clay WV. Seemed like an appropriate visual analogy since we are talking about prevention)

WVHIN Board Meeting (January 2007)

On Friday the board of the West Virginia Health Information Network (WVHIN) met and covered a variety of topics and continued its efforts to coordinate the creation of a successfully integrated health information system. (Note: The WVHIN board is still in the search phase for an Executive Director).

Topics of the board included the following:

1. A status report on the submission of Interim Report of the West Virginia Solutions Group under Health Information and Security and Privacy Collaborative (HISPC). A motion was made and passed to integrate and continue to carry on the HISPC project work under the auspices of the WVHIN after the project grant is completed in 2007.

2. Update and approval of the WVHIN Bylaws, including a letter from the State Ethics Commission approving the form and substance of the Bylaws and indicating that the Bylaws meet the open meeting law requirements in West Virginia.

3. An update on the pending e-prescribing legislation (Senate Bill 69) introduced by Governor Manchin to address the current restrictions on allowing e-prescribing by physician and pharmacists in West Virginia. There were also a number of e-prescribing presentations providing the details of how such systems will work and current statistics on e-prescribing in West Virginia and nationally.

4. An update on the FCC Broadband Grant application process.

Included in the handout materials for the board meeting was a copy of a recent article appearing in Health Care's Most Wired Magazine by my fellow board member, Sarah Chouinard, M.D. Interesting article (see next post).

An Example of Transparency In Health Care

Fard Johnmar and I today had a discussion about the post, Running a hospital: Do I get paid too much?, by Paul Levy, CEO at Beth Israel Deaconness Medical Center in Boston. Fard mentioned that this is a great example of transparency in health care (Note: Mr. Levy raises an interesting note in the comments -- I cited to the transparency summary to give readers unfamiliar with the concept some background. Here is another interesting read on transparency that I found when looking for a link to "transparency in health care.)

I've not met Mr. Levy and only know him through his online blogging persona, but I'm impressed with his candid post and willingness to discuss the topic. If I was involved with the hiring of a CEO for one of my hospital clients I'd look for a person with Mr. Levy's communication skills. I'll be interested to check his comments section.

Monday, January 29, 2007

New WV Blog: Lincoln Walks At Midnight

A new West Virginia blog, courtesy of Oncee, who has the uncanny ability to sniff out and spot Mslogs (Mountain State Blogs).

Lawrence Messina, who covers the Statehouse beat for the AP, is now blogging at Lincoln Walks At Midnight: A Just-The-Facts Approach to Politics and Government in the Moutain State of West Virginia. Great URL: MyWVHome.

On behalf of the Wild and Wonderful bloggers of the Mountain State -- Welcome!

Sunday, January 28, 2007

Bootstrapping HIPAA Into Breach of Privacy Claim

Jeff Drummond over at the HIPAA Blog reports on a recent North Carolina Court of Appeals decision in Acosta v. Byrum indicating that a private cause of action is not allowed under HIPAA, but that a HIPAA breach is evidence that the standard of care was not met in a common law claim for breach of privacy and negligent infliction of emotional distress.

The decision of the Court states:
. . . Plaintiff contends that no claim for an alleged HIPAA violation was made and therefore dismissal on the grounds that HIPAA does not grant an individual a private cause of action was improper. We agree.

In her complaint, plaintiff states that when Dr. Faber provided his medical access code to Byrum, Dr. Faber violated the rules and regulations established by HIPAA. This allegation does not state a cause of action under HIPAA. Rather, plaintiff cites to HIPAA as evidence of the appropriate standard of care, a necessary element of negligence. Since plaintiff made no HIPAA claim, HIPAA is inapplicable beyond providing evidence of the duty of care owed by Dr. Faber with regards to the privacy of plaintiff's medical records. . .
UPDATE: An interesting followup post on federal preemption under HIPAA and use of HIPAA in intentional infliction of emotional distress type cases prompted by a question from John Dascoli, a West Virginia attorney at The Segal Law Firm and fellow law school classmate of mine.
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Saturday, January 20, 2007

WVHIN Executive Director Wanted

In 2006 I was appointed to serve a four year term as a Board Member of the new West Virginia Health Information Network (WVHIN). The WVHIN was created in 2006 to help guide the state's efforts and oversee the implementation of a private/public interoperable health information system for West Virginia.

Last week I was speaking with Sallie Hunt, Chief Privacy Officer for the State of West Virginia, who has been instrumental in overseeing the initial activities and assisting with the startup of the WVHIN. She advised that they are now in the process of searching for a full time Executive Director. If you are interested in applying for the position or know of someone who might be interested, please contact Sallie Hunt at (304) 558-7000 Ext. 252.

Sallie provided me with the following summary of the Executive Director job description being used by the search committee.

The Executive Director (ED) is the primary executive officer of the WVHIN, reporting to the WVHIN Board of Directors. As such, the incumbent is responsible for assisting the Board to develop the policies and procedures of the Health Information Network (the WVHIN), for implementing these policies and procedures, and for initiating a periodic review of these policies and procedures.

The ED is responsible for the overall administration and management of the WVHIN. This responsibility includes planning and evaluation, policy development and administration, personnel and fiscal management, public education, provider recruitment, business model development, and media and public relations. The successful candidate will have excellent problem-solving skills, be a self-starter, have an entrepreneurial spirit, and be able to function with minimal supervision.

This position will be the "public face" of the WVHIN and, as such, the incumbent will have to have strong speaking, presentation development and writing skills, with the ability to convey highly technical issues in a clear and compelling manner. The incumbent will have to interact regularly with a wide variety of audiences—healthcare providers, potential and existing funders, policy-makers and executive leaders, consumers, and vendors—and will need the skill to drive and balance a multi-stakeholder constituency group.

The ED will be responsible for developing, maintaining, and engaging in a relationship with the vendor directly providing the technology services of the WVHIN. Thus, the incumbent should have contract management skills and preferably the ability to manage a highly technology-dependent project.

Finally, the ED will have the personal qualities that enable him/her to work comfortably in an environment characterized by significant uncertainty. With the possibility of the governance structure changing and ongoing fund development needs, the ED will spend significant time and energy assisting the Board of Directors and other state stakeholders to arrive at decisions that assure the WVHIN a clear strategic direction and long-term viability. The incumbent must be comfortable working with diverse organizations and in maintaining a balance among competing interests. This balance sometimes requires making difficult decisions to keep the project on track.

Thursday, January 18, 2007

Steve's Blog at Revolution Health and Wisdom of Crowd

While exploring Revolution Health last week I happened upon Steve Case's blog on the site and signed up for the new post alert feature since the RSS feature has not been fully activated. A recent post by Case caught my attention because is addresses some things that I have been thinking about as I prepare a presentation on Healthcare Blogging and Web 2.0 Health 2.0 for the AHLA Hospital and Health System program next month. The concept I've been thinking about is the power of consumer involvement in health care and what Case calls "wisdom of crowds".

Steve'post, A waiting room comes to life, provides a real life example of what patients, their families and friends (and even groups of strangers) go through everyday -- trying to better understand the complexity of (and often being frustrated by) the health care and insurance system.

Excerpt from Case's post:
Last week I spent a couple hours in a hospital waiting room. It was nothing urgent, just a planned procedure for somebody in my family. I expected to wait, so brought some things to read.

Initially, there was one other person sitting nearby, reading the newspaper. A few minutes later another person sat down. Then, not long after, a third.

The new arrival seemed to want to chat, so leaned over to the woman sitting near her and asked why she was there . . .

Suddenly, these three woman, who clearly had never met each other before, started getting into specifics - sharing details about their medical situations (or, in one case, their husbands situation, as he was having a procedure done while she waited).

They compared perspectives on doctors, treatment options, insurance plans, information they had gleaned from various sources - all related to the health issues they were wrestling with. Indeed, two of them started making notes, writing down some of the ideas and insights they heard from the others. . .

Watching this from afar reminded me of the power that comes from people engaging with each other, particularly when it comes to health. . .

Tonight my wife and I had a similar experience -- probably not unlike many people across the U.S. after getting the kids to sleep. We sat down to go over outstanding bills from providers, insurance premiums, health reimbursement account statements and EOBs trying to make sense of it all.

Two and 1/2 hours later we got through some of the issues that we needed to better understand. What's frightening to me is that its difficult for a health care lawyer and his lawyer spouse to understand the complexity of health care -- yet alone those across the country who are less educated, older, sicker or otherwise at the mercy of the health care and insurance system.

We would have liked to have the "wisdom of others" available tonight to help us better understand some of the things we tried to figure out.

As I reflect on 2006 our family has become more engaged in understanding our health coverage and attempt to oversee the process and manage the cost. The need to do this was largely driven by the fact that the benefits of our health coverage has been reduced over the last couple of years requiring us to now pay more of the cost associated with care/treatment. This along with the introduction of a health reimbursement account have made us more aware of the costs of care. I suspect this is a trend that is not dissimilar to many others in the country. This might be one of the motivating factors that comes into play as companies, like Revolution Health, and others try to engage the public on their health care.

NEPSI: National E-Prescribing Initiative

Over the last few months I've been involved in a project to understand the barriers to e-prescribing in West Virginia (spin off of HISPC project) and assist with developing legislation to modify current West Virginia law and reduce current restrictions on e-prescribing in West Virginia.

Today I received notice from an AHLA colleague announcing the National ePrescribing Patient Safety Initiative (NEPSI). I was not previously aware of the initiative. A large group of partners, including technology and health care companies, have come together to provide free electronic e-prescribing access to every U.S. physician through a web-based e-prescribing system.

I'll be interested in reading more about the initiative as it develops. For more information on the initiative check out this Google search and Google news search. iHealthBeat also has a good summary of the new initiative.

Sunday, January 14, 2007

Health 2.0: A Personal Tour Of Revolution Health

Revolution Health, launched its preview version in December 2006, and is scheduled for a mid January 2007 public launch. Over the holidays I took the opportunity to register as a beta user and try out some of the features and tools. Over the last couple of weeks I've continued to explore the service it offers.

Overall I'm impressed with the content, quality and screen appeal of the features. The question remains whether consumers will flock to and regularly use such a site. What will make consumers start using such tools? Will it require financial incentives? Will the tipping point be when health care premiums skyrocket to a point where there is a critical mass of uninsured and being healthly become a financial incentive? How do we make individuals take a more active role in prevention under the current system? What type of consumer "revolution" is needed for business models like Revolution Health to be successful, especially among the sickest, oldest and poorest populations? I'd be interested to hear comments on these question and any other thoughts.

For those of you who are new to Revolution Health. It is the brainchild of founder, Steve Case, co-founder of former CEO of America Online (Steve's Revolution Health blog). Revolution Health says its mission is to give consumers more choice and control over their health care.

The health portal allow the user to do a variety of things: create your own personal health portfolio, learn about health topics, rating doctors and hospitals, complete online health risk assessment surveys, join community groups on health specific topics, read and comment on health related stories and create your own health care blog.

The health content is divided in sections on Healthy Living and Conditions & Treatments. The content is from resources such as: The Mayo Clinic, Harvard University and The Cleveland Clinic. The website allows users to rate the content they think is best and even submit your own resources from around the web.

Personal Health Portfolio feature allows you to save information about your conditions and treatments for future reference, store basic contact information for all your doctors and health care providers and automatically generate a a form to take with you to your next office visit.

The Tracking feature allows you to track a variety of areas: blood pressure, blood glucose, health weight/BMI, weight loss/gain, pregnancy weight gain, exercise routine, etc. There will also be a
membership section which includes other services such as: personal health counselor, claims advocate and health expense manager.

Throughout the site it allows user participation. You can rate content, providers and facilities. Provide links to other resources. Under the Learn from Others section you can explore the content contirbuted by others, share your own health stories and event create your own health blog. I was especially impressed that the designers had built in RSS capability into the blogs -- but when I tried to add some feeds to Bloglines I could not get them to work. I'm suspecting that this feature is just not fully operational yet in the beta version.

As a lawyer who focuses much of his practice on privacy issues I was particularly interested in Revolution Health's privacy policy, what they collect, how they use the information, what choices users have about the collection of the information and the security measures in place. I also was surprised and impressed to see (after being logging in but non active on the site) that the Revolution Health staff have built in a automatic log out feature as a security measure to protect privacy.

For more background and commentary on Revolution Health check out these blog reviews and resources:

Tuesday, January 09, 2007

HIPAA Security Guidance for Remote Use and Access to Electronic PHI

CMS has issued HIPAA Security Guidance (link to guidance document pdf) for HIPAA covered entities on the risks and possible mitigation strategies for remote use of and access to Protected Health Information (EPHI). The guidance sets forth CMS' minimal compliance expectations for covered entities seeking to safeguard EPHI that is accessed, stored or transported offsite.

This guidance should be useful for those health care facilities and providers to assess current policies and procedures used to maintain the confidentiality of health information.

Monday, January 08, 2007

Attorney-Client Privilege Article

Susan Wong Romaine, an attorney at our firm recently authored an article on attorney-client privilege appearing in the Winter 2006 edition of the Defense Trial Counsel of West Virginia Newsletter. Congratulations to Susan on a great article.

The article, Update on Attorney-Client Privilege, addresses recent changes under the Federal Sentencing Guidelines impacting the policy of federal prosecutors to grant leniency in charging and sentencing for corporation who waive their attorney-client and work product protections. The article also looks at a recent 5th Circuit decision, Willy v. Administrative Review Board, 423 F.3d 483 (5th Cir. 2005), involving a whistleblower lawsuit brought by in-house counsel.

Update on Attorney-Client Privilege

Attorneys typically practice with the confidence that their communications with clients will be protected by the attorney-client privilege. The justification behind this doctrine is fundamental to ensuring attorneys can provide the best possible representation to their clients. Through the protection of the attorney-client privilege, clients can candidly and truthfully confide in their counsel, thus equipping counsel with the necessary knowledge for advising their clients on issues relating to compliance with rules, regulations, the law, and, even more critically, litigation.

Every practicing attorney should know, however, that the attorney client privilege is not as steadfast as it appears. While this doctrine is customarily perceived as a steel-enforced shield from the disclosure of sensitive information, recent developments surrounding the treatment of the attorney-client privilege could lead one to think the shield is actually made of paper. For example, the demise of Enron and birth of Sarbanes-Oxley have sparked practices that have begun to wear away at the safe haven that corporations and attorneys alike have become dependent on for keeping confidential information strictly in the boardroom. Until recently, federal policies encouraged prosecutors to grant leniency in charging and sentencing decisions for corporations that waive their attorney-client and work product protections. Although the United States Sentencing Committee recently voted to delete any such policy from its Sentencing Guidelines, the invasion into protected attorney-client territory is creeping into other realms. For example, proposed Federal Rule of Evidence 502, if enacted, would authorize the disclosure of privileged information to government agencies, but not to private parties. Also, taking into account the recent amendments to the Federal Rules of Civil Procedure which provide for discovery in the electronic sphere, attorneys will have to familiarize themselves with what is and is not privileged in the worlds of metadata, e-mail, and the internet.

While some of the new ways that the attorney-client privilege is being manipulated will present new challenges for attorneys, they are not at a complete disadvantage. Last year, the Fifth Circuit decided that a document protected by the attorney-client privilege was admissible as evidence in a case where a former in-house lawyer sued his former employer for violation of federal whistleblower laws. Willy v. Administrative Review Board, 423 F.3d 483 (5th Cir. 2005). Under the precedent set by this ruling, attorneys have an opportunity to waive the attorney-client privilege. This is significant considering that waiver of the privilege is typically only available to clients.

While changes in the treatment of the attorney-client privilege are certain to continue, attorneys should remember these tips for client communications that likely will not change anytime soon:

  • Always address attorney-client privilege issues with a client in the initial phase of your relationship. While corporate representatives these days often have a strong knowledge of the legal system, they may not fully understand the intricacies of the attorney-client privilege and how innocent actions may result in a waiver.
  • Remember, in the context of a corporation, the attorney-client privilege can be subject to waiver by anyone in management, including officers or directors
    • “New” management can waive the privilege of protecting information that was created when the “old” management was in place. See Commodity Future Trading Comm’n v. Weintraub, 471 U.S. 343 (1985)
  • The attorney-client privilege can extend to non-lawyers whose involvement in a matter facilitates an attorney’s understanding of his or her client’s situation.
    • If you obtain an expert for help in a matter, prepare an engagement letter outlining the expert’s expected role. The letter should state that all communications between the expert and the lawyer and client are incidental to providing legal services and intended to be confidential. The expert should also be advised not to communicate with a client without the lawyer’s direction. See U.S. v. Kovel, 296 F.2d 918 (2nd Cir. 1961).
  • Counsel and clients alike should ensure all records of letters, notes, and conference calls between each other are kept in a secure, marked file and labeled “private” or “confidential attorney-client communication.” Without these simple precautions, a court could find that adequate steps were not taken to preserve the privilege.
By remembering some of these fundamental guidelines for interactions with your clients, you should be equipped to face any new change to the attorney-client privilege.

Health 2.0: EMR Innovation from the ground up

How about this for EMR GMR innovation. Graham Walker, a Stanford med student, has built his own web 2.0 mock up of a better EMR interface. A great example of what web 2.0 might bring to health care in 2007 and beyond. I'll be interested to read the comments from physicians and others who have to work with EMR software on a day to day basis.

Watch the screencast demo and then test it out for yourself.

Courtesy of Matthew Holt at the The Health Care Blog.

Friday, January 05, 2007

Good Things Happen When You Do Good

Lately I haven't had time to blog much because of a busy work schedule and the holidays. Again too much to blog about and too little time. However, I couldn't pass this up.

A simple lesson from the Hero of Harlem that has universal application. Quoting Mr. Autrey, "Good things happen when you do good." Such a powerful and simple message.

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