West Virginia Health Improvement Institute

The West Virginia Health Improvement Institute has launched its website that provides an overview of the efforts to improve the health care system in West Virginia.

The mission of the Institute is to assist with the execution of the strategies outlined in the Transformation Grants awarded by the Centers for Medicare and Medicaid. One main focus is on migrating primary care in West Virginia to the medical home model. The "About WVHII" has more about the Institute - what it is? why it's needed? its structure? etc.

As a part of the project I am chairing one of the four workgroups, the work group on the Adoption of Health Information Technology. The other work groups are:

• Measurement/Reporting/Reimbursement
• Provider Outreach and Education
• Self Management

The Adoption of Health Information Technology work group's efforts will be focused on understanding what health information technology is currently being used successfully by providers in West Virginia. We will be looking at opportunities to innovate and participate in projects that help to accelerate the adoption of technology, including that which supports the medical home model.

For more information on our work group and the other three work groups - check out the Workgroups section.

Creatively Living In West Virginia

Are you creative, looking for a place to be creative or have a need to find others who create?

Come experience all that West Virginia has to offer. For a taste of the creative community plan to attend the Create West Virginia Conference 2008. More on Create WV.

Watch the instructional/art video of creating Create WV Conference by KD Lett.

Create West Virginia Conference 2008
October 20-22, 2008
Snowshoe Mountain Resort
Snowshoe, WV
Register Here

What is the focus of the conference?

West Virginia is in a state of creation! Communities in every pocket of West Virginia are embracing new opportunities brought about by the New Economy.

Hear how communities just like yours are attracting young entrepreneurs, artists, scientists, technologists and others who are adding quality and growth to our state. Learn how improving your community’s quality of place, access to and adoption of technology, embracing tolerance and diversity for new people and ideas, and innovative education and talent development are opening new opportunities for everyone in West Virginia!

Check out the full agenda, speakers, etc. here. More on Create WV via Create WV Facebook Group.

The Use of Arbitration Agreements in Health Care

Ryan Brown, a health care attorney at Flaherty, Sensabaugh & Bonasso, PLLC who I regularly work with recently put together information on the use of arbitration agreements in the health care setting. More and more these types of agreements are being used as a way to avoid unnecessary litigation and provide an alternative venue to resolve health care conflicts between provider and patient.

Following are some excerpts about the topic from Ryan:

As many health care providers know all too well, disputes can often arise between a patient and a health care provider. Many times, the dispute can result in litigation in which a jury will be given the ultimate responsibility of resolving the conflict. However, courts are not the only venue for resolving these conflicts. An ever increasing number of health care providers, especially long-term care facilities, are looking at arbitration as an alternative to the traditional litigation system.

Health care providers in favor of arbitrating disputes point to benefits such as the ability to select an arbitrator who is an expert in the appropriate field, the ability to keep the dispute private, reduced time frame for resolving disputes, and the finality of the decision. Arbitration advocates also point out that arbitration is less expensive than the traditional litigation system.

Over the last decade, many state courts have upheld arbitration agreements that were signed prior to the patient receiving treatment by a physician, hospital, or nursing home. Additionally, courts have held that these arbitration agreements are enforceable not only to the patient, but also any potential beneficiaries of the patient’s estate.

In order to maintain the enforceability of arbitration agreements, a health care provider should strictly comply with the Federal Arbitration Act, state arbitration statutes, and state contract law. Additionally, health care providers should be mindful to carefully draft arbitration agreements and establish proper procedures for presenting arbitration agreements to patients so that courts do not determine the arbitration agreements to be unenforceable.

Ryan A. Brown concentrates his practice on providing legal counsel to a variety of health care providers in medical professional liability actions. Mr. Brown’s experience in medical malpractice cases includes defending nursing homes, hospitals, physicians, and nurses in all phases of litigation. Apart from his health care litigation practice, Mr. Brown provides legal counsel to health care providers and corporations involved in acquisitions and joint ventures.

Contact Ryan if you are interesting in learning more about the use of arbitration in the health care setting and how to include arbitration provisions and protections in your health care agreements.

Medpedia: The Medicine Wiki

The Medpedia project has been launched and will be the worlds largest collaborative online encyclopedia of medicine. Think of it as the Wikipedia for physicians and others looking for health information. However, Medpedia will have a more focused approach and utilize more authoritative and trustworthy authors. Access to contribute will be limited to authoritative sources -- such as physicians, medical schools and other health care organizations.

To learn more about Medpedia check out the press release , site preview and this summary by Jane Sarasohn-Kahn.

Providence Health & Services Agrees To $100,000 Voluntary Settlement of Potential HIPAA Violation

The U.S. Department of Health and Human Services (HHS) issued a press release last Thursday that it had entered into a Resolution Agreement with Seattle-based Providence Heath & ServicesHealth Insurance Portability and Accountability Act of 1996 (HIPAA) privacy and security rules. The agreement calls for Providence to pay a voluntary settlement of $100,000 and implement a detailed corrective action plan to ensure against future theft or loss of electronic patient health information (ePHI).

The incidents giving rise to the agreement involved two Providence entities, Providence Home and Community Services and Providence Hospice and Home Care. On or about December 30, 2005, data contained on several computer backup disks and tapes was stolen from the unattended car of a Providence employee. In addition to the theft of disks and tapes, several laptop computers were stolen from Providence employees on September 29, 2005, December 7, 2005, February 27, 2006, and March 3, 2006. The laptops, disks and tapes involved in those thefts contained the unencrypted records of more than 386,000 patients of Providence.

Under the terms of the Resolution Agreement, Providence agrees to pay $100,000 by check or electronic funds to HHS. Providence also agrees to enter into and abide by the terms of the Corrective Action Plan that is incorporated into the agreement. The Corrective Action Plan is effective for three years and requires that Providence submit copies of its written policies and procedures to HHS for approval. The Corrective Action Plan outlines nine categories of minimum content required in the policies and procedures. Specifically, the Corrective Action Plan requires that Providence to:

• Conduct a risk assessment of potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI when it is created, received, maintained, used or transmitted off-site;
• Implement a risk management plan that incorporates security measures sufficient to reduce the risks and vulnerabilities identified by the risk assessment to a reasonable and appropriate level; and
• Implement several physical and technical safeguards, including encryption, to ensure the protection of ePHI whenever it is stored or transported off-site by any portable device or electronic media.

The Corrective Action Plan also requires Providence train and monitor its workforce so that all employees are familiar with the policies and procedures. Providence is also required to submit to HHS both a one-time Implementation Report and Annual Reports for three years detailing its compliance to the policies and procedures under the Resolution Agreement.

Initially, HHS officials received more than 30 complaints about the stolen tapes and disks after Providence, pursuant to state notification laws, informed patients of theft. Providence also reported the stolen media to HHS. Providence faced a pending class action lawsuit alleging that the health system failed to safeguard the data as required by HIPAA and violated Oregon’s Unfair Trade Practices Act. The proposed class action was dismissed in November, 2007. The incident was also investigated by the Oregon Attorney General’s Office resulting in an Assurance of Voluntary Compliance Agreement requiring Providence to provide credit monitoring services, credit restoration services, implement security program enhancements and pay $95,764 into the Consumer Protection and Education Revolving Account.

Providence settlement and corrective action plan sends a signal that OCR and CMS are taking a stronger position against privacy and security incidents. The settlement should prompt providers who are required to comply with HIPAA to reexamine their privacy and security policies, procedures, employee training protocols and ongoing monitoring of compliance.

Ohio Court Creates New Tort For Unauthorized Dislcosure of Medical Information

The Ohio Supreme Court issued a recent decision in Hageman v. Southwest General Health Center, et al. Slip Opinion No. 2008-Ohio-3343 (July 9, 2008), holding that an attorney's unauthorized disclosure of medical information obtained during litigation in a separate proceeding could be the basis of a tort claim. The decision in Hageman has implications regarding the waiver of confidentiality and the secondary release of medical information under a standard HIPAA compliant authorization.

The Court in Hageman held:

With these considerations in mind, we hold that when the cloak of confidentiality that applies to medical records is waived for the purposes of litigation, the waiver is limited to that case. An attorney can certainly use medical records obtained lawfully through the discovery process for the purposes of the case at hand—e.g., submitting them to expert witnesses for analysis or introducing them at trial. However, an attorney may be liable to an opposing party for the unauthorized disclosure of that party’s medical information that was obtained through litigation. Thus, as in our decision in Biddle, we conclude that an independent tort exists to provide an injured individual with a remedy for such an action.

In ruling the Court in Hageman ooked to the Court's prior decision in Biddle v. Warren General Hospital, 86 Ohio St.3d 395, 715 N.E. 518 (1999), where the Court found a separate tort for breach of privacy and confidentiality related to medical records.

The Court in Biddle made the following findings:

1. In Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.

2. In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient’s interest in confidentiality.

3. A third party can be held liable for inducing the unauthorized, unprivileged disclosure of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship. To establish liability the plaintiff must prove that (1) the defendant knew or reasonably should have known of the existence of the physician-patient relationship, (2) the defendant intended to induce the physician to disclose information about the patient or the defendant reasonably should have anticipated that his actions would induce the physician to disclose such information, and (3) the defendant did not reasonably believe that the physician could disclose that information to the defendant without violating the duty of confidentiality
that the physician owed the patient.

Ongoing Debate Over Revised Cardiac Catheterization Standards

Larry Messina at Lincoln Walks at Midnight round up of latest links/articles discussing the ongoing debate over the revised certificate of need Cardiac Catheterization standards. The debate has pitted hospital against hospital and resulted in full page ads and a media blitz by both sides in the debate.

Governor Manchin has until Friday (tomorrow) to decide whether he will approve the revised standards developed by the West Virginia Health Care Authority or send them back with recommended modifications.

For more history on the standards with links to the revised standards see my previous post.

UPDATE (7/18/08): This morning Governor Manchin issued the following statement indicating that he is sending the proposed Cardiac Catheterization standards back to the West Virginia Health Care Authority to revise and clarify the "medical transport drive time" language.

The Daily Mail reports on the decision.

STATEMENT FROM THE GOVERNOR ABOUT HEALTH CARE AUTHORITY’S PROPOSED ANGIOPLASTY STANDARDS

Contact: Lara Ramsburg, 304-558-2000

Gov. Joe Manchin today released the following statement about his approval, WITH EXCEPTION, of new West Virginia Health Care Authority rules that would allow some smaller hospitals in the state to perform angioplasty and other cardiac catheterization procedures:

“Any time we’re charged with making a decision that affects the quality of health care for our citizens, it’s a decision that must be carefully considered. In this case, we’ve taken a very close look at data gathered over several years, and a number of other facts about the ability of our hospitals to perform heart angioplasty procedures that have the potential to save hundreds of lives, especially given our state’s high heart disease rates and rural nature.

“Based upon this research, and the recommendation of the Health Care Authority, I am approving the majority of the standards that will give our citizens easier access to important emergency heart procedures; however, I have directed the Health Care Authority to revise the rules as they pertain to elective cardiac catheterization service and return them to me for reconsideration as soon as possible.

“Due to the ambiguity in the term ‘medical transport drive time,’ the current language in the proposed standards does not make it clear as to which hospitals could provide the elective procedure to their patients, so I believe the standards should be written to make sure that the appropriate hospitals are allowed to provide this service, under the strict guidelines and monitoring of the Health Care Authority.

“This decision, in its entirety, is solely based upon one objective – to provide all of our citizens, regardless of their location, access to the best possible medical care in their time of need.”

– Gov. Joe Manchin

WV Business Litigation Blog Hosts Blawg Review #168

This week's edition of Blawg Review is hosted by another West Virginia law blogger, Jeff Mehalic, over at the West Virginia Business Litigation Blog. Check out Blawg Review #168 for the latest in what is happening this week around the legal blogosphere.

Congrats to Jeff on a great job hosting. I appreciate his mentioning a couple of post at the Health Care Law Blog even though I didn't formally submit a post for this edition of Blawg Review.

Happy Bastille Day!

Thinking Outside of the Box While Literally Thinking About the Box

I like to bring original thinking and creative solutions to my health care clients. Although the law is based on precedent, lawyers always need to remain current, thinking ahead and looking for creative solutions.

Today I saw this "lesson in creativity" over at Jeff James' Create West Virginia blog. Thought I would pass it along to my readers. A great example of thinking outside the box - while literally thinking about the box. As Jeff concludes, "what is your square watermelon challenge?"

Also, a great post for lawyers to read is up over at Law21 (first saw the post on Legal OnRamp). The post, "Core competence: 6 new skills now required of lawyers" highlights a new six-pack of skills today's lawyers need to have to be successful and effectively represent their clients. This list applies not just to lawyers -- but those in the health care industry and every other business.

2008Tour De France: Congrats to West Virginian, Will Frischkorn

Congratulations to West Virginian, Will Frischkorn, on his amazing 2nd place finish in today's 3rd Stage of the 2008 Tour de France. The 2nd place finish puts him 3rd overall at 1' 42" back.

Will chronicles his win in his online diary at VeloNews via his Blackberry. Watch his post race interview below.

To learn more about Will and his West Virginia roots check out this excellent ESPN article, Two for the Road, covering Frischkorn and the Garmin-Chipotle team.

West Virginians are cheering all the way to the mountains of France from the Wild and Wonderful hills of West Virginia.

2009 Joint Commission Standards: Now Available Online

The Joint Commission's revised standards are now available online. Additional details about the revisions are available on the Standards Improvement Initiative web page.

The timetable for the release of the new standards, manuals and scoring information is as follows:

• July 2008: Standards will be posted to The Joint Commission website
• August 2008: Scoring information will be posted to the website
• September 2008: Hard copy manuals will be available for Phase 1 programs (ambulatory, hospital, critical access hospital, home care, office-based surgery)
• November 2008: Hard copy manuals will be available for Phase 2 programs (behavioral health care, laboratory services, long term care)*
• November 2008: Single-user access to E-dition (electronic manuals) will be available for all accreditation customers.
  

According to the press release, "the standards will take effect January 1, 2009 and will be placed online to give all health care organizations time to become familiar with the new language, ordering and numbering."

The press release continues by stating:

The changes are part of the Standards Improvement Initiative (SII), launched in 2006 as part of The Joint Commission’s ongoing quality improvement efforts. SII focuses on clarifying standards language, ensuring that standards are program-specific, deleting redundant and nonessential standards, and consolidating similar standards. While no new requirements were added, chapter overviews, standards, introductions, rationales, and elements of performance were designed for ease of use. In the standards reorganization, requirements were split or consolidated. Standards have been renumbered and reordered to allow electronic sorting and to allow the addition of new requirements in the future.

Sermo Physicians Launch Doctors Unite Campaign

Can online social networking by health care professionals be the catalysts for group action and change in the health care industry?

Fellow friend and health blogger,Fard Johnmar,at Healthcare Vox explores this question and more in his post, "Sermo Docs Launch An Online Health Reform Movement: Will It Matter?". A current effort social networking campaign lead by the physicians who participate in the physician-only social network Sermo (think Facebook for doctors).

The online effort - called "Doctors Unite" is an open letter to Americans to highlight the challenges physicians face in delivering appropriate patient care and targets three industry groups: insurance companies, government and malpractice attorneys. The counter currently shows over 5,200 signatures by Sermo physicians. You can click on the tabs "Our Story" and "Why Sermo" for more of the back story on the effort. Also check out the Sermo press release.

This effort will be interesting for those involved in the health care industry to watch develop. Will this be the grassroots social networking effort that drives change from the bottom up?

Healthcare Futures

A welcome to Michael Ryan, FACHE, Chairman of Executive Impact Group, now blogging at Healthcare Futures. Mike is a recognized eHealth, healthcare and social networking pioneer having served as a founder, executive, advisor and board member of numerous companies. For my West Virginia readers, he also has a West Virginia connection that we uncovered when we first met - a connection through my wife who grew up in the Morgantown area .

Healthcare Futures plans to explore health care industry news, trends, and future visions from Michael's view over his career as an observer, executive, advisor, author, innovator, patient and online pioneer.

Check out his recent posts on the need for medical mentors as the baby boomers begin to overwhelm the health care system (what I have previously referred to as the pig in the python) and his post on Health Social Networking, which explores the "niche'ing" of social networking.

If these posts interest you, pick up Healthcare Futures RSS Feed here.

Connecting for Health: Another wave in the shift to consumer controlled health information

The recent announcement of the Common Framework for Networked Personal Health Information by the Connecting for Health collaboration lead by the Markle Foundation is just the next wave in what may be a tidal shift. The tidal shift is one centered on the input, control, ownership, and administration of health information that results from the active and real use of PHRs by consumers.

Those participating in and endorsing the Connecting for Health initiative are a diverse group of health care and technology companies, including Google, Microsoft, Intuit, WebMD, Dossia, BlueCross BlueShield, AARP, AAFP, SureScripts and others.

Whether or not the wave is large enough or just one of many more to come is yet to be determined. The ocean of health information and health information exchange is so fluid these days as we undergo major projects surrounding health information technology at the national level, state level, by HIEs, private industy, etc. For health lawyers - it is a field day for spotting regulatory legal issues and implications. Some of the real life factual scenarios we have been going through as a result of work related to the West Virginia Health Information Network and the NIH2 project remind me of law school exams.

For more insight on the Connecting for Health collaborative check out thoughts by other health care lawyers: Jeff Drummond who talks about the provider "betamax" and "culture fears, David Harlow who raises good questions and applauds the effort to gain public trust. He also looks at whether the recent PHR developments might obviate the need for local HIE infrastructure (with follow up commentary from Micky Tripathi at MAeHC Blog).

Also, Matthew Holt looks at the important health vs. wealth issue underlying the effort and the (non)involvement of the EMR vendors in the process. Jen McCabe Gorman at Health Management Rx makes predications of a possible PHR health app war focused on creating strategic affiliations with health care businesses in an effort to gain market share in the consumer focused PHR space.

Check out the latest developments with a Google News search: "connecting for health".

For another "wave" on the tidal shifting consumer health front from a guy who knows waves - check out Scott Shreeve, M.D.'s post, "Cease and Desist? How about Understand and Resist," at Crossver Health. Scott's post breaks down the issues involved in the attempt by the California and New York Departments of Health to prevent consumers from accessing their own genetic information. More from Matthew Holt.

Another example not unlike the PHR issue, where the current health regulatory structure is not evolving quick enough to satisfy the needs of the consumer focused health technology startups. In this case the consumer focused genetic health 2.0 companies. As Scott ends with, ". . . One intractable issue. Millions of dollars at stake. Tens of millions of people watching. Vegas odds, anyone?"