[ Friday, July 31, 2009 ]
Interesting Dallas near-HIPAA prosecution: Computer
hacker attacked hospital computers, but got caught. "Ghost Exodus" is not charged with violating HIPAA, but rather 2 counts of transmitting a malicious code. Could get 20 years in jail. Don't think he got anything out of it but not-so-cheap thrills.
Jeff [3:07 PM]
Health Reform: this is good, too.
Jeff [10:16 AM]
Off Topic: Taxing the Rich. This isn't really all that far off topic, now that healthcare "reform" is impending. How much of the total federal income tax burden should the rich pay? What percentage of total income tax revenues should come from, say, the top 1% of taxpayers? How much from the top 5%? I think most people would agree that the answer is more than 1% and 5% respectively, but seriously, how much should it be?
The IRS just released the 2007 data, and the top 1% of taxpayers pay just over 40% of all income taxes. The top 5% pay just over 60%. The rest, the 95% of Americans who aren't in the top 5% of incomes in the country, pay less than the top 1% in total income taxes.
Obviously, the rich aren't paying their fair share. We need to tax them more to pay for healthcare "reform" (which we're going to pass to fix the problem that healthcare is too expensive, proving the shopper's maxim that it costs a lot of money to save money).
Jeff [9:57 AM]
[ Thursday, July 30, 2009 ]
Social Media: I've presented a couple of speaking engagements on social media in healthcare marketing in the last couple of months. For those of you still wondering what social media is, how it works, and how it could be helpful,
this is a great (if somewhat profane) slide deck.
Jeff [10:56 AM]
Guest Post: I got a request to allow a guest post, and since I'm lazy enough to let anyone write for me, I decided to allow it. See below:
HIPAA Enforcement – When It Matters and When it Doesn’t
The HIPAA rule that protects patient privacy has been around for some time now, and it has always been in the midst of some controversy or the other. Recently though, there have been instances of people taking it to both the extremes – either blatantly violating it or adhering to it rigidly and incorrectly.
On the one hand, Michael Jackson’s death has only succeeded in bringing out of the woodwork his doctors and nurses who were more than happy to go on television and other forms of media to tell the world all about Jacko and his multiple health problems and addictions. As far as they’re concerned, it’s their big chance at publicity, probably the biggest opportunity of their lives. They don’t seem to care that they’re blatantly violating the HIPAA rule that says doctors, nurses and others in the medical profession are not allowed to share confidential patient records and information with anyone.
Anyone who knows anything about the HIPAA knows that patients must expressly provide their permission for one doctor to send his/her records to another doctor, unless it is for treatment, payment, healthcare operations, or some other allowed purposes and the sending doctor has provided a Notice of Privacy Practices to the patient. So how do these doctors get away with shooting their mouths off just because it puts them in the limelight?
One the other side of the coin though is the mother who found herself unceremoniously escorted out of the dentist’s office even as her eight-year-old son was in the chair waiting to be treated. Apparently the clinic took its HIPAA policies too far when they decided that a little boy’s medical records were meant to be kept private, even from his mother.
While HIPAA applies to minors just as it does to adults, except in extreme circumstances parents (as legal guardians) are considered the “personal representative” of the minor, and have the right to make the right medical decisions for their children. Besides this, there is also the obvious reason parents stay with their children in doctors’ offices – to hold their hands and offer comfort in a potentially frightening situation. And when nurses and doctors cannot understand that there is need for compassion more than privacy in this case, the purpose of HIPAA is not solved at all.
By-line:
This article is written by Kat Sanders, who regularly writes on the topic of ekg tech . Kat welcomes your comments and questions at her email address: katsanders25@gmail.com.
Jeff [10:34 AM]
[ Wednesday, July 29, 2009 ]
Red Flags Update: The FTC has again delayed enforcement of the Red Flags Rule, which requires financial institutions and other "creditors" to establish identity theft protection programs to (i) identify "red flags" that would indicate that a customer or client might be the victim of identity theft (ii) detect when a "red flag" has been raised, and (iii) take steps to address any identity theft situation that comes to light.
This is the third delay of the effective date of the Rule. The original rule was to be effective January 1, 2009 for most "creditors" (financial institutions have been subject to the rule since November 2008), but the effective date was delayed to May 1, 2009 due to confusion among entities (specifically including physicians) who might be considered "creditors." On the day before the May 1 deadline, the FTC announced that it would push the deadline back to August 1, and would provide a template that creditors could use to form their own identity theft prevention programs. As the August 1 deadline loomed, without the promised delivery of the template from FTC, the agency again decided to extend the deadline, this time until November 1, 2009.
The AMA engaged in a highly-publicized fight with the FTC over whether physicians should be considered "creditors" at all. The FTC has stated that it considers physicians to be "creditors" because of the customary delay between providing services and collecting payments, but the AMA has not conceded the fight yet, and has threatened to sue the FTC and force it to re-issue the Red Flags Rules in the Federal Register (at least as relates to the applicability to physicians) and re-open the regulations for public comment.
Interestingly, the FTC's announcement that it was moving the May deadline came in a press release entitled "FTC Will Grant Three-Month Delay . . .", while the announcement moving the August deadline is entitled, "FTC Announces Expanded Business Education Campaign on Red Flags Rule." Instead of focusing on the need to give businesses more time to construct their programs, the announcement focuses on the FTC's "redoubl[ing] its efforts to educate" small businesses and "providing additional resources and guidance. . . ." The press release specifically notes that alleviating the burden on health care providers is an impetus behind the new delay.
Jeff [10:44 AM]
[ Monday, July 27, 2009 ]
HIPAA confusion: Doctors' offices sometimes
get confused. One of the basic patient rights enumerated in HIPAA is the right of the patient to have access to his/her medical records.
Jeff [1:23 PM]
[ Friday, July 24, 2009 ]
Preemption: In Minnesota, HIPAA doesn't preempt state law that allows an individual to pursue a state-law cause of action against a provider for improperly disclosing medical information. Well, of course not: HIPAA's preemption is only of weaker state laws. A state law that allows a cause of action that HIPAA doesn't wouldn't be weaker.
When I saw the sordid facts of this case, I thought it was in reference to this one, but the earlier one was in Hawaii.
Hat tip: Jim Griffin
Jeff [9:43 AM]
OT: Red Flags: I've mentioned in the past the AMA complaints about the inclusion of physicians in the "Red Flags" Rule. Well,
the ABA is going to sue unless they cut lawyers out of the deal.
Hat tip:
Mary Emma Karam.
Jeff [9:31 AM]
[ Thursday, July 23, 2009 ]
Arkansas Snoopin': This is the follow-up to the
Little Rock news reporter case. Three hospital people have pleaded guilty to HIPAA violations for snooping in medical records. The doctor involved got 2 weeks probation, the two non-doctors got fired. This is at least the
second HIPAA case for Jane Duke, the Arkansas prosecutor.
Jeff [9:19 AM]
[ Monday, July 20, 2009 ]
OCR is Hiring: does that mean
more enforcement, or more policy-making?
Jeff [9:30 AM]
Ohio: More on the Ohio Supreme Court's extension of strong protection to the medical records of non-parties that are subpoenaed in connection with litigation. I reported on it
here.
Jeff [8:19 AM]
[ Friday, July 17, 2009 ]
Healthcare reform: A nice
synopsis of the house bill.
Jeff [11:48 AM]
Healthcare Reform: Only an
idiot would think you can cut healthcare spending by spending more on healthcare.
Jeff [10:25 AM]
Healthcare Reform: If you want
competition, get the government out of healthcare, not further into it.
Jeff [10:24 AM]
Business Associates: Dom Nicastro has some
good tips for getting your business associates to focus on complying with HIPAA, now that HITECH has made them directly responsible for it.
Jeff [9:42 AM]
[ Thursday, July 16, 2009 ]
California Snoopin' results in $187,500 fine. I think this is the Octomom case.
Hat tip: Clark Stanton
UPDATE: Same hospital, different breach. They paid $250,000 for the Octomom snooping, but there were some other snooping incidents at about the same time, which were part of a different investigation.
UPDATE AGAIN: Kaiser Permanante may appeal this fine. This case has been the buzz on the AHLA HIT list, since it seems that KP had policies and procedures in place, employees violated those procedures, KP did its own enforcement, found the violations/violators, and turned itself in to the Cali authorities. Is this the way you treat someone who self-reports, when they had good policies and good enforcement, and it was rogue employees violating those policies who did the bad deeds? It's a pretty big deterrent to self-reporting if you punish non-wrongdoers like this.
Jeff [4:27 PM]
Health Reform = Health Rationing: Peter Singer has finally said it. I'm glad someone has, because this part of the conversation must be had. So far, it's all Santa Claus and the Easter Bunny: people ought to have healthcare for free (hey, apparently it's a "right"!), but instead of talking about how we're going to pay for it, let's talk about how we're paying too much right now! Singer's question is apt, but it assumes that the government, rather than private individuals, make that choice. If Bill Gates wants to spend $1 billion of his own money to extend his life a year, shouldn't he get to do so?
However, I believe that this conversation is too painful for Americans, and will kill healthcare reform. Why? Because this is the first reaction. Pretty funny and well done, actually.
Jeff [10:16 AM]
Social Media and Healthcare Marketing: Gienna Shaw talks about
getting management buy-in.
Jeff [9:48 AM]
Qui bono? Interesting blog post over on InformationWeek about the tension between IT providers and patients over the push toward electronic billing records. I note it because the blogger notes, damningly, the question, "who will profit from digital medical records?" I know there are plenty of people occupying the corriders of power who want us to be in some sort of neo-Marxist paradise, but ain't nobody gonna do nothing for free. If EMRs, EHRs, and other personal digital health records are a good thing (and everyone tells us that they are not only good, but necessary), and we want them, we cannot expect to have them unless we pay for them, and we cannot expect anyone to provide them if they can't profit from doing so.
Who profits? As with any other exchange of goods and services in a free market, both sides. Those giving it away from free are either charitable donors or slaves, neither of which is a reasonable economic model for getting the goods and services you want.
Jeff [9:23 AM]
[ Wednesday, July 15, 2009 ]
Do state privacy laws deter EMR adoption? Are physicians and hospitals less likely to adopt electronic medical record technology due to the existence in their state of stricter privacy laws? Apparently,
says this study.
Jeff [11:56 AM]
[ Tuesday, July 14, 2009 ]
OT: More Healthcare Reform news. If the problem is that we pay too much for healthcare, why do all the proposed health reform bills cost money, rather than save money?
This is why there will be no health reform this year.
See this, too. Especially see the last page: primary care physicians can't afford to live in NYC. Those guys, who Steve Pearlstein thinks make too much money, can't afford to live in NY or LA. Think about that.
Jeff [9:11 AM]
[ Monday, July 13, 2009 ]
Dr. Dappen Leaves Medicare: The story of
one doctor's decision to leave Medicare. I'm sure Steve Pearlstein thinks he's a greedy bastard. This happens when the hassles of the system aren't worth the cost. If the doctor is good enough, he doesn't need Medicare, so he'll abandon it. And if Medicare gets worse, cheaper, harder to deal with, there will be more doctors doing this. So, the good leave, which leaves the rest. You get what you pay for. . . .
Jeff [12:03 AM]
[ Friday, July 10, 2009 ]
OT: Setting the table for my healthcare reform post. Oh, the number of people who ask me what I think about healthcare reform. What will happen? What should happen? Will this or that work? I don't know what will or won't work, but I have a pretty good idea of why things won't work, or won't work the way people think they will. Mostly, it is on account of two things: (i) the law of unintended consequences, and (ii) the failure to understand why things are the way they are, rather than just focusing the fact that things are the way they are. But that, especially number (ii), needs some set-up. Perhaps lots of it. That's why I've failed to post my missive on healthcare reform (that, and the fact that I'm unseasonably busy). But I will, soon.
In the meantime, trying to clear out some of the periodicals from my inbox, I saw a handful of items today that do a good job of illustrating these problems. First, I saw a letter written by an older lawyer (he went to law school on the GI bill after WWII) to the editors of the Texas Bar Journal, taking issue with a statement by the State Bar President in a prior issue. The President wrote, "At their best moment, all lawyers decided to go to law school because they thought they could help people." The older lawyer's objection: he went to law school to help himself by making money, thereby helping the rest of society be ensuring he was productive and earned a living in the service of his clients. He didn't go to law school to "help people," but to earn money so he could help himself (and presumably his family). Of course, by helping himself and earning his keep, he could then buy food from the grocer, clothes from the tailor, a house from the homebuilder, etc. The bar president's position, that all people who go to law school do so to help others, is certainly not even a good approximation of the fact that things are the way they are, and certainly don't come close to showing why things are the way they are. Sorry to shatter anyone's dreams, but most people go to law school because it pays handsomely.
Next, I saw an editorial in the June 22 issue of Modern Healthcare. Actually, the page (page 24) is a trifecta of my point in (ii) above. First, the lead editorial, is head/subheadlined, "Cat's still in the bag . . . but things could get ugly if it gets out that revenue is prime motivator." The key graf is the final one: "If Americans ever fully realize that too much of the system is aimed first and foremost at maximizing revenue for a few rather than improving the welfare of the many, the streets of Washington might be as full as those of Teheran." The editorial is somewhat rambling, starting with an observation of the protests in Iran, through Obama's healthcare reform efforts and specifically his direct pitch to the AMA, to an observation on The New Yorker's issue on the cost of care in McAllen, Texas. Specifically, the editorial quotes the following from The New Yorker: "Somewhere in the US at this moment, a patient with chest pain, or a tumor, or a cough is seeing a doctor. And the damning question we have to ask is whether the doctor is set up to meet the needs of the patient, first and foremost, or to maximize revenue." Uh, can't the doctor do both? Can't the doctor provide the patient with a service, thereby earning revenue for himself? Do we worry that plumbers or car mechanics are set up to maximize their revenue rather than meeting the needs of those with leaky pipes or radiator hoses? And, while we're at it, if the doctor doesn't make sufficient revenue, there won't be a doctor there in the first place. Since McAllen is such a hotbed of physician revenue maximization, surely there's a glut of physicians in McAllen, right? Uh, no, there's not. The "what" may be more healthcare spending in McAllen, but if you think the "why" is simply physician greed (at the expense of the patient, as implied by the quote above), you're missing the point; and, you're not going to fix that "what" by simply reducing physician compensation, certainly not without some unintended consequences.
Next, on the same page, a quote from Steve Pearlstein of the Washington Post:
"Docs seem to take it as a given that physicians in the United States should
earn twice as much as doctors in the rest of the world -- and five times more
than their patients. . . . Doctors are competent, hard-working professionals
trapped in a flawed system. . . . That system is no longer viable --
economically, politically, morally. The choice for doctors now is quite
clear: They can agree to give up a modest amount of autonomy and income, embrace
more collaboration in the way they practice medicine and take their rightful
place at the center of a reform effort that will allow them to focus more on
patient care. Or they can continue to blame everyone else and remain --
stubbornly -- a part of the problem."
Once again, it's the greedy doctors (as I'll point out later, if the jumping-off point for anyone's healthcare fix is "let's get the greedy [fill in the blank]s", I can guarantee you that they don't understand the why and their "fix" will not work). First, to the extent "doctors in the US make 2 times what doctors make elsewhere," what does that tell us? I suspect US newspapermen like Pearlstein make at least twice what newspapermen in the rest of the world make; given that the newspaper industry is in substantially greater a "crisis" than the healthcare industry, I'm guessing Pearlstein is volunteering for a 50% wage cut, right? How about car mechanics, or better yet, auto workers? Lawyers? Investment bankers? I'd guess the average US annual salary is twice the average annual salary of the rest of the world. "The US healthcare system is not economically, politically, or morally viable." Huh? It continues to operate, year after year. Nobody is dying in the streets (or at home due to rationed care, as is the case in countries with socialized medicine), so it's not economically non-viable. So far, just as in 1993 when the same players were singing the same songs, there is no political concensus that the healthcare system must be overhauled, however much Pearlstein and his ilk want to portray it that way. Therefore, it is not politically non-viable. And as for morally non-viable, . . . sorry, I'm at a loss to even understand his point. How is the current system immoral? How would its proposed replacement, a system that necessarily requires some sort of rationing*, be more moral? (*as for rationing, any change to the current system that is designed to reduce costs will necessitate it, unless we find slave labor to provide our care.)
Finally, immediately below Pearlstein, I found David Brooks of the New York Times: "Let's say you are President Obama. You've inherited a healthcare system that is the insane spawn of a team of evil geniuses from an alien power. Pay is divorced from performance. Users are separated from costs. Rising costs threaten to destroy your nation and everything you hold dear." Hmm. Well, our healthcare system, to the extent it is disfunctional, is the direct result of government meddling in the otherwise efficient free market. That "team of evil geniuses" came directly from the heart of the Democratic party (thanks, LBJ!) Alien? Not to Obama. Is pay any more "divorced from performance" than in any other business like, say, the newspaper business? It is really hard to define "performance," but generally, good doctors do make more than bad ones. "Users are separated from costs." YES. That throwaway line, ultimately, is the lynchpin for the entire problem with healthcare. But none of the health reforms proffered by Pearlstein or Brooks does anything to end that separation. And in fact, if anything, they want to separate users even more from costs. As for "rising costs in the healthcare system destroying the nation," I have 2 responses. First, have the economies of countries with socialized healthcare systems (or other systems that the proposed reformers of the US system favor) not suffered from the economic downturn just as the US has? If the US healthcare system is destroying the US economy, what is destroying the UK economy? Secondly, if you're worried about rising spending destroying the nation, take a look at the Stimulus Bill. That is what is truly destructive. Also, keep in mind that healthcare reform is "necessary" because of how high costs are now; but every proposed reform bill will increase the amount of money spent on healthcare (from a minimum of $600 billion to $3.5 trillion, according to some estimates), not reduce it.
Anyway, you can see why it's hard for me to tackle healthcare reform. I have started a blog post to run through my thoughts, and I'll try to flesh it out.
To the extent there is a public impetus toward healthcare reform, it is SOLELY because that is what the media and politician have trumpeted over and over again. In fact, the public "demand" for healthcare reform was greater in 1993 than it is today.
Prediction: Large-scale reform will not happen this year or next. It might've happened if Obama had tried it first. I believe that Obama came into office planning revolutionary change on many fronts, all with an emphasis toward socialist/statist structures: finance, the auto industry, taxes, and the size and scope of government, just to name a few in addition to healthcare. I also believe that all of these revolutionary changes are well beyond what the majority of Americans will stand for, so that Obama had the opportunity to get one done while his honeymoon was on. He chose the Stimulus Bill, which certainly has not delivered the successes it was virtually guaranteed to bring. He blew his wad. There is no appetite for large-scale unknown-result healthcare reform, and the failure of the Stimulus Bill (along with the impending failure of the auto industry bailouts) will cause a majority of Americans to resist sufficiently to prevent such reform. Mark my words.
Of course, more to come. . . .
Jeff [3:31 PM]
OT: Social Media Marketing. I
have been and
will be speaking on this (sign up and listen, it's free!), but there is a huge push to market using Twitter and other social media marketing milieu. One thing to be aware of: even if you stay away from these marketing tools out of fear or extreme caution, you need to be following what OTHERS are saying about you in these media. This is an
excellent cautionary tale, and I love Amy Mengel's "one rule": Don't suck so much in the first place. So true: you can't win every time, the customer isn't always right, etc. But if you don't suck too much, you'll have some people who will jump in and defend you when someone lights you up.
Jeff [2:15 PM]
[ Thursday, July 09, 2009 ]
OT: what I did on the 4th of July. Quite a performance. You've got to look a long way down to find my name, but it's the first time I've run competitively since high school (which was the last time I was a runner at all).
Jeff [9:09 AM]
New Media in Healthcare Marketing: Apparently, it's becoming much more popular, and more used, by healthcare marketers. As you may know, I spoke on the issue last month.
If you're interested in (i) FDA regulation of drug marketing and (ii) new media, you might be interested in this free presentation I'll be giving with Peter Pitts and David Maizenberg in two weeks. It's free and online. Only a little bit about HIPAA, but it could be an important piece of the puzzle, especially for healthcare providers (as opposed to pharma companies) who are involved in new media marketing.
Jeff [8:56 AM]
Canadian HIPAA: Was it Larry Ellison who said "you have no privacy, get over it"? Whoever it was, they're apparently getting the message in Canada.
Of course, not that many people get healthcare in Canada anyway.
Jeff [8:46 AM]
Also from AHIMA: Apparently, the California statute requiring all healthcare providers to report any known unauthorized access has been, er, successful.
LOTS of unauthorized access is happening, apparently. I suspect most healthcare providers are pretty meticulous about reporting stuff that's even just in the grey area, but still, I think there are a lot more incidents than most of us would've expected.
Jeff [8:41 AM]
AHIMA's Red Flags Materials: The American Health Information Management Association has published its
white paper on complying with the Red Flags rule, if you're interested.
Jeff [8:37 AM]
[ Wednesday, July 08, 2009 ]
Fighting ARRA's National Health Information System: Also from
BNA: "Provisions of the American Recovery and Reinvestment Act of 2009 that call for a national health information system for managing patient health records violate privacy and due process rights of those patients under the U.S. Constitution and other federal laws, according to a proposed class action complaint filed June 25 (Heghmann v. Sebelius, S.D.N.Y., No. 09-cv-5880, 6/25/09)." I suspect it'll be thrown out for lack of standing.
Jeff [9:34 AM]
Ohio Suit: Non-Party Records Protected: Via
BNA (subscription required): "Discovery of the confidential medical records of nonparties in private litigation is not permitted by Ohio law, the state supreme court declared July 1 (Roe v. Planned Parenthood Southwest Ohio Region, Ohio, No. 2007-1832, 7/1/09)." The trial court's ability to balance the interest of the litigants to discovery versus the interests of the patients in the privacy of their records was effectively limited to litigants defending a claim of unauthorized disclosure. Based on the dissent, I'm not sure this issue is fully settled.
Jeff [9:27 AM]
[ Tuesday, July 07, 2009 ]
6 Rules: From Dom Nicastro (and for Paul Moore), some
sage advice on the right way to approach HIPAA.
Jeff [8:49 AM]
[ Wednesday, July 01, 2009 ]
Tweets on a Plane: I'm currently on American Airlines flight 446, DFW-PHL, somewhere over the Appalacian Mountains, and blogging. On-board wi-fi. Don't know if its a blessing or a curse. It's like I haven't left my office, except I can't take phone calls.
Jeff [1:16 PM]
Twitter as an Epidemiologists Tool? Chris Thorman, who normally blogs about
EMR software, has an
interesting piece noting how well Twitter has worked in following the Iranian unrest, and contemplating a use for Twitter in tracking epidemics. A Google-Twitter mashup was useful in tracking the original outbreak of the swine flu (or H1N1 for the politically correct). There are definitely synergies: the speed and ubiquitousness of Twitter would be useful to epidemiologists. But there are downsides: the lack of verifiability and non-standardization inherent in an uncontrolled medium. For fighting against an authoritarian regime, the nimbleness and uncontrolability of Twitter is a feature. For fighing the spread of an epidemic, there are some definite shortfalls.
Jeff [1:06 PM]
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