SZD Health Law Scan : Health Care Lawyers & Attorneys : Schottenstein Zox & Dunn Law Firm : Strategic Planning, Managed Care, Insurance : Columbus, Cleveland, Cincinnati, Central Ohio

Does this reach hospital employed-physicians and physicians employed by hospital-affiliated practices?

On December 30^th, the Centers for Medicare and Medicaid Services released its proposed rule for the American Recovery and Reinvestment Act (ARRA) of 2009 electronic health record incentive program. This Interim Final Rule represents the first step in an incremental approach to adopt standards, implementation specifications, and certification criteria to enhance the functionality, utility, and security of health information technology and to support its meaningful use. Among the issues that will impact providers is which physicians will qualify for the Medicare eligible professional EHR incentive payments.

ARRA provides that no Medicare incentive payments for meaningful use of certified EHR technology may be made to hospital-based eligible professionals. ARRA defines a “hospital-based professional” as an otherwise eligible professional, such as a pathologist, anesthesiologist, or emergency physician, who furnishes substantially all of his or her covered professional services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital.

Under the propose rules, the determination of whether an eligible professional is a hospital-based eligible physician is to be made on the basis of the site of service (as defined by the DHHS Secretary). Based on the language in ARRA and the proposed rule, it appears the EHR incentive payments will not be made to physicians who:

• furnish “substantially all” (quantified by CMS as at least 90% of a physician’s services)
• of their “covered professional services”
• in a “hospital setting” (including place of service codes 21 – Inpatient Hospital, 22 –   Outpatient Hospital, and 23 – Emergency Room)
• that is either “inpatient or outpatient” and
• through the use of the facilities and equipment of the hospital, including the qualified EHR of the hospital.

It is important to point out under these proposed rules that “hospital-based” does not focus on the employment or billing arrangement, but rather on the site of service. The foregoing may mean that in situations where a hospital employs a physician and handles the physician’s billing, this arrangement in and of itself does not make a physician “hospital-based.” If the physician’s practice is not conducted in a facility that is part of the site “licensed” as a hospital, then under the proposed rules the physician may not be practicing in a “hospital setting” and therefore not considered “hospital based,” assuming of course the physician does not exceed the 90% threshold “site of service” test. Remember, however, that the EHR rules are only proposed at this time. These situations may be addressed more clearly in the final rule scheduled to be published in March 2010. Stay tuned.

This post was co-authored by Anthony Shaffer.

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On October 27, SZD held its Symposium on Health Care Policy Reform in Columbus, Ohio. Guest speakers from across the health care industry confronted today’s toughest reform questions and concerns, including those issues specific to employers, payors, providers and consumers. During the event, we asked panel members to weigh in on those aspects of reform that are the most critical to their particular workplace.

SZD: What elements of health care reform are most important to your company/organization?

 

Dennis Hicks
Director of Compensation and Benefits
Chiquita Brands International Inc.

A: A big benefit to our company will be the shift to electronic health records and exchange of information. Because we employ so many people in different parts of the globe, there is a tremendous amount of staffing involved in simply having people filling out health insurance forms.

Another important aspect is wellness. The government can play a big role in promoting wellness by paying for vaccines, preventive and more pediatric treatments. Government should also be more involved in financial support of medical education. Doctors need to make so much in order to pay off expensive school loans and get out of debt.

I’d also like to see costs reduced. Historically, government involvement typically doesn’t lead to lower costs and greater efficiency. Take Medicare for instance. For 40 years the government has been talking about Medicare’s waste, fraud and abuse. They’ve had 40 years and they haven’t been able to fix it yet. And I see nothing in the bill right now that breaks the cost curve.

John Popa
President & CEO
Marlite Inc.

A: I’d like to see incentives for doctors that will encourage quality of care, not just for how many procedures or tests are done, as is the case now. One idea would be to have physicians become salaried employees of hospitals with strict quality controls in place enabling patients to get only the care they need and not unnecessary tests and other procedures. What I want for my employees is that they be allowed to go to the provider who can give them the best care, not someone they are seeing under a mandate.

Whatever ultimately happens with health care reform, it should not place an unfair burden on businesses. We feel we have an obligation to provide insurance to our employees. As an American I also feel strongly that I want to do my share to help the uninsured. But I have an issue with other employers who do not feel the same obligation.

I also doubt that increased government involvement will help solve the problems we have in health care; it may just lead to more inefficiency which leads to greater costs. It seems that only 20 percent of the system needs work and the government is trying to get involved in 100 percent.

Steven Gabbe
Senior Vice President for Health Services & CEO
Ohio State University Medical Center

A: Physician reimbursement is a huge issue. Doctors are needed throughout the country in primary care, and unless they are reimbursed enough to repay their school loans, fewer of them will go into primary care medicine. If you cut back on Medicaid and Medicare reimbursements, doctors may be forced to drop those patients and they will be left with fewer choices for care.

For OSU, the residency positions at the medical center are funded through Medicare, and every year we’re faced with uncertainty over whether the residency program will continue to be funded. Doctors should be paid for what they do and paid well. We need to move toward a reimbursement system based on outcomes, but we must define those outcomes clearly or you will have doctors denying service to potentially very sick people who by the very nature of their illness may not have ideal outcomes.

Electronic medical records will certainly go a long way to increase efficiency, reduce waste and improve patient care. At OSU patients can access their records; they can see outcomes of tests and see all the medications they are taking. The response from patients has been very positive. 

Erin Hoeflinger
President
Anthem Blue Cross and Blue Shield in Ohio

A: The ultimate goal of health care reform must be to build a sustainable health care system. At Anthem Blue Cross and Blue Shield, we provide health insurance to 3.3 million Ohioans. Along with our members, providers, customers and employees, we have a significant stake in the outcome of this process. It’s not enough to just implement insurance reform; we have to get it right. And getting health care reform right means addressing the underlying problems of quality and cost so that more people can be covered.

Perhaps the most central issue in the health care debate is access to coverage. Establishing an effective, enforceable mandate to have everyone covered is one significant way to reform the system. Anthem supports health care reform – but without threatening those who already have quality medical benefits through the employer-based, private sector model that right now covers 170 million Americans – 7 million in Ohio.

George Stadtlander
Executive Vice President & Chief Managed Care officer
Medical Mutual of Ohio

A: All citizens should have access to a core set of health care benefits, in other words, guaranteed access. Everyone should participate according to their means in the healthcare benefits system. This eliminates the need for pre-existing condition exclusions.

The cost of the core set of health care benefits needs to be controlled such that the annual increase of such benefits equals the overall inflation rate. Quality improvements in the health care delivery system will result in greater value and in time reduced total cost. Administrative simplification and efficiency will lower overall costs.

The role of the government should be as the regulator, not the regulated. The regulators can not regulate themselves. 

Martin Hauser
President
SummaCare Inc.

A: Although there is still a fair amount of uncertainty about the final design of health care reform, it appears as if several key elements are emerging. Of the components that we are assuming will make it into the final reform bill, we support things such as the desire to ensure that all Americans have access to health insurance coverage and the elimination of pre-existing conditions.

However, these changes cannot occur without a corresponding commitment that there will be some type of requirement that employers offer and individuals acquire health insurance. In addition, we have significant concerns about the lack of details surrounding the proposed Public Option and whether it can be funded and administered in a way that creates an equitable, level playing field.

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From running real-time texting polls, to coordinating a live video feed from Washington, the Symposium on Health Care Policy Reform made an impression on the 400 people in attendance.

The results are in from the texting polls during the Symposium on Health Care Policy Reform. Surprisingly, the media has influenced over 30 percent of attendees view’s of health reform, while only 18 percent are very optimistic on the likelihood of health care reform legislation to be enacted.

In addition, we have also made the symposium’s presentations available. Participants have been emailed the password to download files. In the coming weeks, we will also release podcasts of each presentation and panel discussion. Check back frequently or sign up via RSS feed for updates.

Click on slides or audio next to the presenter’s name to download their power point slides and audio recording of their presentation.

Mary Jo Hudson, slides, audio
Jeff Biehl, slides, audio
Panel discussion – Employer perspective, audio
Panel discussion – Provider perspective, audio
Panel discussion – Payor perspective, audio
Jennifer Chubinski, slides, audio

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Schottenstein Zox & Dunn Co., LPA, the Health Policy Institute of Ohio and the Employers Health Coalition of Ohio’s Health Care Reform symposium is now at capacity. However, those who are unable to attend on Oct. 27 can follow us on Twitter at @szdlaw or #hcrsymposium to get live updates about the discussions during the conference.

The symposium will address the impact of federal and state health care policy reform efforts among key Ohio stakeholders in the health care industry. In addition to obtaining an overview of the current state of health care policy reform, attendees will benefit from the views and opinions of Ohio policymakers and leaders in the provider, payor and employer communities on health care policy reform through informative panel discussions and interactive question and answer sessions. Key questions to be addressed include:

• What is the current status and substance of the federal government's health policy reform efforts?
• What is the status and substance of any Ohio health policy reform initiatives?
• How will adopted (or proposed) reform legislation impact the provider, payor and employer communities?
• What are these stakeholders' key concerns about health care reform?
• What opportunities does health care reform present for these stakeholders?

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The American Recovery and Reinvestment Act of 2009 (ARRA) was enacted on February 17, 2009.  Section 13402 of ARRA, the Health Information Technology for Economic and Clinical Health Act, obligated the Department of Health and Human Services (HHS) to promulgate interim final regulations within 180 days of enactment to require covered entities under the Health Insurance Portability and Accountability Act of 1996 and their business associates to provide for notification in the case of breaches of unsecured protected health information. Accordingly, HHS has issued the following:

News Release
FOR IMMEDIATE RELEASE
Wednesday, August 19, 2009 
Contact: HHS Press Office
(202) 690-6343

HHS Issues Rule Requiring Individuals Be Notified of Breaches of Their Health Information

New regulations requiring health care providers, health plans, and other entities covered by the Health Insurance Portability and Accountability Act (HIPAA) to notify individuals when their health information is breached were issued today by the U.S. Department of Health and Human Services (HHS).

These “breach notification” regulations implement provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of American Recovery and Reinvestment Act of 2009 (ARRA).

The regulations, developed by the HHS Office for Civil Rights (OCR), require health care providers and other HIPAA covered entities to promptly notify affected individuals of a breach, as well as the HHS Secretary and the media in cases where a breach affects more than 500 individuals.  Breaches affecting fewer than 500 individuals will be reported to the HHS Secretary on an annual basis. The regulations also require business associates of covered entities to notify the covered entity of breaches at or by the business associate.

“This new federal law ensures that covered entities and business associates are accountable to the Department and to individuals for proper safeguarding of the private information entrusted to their care.  These protections will be a cornerstone of maintaining consumer trust as we move forward with meaningful use of electronic health records and electronic exchange of health information,” said Robinsue Frohboese, acting director and principal deputy director of OCR.

The regulations were developed after considering public comment received in response to an April 2009 request for information and after close consultation with the Federal Trade Commission (FTC), which has issued companion breach notification regulations that apply to vendors of personal health records and certain others not covered by HIPAA.

To determine when information is “unsecured” and notification is required by the HHS and FTC rules, HHS is also issuing in the same document as the regulations an update to its guidance specifying encryption and destruction as the technologies and methodologies that render protected health information unusable, unreadable, or indecipherable to unauthorized individuals.  Entities subject to the HHS and FTC regulations that secure health information as specified by the guidance through encryption or destruction are relieved from having to notify in the event of a breach of such information.  This guidance will be updated annually.

The HHS interim final regulations are effective 30 days after publication in the Federal Register and include a 60-day public comment period.  For more information, visit the HHS Office for Civil Rights Web site.

To track the progress of HHS activities related to ARRA, visit www.hhs.gov/recovery. To track all federal activities related to ARRA, visit www.recovery.gov.

###

The rule is posted at http://edocket.access.gpo.gov/2009/pdf/E9-20169.pdf and the press release is available at http://www.hhs.gov/news/press/2009pres/08/20090819f.html.
 

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Provider implementation of health information technology is a priority of the current Obama administration and will continue to be a focal point of national health care reform. A major question for health care reform is who pays? In theory, cost savings and efficiencies are one source. Another may be continued payment pressures by governmental and nongovernmental payers. Perhaps, the two go hand in hand, and the only way providers can survive effectively with looming payment pressure is by implementing robust health information records and business systems. Some providers are only reluctantly "embracing" this change, but go along they must.

The American Recovery and Reinvestment Act of 2009 (ARRA 09) provides funding to increase the adoption of Health Information Technology (HIT) with the goal of creating a national health information infrastructure and network. The funds available in the stimulus bill are to provide approximately $35 billion for this purpose, with a large potion of those funds to be paid to Medicare and Medicaid providers that adopt electronic health records (EHRs) by the deadlines set forth in the statute. With payments set to begin in late 2010 (hospitals) and early 2011 (other providers), the federal government seeks to increase EHR adoption among physicians to more than 90% by 2016. This may be a tall order given that current adoption estimates for physicians are now in the low 20th percentile. Many hospitals are in the process of implementing EHRs, but they too have significant financial and technical challenges ahead of them. Many believe the ARRA 09 funding will fall well short of the need.

In May 2009, the Office of the National Coordinator for Health Information Technology (ONC) released its implementation plan titled The Health Information Technology American Recovery and Reinvestment Act Implementation Plan. The ONC's Implementation Plan met the 90-day deadline under the Health Information Technology for Economic and Clinical Health (HITECH), a section of ARRA 09. In order for a provider to qualify for funding, however, there are a number of requirements each provider must meet. The EHR must be interoperable with a health information exchange and the provider must demonstrate "meaningful use" of EHRs, which term is undefined at this time. Recommendations have been made about how to define these terms, but no definitive regulatory or other guidance has been provided in the Implementation Plan or otherwise.

The Implementation Plan provides that later this year the government will release important definitions and clarifications regarding these terms as well as describe how other aspects of the HIT stimulus package will work. It is interesting to note the Implementation Plan calls for swift action to achieve long-term improvements in health and healthcare through adoption of information technology, while at the same time the Plan acknowledges the need to finalize many of these details. The ONC has held hearings now with more to come in order to determine what "meaningful use" of EHRs really means. This process is supposed to involve significant stakeholder review, input and evaluation. While this may be the best approach, it may be a recipe for further delay in finalizing many of these critical elements of the incentive funding proposal.

As this process continues to unfold, the clock is ticking toward 2011. In addition to money, it takes time to implement large (and even small) scale EHR projects. Even though vendors will tout their products as the "solution," many providers have rightfully expressed concern that implementing the wrong system now in light of these developing standards could be a big mistake. Whether providers will have enough time to meet the 2011 timeline when significant aspects of the funding requirements have yet to be finalized remains to be seen. Providers in the near future may need to ask their legislative representative to consider additional legislation to allow providers more time to implement EHRs prior to the start of the incentive funding cycles.

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On June 15, 2009, the American Medical Association (AMA) approved new guidelines for physicians on responding to breaches of patients' electronic medical records (EMR).

According to the AMA Council on Ethical and Judicial Affairs (CEJA) in its report, CEJA Report 3-A-09, these guidelines are intended to fill an important gap in the AMA's policy, which, until now, did not "address physicians' ethical responsibilities in the event the security of electronic records is breached and patient data are inappropriately accessed." The CEJA identified the need for the guidelines particularly in light of the newly enacted American Recovery and Reinvestment Act of 2009 (ARRA), which amended the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to mandate that patients be notified in the event of certain breaches of their medical records.

As adopted, the guidelines state:

"When there is reason to believe that patients’ confidentiality has been compromised by a breach of the electronic medical record, physicians should:

1. Ensure that patients are promptly informed about the breach and potential for harm, either by disclosing directly (when the physician has administrative responsibility for the EMR), participating in efforts by the practice or health care institution to disclose, or ensuring that the practice or institution takes appropriate action to disclose.
2. Follow ethically appropriate procedures for disclosure, which should at minimum include: 
   1. carrying out the disclosure in a private setting and within a time frame that provides patients ample opportunity to take steps to minimize potential adverse consequences; and
   2. describing what information was breached; how the breach happened; what the consequences may be; what corrective actions have been taken by the physician, practice, or institution; and what steps patients themselves might take to minimize adverse consequences.
3. Support responses to security breaches that place the interests of patients above those of the physician, medical practice, or institution.
4. To the extent possible, provide information to patients to enable them to mitigate potential adverse consequences of inappropriate disclosure of their personal health information, such as credit monitoring services or identity theft hotline."

Now, physicians and other health care providers who intend to establish policies to address responses to breaches of their patients' EMR must not only take into account the above AMA guidelines and the recent amendments to HIPAA but they also must remember to consult the applicable laws of their own state.

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On June 16, 2009, the Centers for Medicare & Medicaid Services (CMS) released a fact sheet on the Medicare and Medicaid Health Information Technology: Title IV of the American Recovery and Reinvestment Act (ARRA). The fact sheet details the Medicare and Medicaid incentive payments for meaningful users of electronic health information (EHR). In addition to the summary of ARRA, the fact sheet contains a section on Frequently Asked Questions about the incentive payments.

According to this fact sheet, CMS expects to publish a proposed rule to define "meaningful use" of EHR and to establish the criteria for the incentive payments by late 2009.

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On June 16, 2009, the Health Information Technology (HIT) Policy Committee held a meeting to begin defining the "meaningful use" of electronic health records (EHR). Under the American Recovery and Reinvestment Act (ARRA), only "meaningful EHR users" will be eligible to receive Medicare and Medicaid incentive payments for adopting EHRs. The ARRA broadly defines a meaningful EHR user as one who demonstrates (1) the meaningful use of certified EHR; (2) the electronic exchange of health information to improve quality of health care; and (3) the submission on clinical quality and other measures using certified EHR technology.

The HIT Policy Committee developed a "Meaningful Use Matrix" that establishes proposed objectives that hospitals and physicians would have to meet to receive the incentive payments. The committee believes that this matrix "represents a set of objectives and care processes that . . . should inform the ultimate definition of meaningful use."

The Office of the National Coordinator for Health Information Technology (ONC) is now seeking public comments on the HIT Policy Committee's recommendations through Friday, June 26, 2009. The Centers for Medicare & Medicaid Services expects to publish a proposed rule to define "meaningful use" of EHR and to establish the criteria for the incentive payments by late 2009.

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On April 8, 2009, President Obama signed an executive order establishing a White House Office of Health Reform (OHR) that will spearhead the Obama Administration's policy agenda for health care. The principal functions of the OHR include providing leadership for and coordinating the development of the Administration's agenda; working with Congress, various executive departments and agencies, and State, local and community policymakers and public officials; and monitoring the implementation of the agenda.  If requested by the OHR Director, executive departments and agencies are required to designate a liaison to work with the OHR.

The executive order also requires the Secretary of Health and Human Services to establish its own Office of Health Reform within the Department of Health and Human Services to coordinate closely with its White House counterpart.

President Obama has appointed Nancy Ann Min DeParle as the first Director of the OHR. During the Clinton Administration, DeParle served as the Associate Director for Health and Personnel at the White House Office of Management and Budget and as the Administrator of the Health Care Financing Administration, which is now the Centers for Medicare and Medicaid. Before joining the Clinton Administration, she served as the Tennessee Commissioner of Human Services and worked as a lawyer for a law firm in Tennessee. Since leaving the Clinton Administration, DeParle is reported to have served on the board of directors of various medical device companies, such as Boston Scientific and MedCo.

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Barrack Obama has now signed into law the “American Recovery and Reinvestment Act of 2009.” Deep within the pages of this massive legislation are the “Health Information Technology for Economic and Clinical Health Act” and other provisions that support one of President Obama’s major policy priorities… to encourage investment in health information and related technologies that will help lower the overall cost of health care in the United States. The Act is premised on spending that will lead to cost savings as well as spur economic growth. For years, focus groups and other think tanks have been studying and reviewing health information issues and preparing for the day when health information initiatives would move forward. Many efforts have stalled in the past due to lack of funding, as quantifying the return on investment for health information initiatives has been elusive.

This new law, however, will provide funding for various public and private efforts to advance the development, implementation and professional training related to the adoption of health information technology and electronic health records. Some of the funding will be competitive, typically through a grant process with federal and state agencies and organizations. Beginning in 2011, additional funding will be paid to all qualifying physicians, hospitals and several other types of health care providers that participate in the Medicare and Medicaid programs. Theses incentives are truly designed with a “carrot and a stick approach” in mind as the funding will be phased out beginning in 2015, and, at that time, Medicare and Medicaid providers who have not adopted electronic health records will be subject to financial penalties.

Qualification for the funding will not be automatic, as the federal government through the Office of the National Coordinator for Health Information Technology (part of the Department of Health and Human Services) is responsible for developing implementation standards and other requirements, such as how to determine if you are a "meaningful user" of electronic health records. Some of these standards will undoubtedly require interoperability of systems, which will ultimately lead to a national grid. Quality and other data reporting to various stakeholders will also likely be required. In addition, the Act includes major revisions to the Health Insurance Portability and Accountability Act of 1996 (aka “HIPAA”). These new requirements will expand the reach of the privacy and security regulations as well as stiffen the penalties associated with non-compliance. Health information experts and attorneys are busy studying the impact of these changes, and more specific regulation from the agencies will be provided in the near future.

So the day for significant advancement of health information initiatives has finally arrived. Stakeholders, such as providers, payers, employers, citizen groups and governmental agencies, should take note and be prepared to move ahead consistent with the policy goals and objectives described in the new law. It is likely inevitable that some efforts will not work as advertised or planned, and funds will be expended without the desired result. Nevertheless, it appears the health information train is leaving the station, and there will be no turning back from this health information revolution that we will all watch and be a part of over the next several years.

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The OIG recently released a report that was critical of the oversight and enforcement by CMS with respect to the HIPAA Security Rule. The report included the following remarks: “CMS had taken limited actions to ensure that covered entities adequately implement the HIPAA Security Rule. These actions had not provided effective oversight or encouraged enforcement of the HIPAA Security Rule by covered entities.” The report notes that CMS primarily relied on complaints to identify non-compliant covered entities that it might investigate and recommends that CMS establish policies and procedures for conducting HIPAA Security Rule compliance reviews of covered entities.

The report raises an interesting topic that should receive more scrutiny in upcoming years: Resource allocation for enforcement of Federal health care laws and regulations. OIG indicates that CMS could be more effective in its oversight and enforcement of the HIPAA Security Rule by conducting compliance reviews. But, this begs the question: Why did CMS not conduct compliance reviews during the period under review?

If the answer is that CMS allocated significant resources to compliance reviews and simply failed to execute, then a critique on this failure may be justified. But, if CMS chose not to engage in compliance reviews during the period under review, relying on other (perhaps, less expensive) methods of enforcement and allocating resources to achieve other objectives on its agenda, than the assessment should focus on the decision not to allocate significant resources to compliance reviews.

And, if this latter statement is true, that CMS chose not to allocate significant resources to compliance reviews during the period in question, to analyze this decision, one should look at the opportunity cost of compliance reviews, i.e., the CMS projects that could have been given less attention in order to direct more resources to compliance reviews.

CMS’s response to the report is marked by its disagreement with OIG’s conclusions on the complaint-driven enforcement process. Is CMS saying, with the hand we are dealt, we believe our complaint-driven enforcement model is appropriate?

In reviewing performance, the reviewer should consider the resources available to the performer. Allocation of Federal government resources, already a topic of mainstream discussion, will continue to be dissected heavily in upcoming years given the capital that has been infused into the economy and the likelihood for increased dedication of resources to regulation of the financial industries. Of course, how this resource allocation will affect enforcement in the health care industry remains to be determined.

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The U.S. Department of Health and Human Services, Office for Civil Rights, recently released guides to providers and patients on when health care providers may communicate with a patient's family, friends, or others involved in the patient's care under the HIPAA privacy regulations.  The guides include frequently asked questions on this subject.  The provider's guide also notes that it is intended to clarify HIPAA requirements so that health care providers do not unnecessarily withhold a patient's health information from family, friends, and other health care providers.  

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A survey published this month in the New England Journal of Medicine tends to confirm what we have all generally suspected about the low rate of electronic health record (“EHR”) adoption by physicians in the United States. Although the number of survey respondents was small (2,758) in relation to the number of physicians in the U.S., the survey shows that only about 4% of the responding physicians reported having an extensive, fully functioning EHR system. About 13% of the physicians reported implementing at least a basic EHR system. Physicians who were younger, who worked in large groups, primary care groups, hospitals or medical centers or who practiced in the western part of the U.S. were more likely than other physicians to have implemented some form of EHR.
Continue Reading...

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A recent story from Healthcare IT News presents an interesting intersection between the managed care and health information technology areas.  New Jersey's Horizon Blue Cross is apparently providing funding for electronic medical record implementation in network hospitals.  

For those of you thinking on a national scale, EMRs for eight hospitals may be a relatively small step, but one that may foreshadow more intriguing possibilities.  After all, who else has as much to gain from, and is in a better position to support electronic health information exchange, as the payors?  Not to mention the impact that a program like that could have on payor contract negotiations.

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Recent confirmation of the premise that labeling a document "peer review" does not automatically invoke the peer review privilege came via the Ohio 12th District Court of Appeals, which affirmed a trial court decision ordering the production of hospital EKG discrepancy reports.

Per hospital procedures, cardiologists overread emergency room physician EKG readings.  A discrepancy report was completed whenever the cardiologist's interpretation differed from the emergency room physician.  The defendants argued that the discrepancy reports were peer review documents and non-discoverable, based on Ohio Revised Code Section 2305.253, Incident or risk management report not admissible or discoverable; and Ohio Revised Code Section 2305.252, Confidentiality of proceedings and records within scope of peer review committee of health care entity.

Critical to the Court's finding that the trial court did not abuse its discretion in ordering production of the reports was evidence in the record that the reports were used for patient care.  The Court also cited a lack of evidence that the reports were actually examined by a peer review committee at the hospital.  And, the Court noted that the reports were not "incident or risk management reports" since the purpose of the forms is not to record a patient injury occurring at the hospital.

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The Fourth District Court of Appeals in Ohio recently released an opinion indicating that the trial court erred by refusing to grant a motion to quash a grand jury subpoena requesting medical records from a physician.  The grand jury had issued a subpoena ordering the physician to produce the medical records of over 50 patients.

The case is instructive regarding application of the physician-patient privilege to grand jury subpoenas in Ohio.  Under Federal privacy regulations, a covered entity may disclose protected health information without a "HIPAA-compliant" authorization in compliance with and as limited by the relevant requirements of a grand jury subpoena.  See 45 C.F.R. 164.512(f)(1)(ii)(B).  However, an Ohio court has recognized that the state law physician-patient privilege is more stringent than the Federal privacy regulations.  See Grove v. Northeast Ohio Nephrology Assoc., 2005-Ohio-6914, Paragraphs 18-23.

The Ohio Supreme Court has stated that in the absence of a prior authorization, a physician or hospital is privileged to disclose 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.  Biddle v. Warren Gen. Hosp., 1999-Ohio-115 (syllabus).

In this case, the Court found no statutory exception to the physician-patient privilege.  In addition, the Court refused to "judicially create a public policy exception to the privilege statute for grand jury subpoenas."  Physicians and hospitals should be aware of this opinion (and its analysis) when responding to grand jury subpoenas requesting medical records.

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