Health IT Law Blog : Health IT Law Blog : Post & Schell: Law Firm : HIT & Electronic Health Records

From the FTC:

To assist small businesses and other entities, the Federal Trade Commission staff will redouble its efforts to educate them about compliance with the "Red Flags" Rule and ease compliance by providing additional resources and guidance to clarify whether businesses are covered by the Rule and what they must do to comply. To give creditors and financial institutions more time to review this guidance and develop and implement written Identity Theft Prevention Programs, the FTC will further delay enforcement of the Rule until November 1, 2009.

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Although many covered entities have already developed and implemented appropriate, risk-based programs, some – particularly small businesses and entities with a low risk of identity theft – remain uncertain about their obligations. The additional compliance guidance that the Commission will make available shortly is designed to help them. Among other things, Commission staff will create a special link for small and low-risk entities on the Red Flags Rule Web site with materials that provide guidance and direction regarding the Rule. The Commission has already posted FAQs that address how the FTC intends to enforce the Rule and other topics – www.ftc.gov/bcp/edu/microsites/redflagsrule/faqs.shtm. The enforcement FAQ states that Commission staff would be unlikely to recommend bringing a law enforcement action if entities know their customers or clients individually, or if they perform services in or around their customers’ homes, or if they operate in sectors where identity theft is rare and they have not themselves been the target of identity theft.

You can read the full press release here.

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The Los Angeles Times reported on a story of a patient trying to obtain a copy of her blood tests from her doctor's office.  The office wanted to charge the patient $25 to retrieve the test results and send them to her via first-class mail (refusing to fax such results to her for free).

Under both HIPAA and California privacy laws, however, the patient was entitled to such records with only minimum administrative charges:

Most providers are required to follow both HIPAA and the California law, deferring to whichever offers greater consumer protection in cases where the laws differ. As a result, [this patient's] doctor had no legal basis for charging the $25 administrative fee for her lab results.

Under California law, healthcare providers are allowed to charge a fee for the cost of copying a patient's medical record and for the postage to mail it. But the cost cannot exceed 25 cents per page for photocopies and 50 cents per page for microfilm.

The law in California also permits doctors to charge a "retrieval fee" for locating patient records and for making them available. But HIPAA does not allow it. Because HIPAA offers consumers greater protection than California law in this area, doctors in the state cannot charge patients fees beyond those allowed for photocopying.

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With the number and popularity of consumer review sites, such as Yelp.com and Angie's List, growing steadily, doctors are beginning to find themselves subjects of online reviews more and more frequently.  In fact, certain web sites, like RateMD.com, are dedicated specifically to rating physicians. 

The Washington Post reported recently on doctors seeking patients to sign contractual forms, commonly known as "gag orders", which may obligate patients not to comment or review their experiences at the doctor's office "without prior written consent" of the physician.  The Post explored the positions of both the advocates and opponents of gag orders.

Unsurprisingly, many doctors are vehemently opposed to the idea of being reviewed online (some cite difficulty in capturing quality of care and outcomes, rather than concentrating on the "ambience" of care, as the primary reason).  Some physicians go a step further and ask patients to sign contractual forms promising not to comment or review their services.  The Post  notes that it is not clear whether gag orders are legally enforceable or even ethical.

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eHealth Initiative, an affiliation of organizations devoted to improving the quality, safety and efficiency of healthcare through information technology, released its 2009 survey on Health Information Exchange (HIE), titled "Migrating Toward Meaningful Use: The State of Health Information Exchange."

The survey found many positive trends in the expansion of HIE's in the United States, including:

• the number of operational HIE initiatives (e.g., exchanges transmitting live data among stakeholders) has increased by nearly 40% since 2008;
• positive impact on physician practices by improving efficiency without disrupting care (e.g., quicker access to test results, reduced staff time spent searching for results and performing other administrative functions);
• reduction in costs associated with, inter alia, reduced staff time spent on searching for test results and performing other clerical functions, as well as reduction in duplicate tests and medical errors; and
• steadily growing number of initiatives are exchanging data, with almost universal increases in the type of data exchanged.

The survey also found that "initiatives identified 'addressing privacy and confidentiality issues' as the most pressing challenge they face, surpassing 'developing a sustainable business model'."

eHealth Initiative's press release, which includes a more detailed summary of the survey, can be found here.

"Migrating Toward Meaningful Use: The State of Health Information Exchange," eHealth Initiative Study (July 22, 2009).

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Via Healthcare-Informatics:

By 2011, at least 10 percent of all orders processed in a hospital must be entered through CPOE to qualify that institution for CMS incentives under the HITECH Act, according to a proposed matrix of meaningful use released today by ONC’s HIT Policy Committee.

Other 2011 hospital requirement are:

• implementation of drug-drug, drug-allergy, and drug-formulary checks
• maintenance of up-to-date problem lists of current and active diagnoses based on ICD-9 or SNOMED
• incorporation of lab-test results into EHR as structured data
• reporting of hospital quality measures to CMS
• implementation of one clinical decision rule related to a high-priority hospital condition
• providing of patients with an e-copy of their health information
• capability to exchange key clinical information (eg. discharge summary, procedures, problem lists, medication lists, allergies, test results) among providers of care

In another major development, the committee recommended that incentives be paid according to an ‘adoption year’ timeframe rather than a calendar year timeframe. “Under this scenario, qualifying for the first-year incentive payment would be assessed using the 2011 Measures. The payment rate and phaseout of payments would follow the calendar dates in the statute, but qualifying for incentives would use the ‘adoption-year’ approach,” the committee stated.

Here is the link to the matrix.

Stay tuned for more on meaningful use definition.

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While we anxiously await ONC's preliminary definition of "meaningful use" (due to be published on Thursday of this week), let us consider the future of American healthcare through the prism of recent industry analysis and new developments in Texas.

The New York Times Bits blog had a posting today about "an ambitious experiment" at the Cook Children's Health Care System in Ft. Worth, Texas.  Cook Children's is implementing a new EHR technology system (see details after the jump) which the administration hopes "will help the clinic improve care management and curb costs."  This outcome-oriented approach is also consistent with the payment and reimbursement structure at the clinic: "a capitated payment -- a set annual payment for each patient, instead of the standard fee-for-service system of American health care."

This development reminded me of Atul Gawande's fascinating article in The New Yorker last month about the bottom line-driven culture of hospitals and medical practices in McAllen, TX, which, according to his analysis, may lead to significantly higher cost of health care, while showing no real improvement in the quality of care.  The article contrasts the McAllen model with an outcome-oriented, collaborative model of practice of medicine in such healthcare enterprises as the Mayo Clinic in Minnesota and Grand Junction in Colorado, which produce better quality of care while significantly lowering costs.

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Hospitals and Health Networks, magazine for the American Hospital Association, published its annual "100 Most Wired Hospitals and Health Systems" survey.  The survey measures the IT use at more than 1,300 hospitals for quality, customer service, public health and safety, business processes and workforce issues.

The survey also includes a list of "25 Most Improved," the "25 Most Wireless" and the "25 Most Wired - Small and Rural" hospitals.

Did your hospital make any of the lists?  Find out after the jump.

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According to a study by UnitedHealth Group, America's largest health insurer by market value, widespread adoption and use of HIT may save the healthcare industry and the U.S. government up to $332 billion over 10 years.  According to Reuters, modernization of current practices is the report's main tool for achieving significant savings:

The report identifies ways that technology can be applied to save money by modernizing the administrative and transactional aspects of health care.

For example, use of automated cards swiped at the doctor's office or hospital to validate patient benefits could generate $18 billion in savings alone, according to the paper.

According to the Los Angeles Business Journal, the UnitedHealth report describes additional savings by eliminating paper records:

Much of the $332 billion in savings would come from getting rid of paper records of all types at providers. For example, UnitedHealth estimates more than $108 billion would be saved in printing, postage and administrative costs by shifting payments and remittances to an electronic format.

National information systems also could save money. UnitedHealth estimates more than $47 billion could be saved if their [sic] was a national system to monitor and flag questionable health claims.

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