Google Flu Trends have launched an Experimental Flu Trends for Mexico as a result of the ongoing concern over the current swine flue outbreak. The experimental model for Mexico shows estimates on possible flu activity in the various states in Mexico. Google Flu Trends uses aggregated Google search data to estimate possible flu activity in near real-time.
Additional details on how the Experimental Flu Trends for Mexico works and FAQs. More information about Google Flu Trends in my prior post.
Thanks to @rzeiger for the Twitter tip on the launch of the experimental tracker.
Wednesday, April 29, 2009
Friday, April 24, 2009
AHLA Teleconference: HIPAA Privacy Fundamentals
Next month I will be co-presenting on an American Health Lawyer Association Teleconference on the topic of HIPAA Privacy Regulation Fundamentals - An Introductory Course.The teleconference is scheduled for May 13, 2009, 1:00 - 2:30 pm EST. My co-presenter is Rebecca L. Williams of Davis Wright Tremaine LLP and the moderator will be Phyllis Granade of Adorn & Yoss.
This teleconference is geared toward a gaining a basic understanding of HIPAA privacy law for health lawyers (think, HIPAA 101). We will also be discussing the impact of the changes unde rthe HITECH Act of 2009. Although geared toward health lawyers this teleconference would also be valuable for health care professionals and others in the industry interested in learning more about HIPAA.
You can find out more about the teleconference and how to register via the AHLA website.
WV Senator Rockefeller: The Health Information Technology Public Utility Act of 2009
Yesterday West Virginia Senator Jay Rockefeller introduced "The Health Information Technology Public Utility Act of 2009"(Senate Bill 890) to facilitate the nationwide adoption of electronic health records (EHRs) though an "open source" public utility model.
A copy of Senate Bill 890 is available on Thomas (GPO PDF version). According to the press release the Act would:
A copy of Senate Bill 890 is available on Thomas (GPO PDF version). According to the press release the Act would:
- Create a new federal Public Utility Board within the Office of the National Coordinator for Health IT to direct and oversee formation of this HIT Public Utility Model, its implementation, and its ongoing operation.
- Implement and administer a new 21st Century Health IT Grant program for safety-net providers to cover the full cost of open source software implementation and maintenance for up to five years, with the possibility of renewal for up to five years if required benchmarks are met.
- Facilitate ongoing communication with open source user groups to incorporate improvements and innovations from them into the core programs.
- Ensure interoperability between these programs, including as innovations are incorporated, and develop mechanisms to integrate open source software with Medicaid and CHIP billing.
- Create a child-specific Electronic Health Record (EHR) to be used in Medicaid, CHIP, and other federal children’s health programs.
- Develop and integrate quality and performance measurement into open source software modules.
Tuesday, April 21, 2009
Microsoft and Mayo Clinic Collaboration: Mayo Clinic Health Manager
Today Microsoft Corporation and Mayo Clinic announced a new consumer online health service called Mayo Clinic Health Manager, build on the HealthVault platform.
The press release states that Mayo Clinic Health Manager provides individuals "a place to store medical information and receive real-time individualized health guidance and recommendations based on the clinical expertise of Mayo Clinic . . . [extending] the capabilities of traditional personal health records, using an individual's health information to generate customized recommendations on which they can act to help them better manage their health and the health of their families."
Learn more from the Media Kit or take a tour.
How does this change the current PHR landscape?
Like others who have been commenting today I see this as combining the power brand of Mayo Clinic and its guidelines with what appears to be simple PHR tools designed to allow you to record, track, monitor, etc. your health information. However, at this point it still doesn't get over the hurdle of the individual having to individually input their own data.
Will health consumers become engaged to take on this role? Can providers and payors start to feed good data into the system to lessen the burden on the consumer/patient? What role will state and federal payors play in these systems? How will we all address the issues raised by Dave deBronkart (e-patientDave) which have been the center of discussion on the health blogosphere the past couple of weeks.
More questions than answers.
UPDATE (4/23/09): Did Microsoft sign a HIPAA Business Associate Agreement as a part of the collaboration? In HIPAA lawyer jargon the real question is "whether Mircrosoft is offering a service for or on behalf of the Mayo Clinic and is receiving protected health information." Answer per Microsoft from Nei Versel's Healthcare IT Blog.
The press release states that Mayo Clinic Health Manager provides individuals "a place to store medical information and receive real-time individualized health guidance and recommendations based on the clinical expertise of Mayo Clinic . . . [extending] the capabilities of traditional personal health records, using an individual's health information to generate customized recommendations on which they can act to help them better manage their health and the health of their families."
Learn more from the Media Kit or take a tour.
How does this change the current PHR landscape?
Like others who have been commenting today I see this as combining the power brand of Mayo Clinic and its guidelines with what appears to be simple PHR tools designed to allow you to record, track, monitor, etc. your health information. However, at this point it still doesn't get over the hurdle of the individual having to individually input their own data.
Will health consumers become engaged to take on this role? Can providers and payors start to feed good data into the system to lessen the burden on the consumer/patient? What role will state and federal payors play in these systems? How will we all address the issues raised by Dave deBronkart (e-patientDave) which have been the center of discussion on the health blogosphere the past couple of weeks.
More questions than answers.
UPDATE (4/23/09): Did Microsoft sign a HIPAA Business Associate Agreement as a part of the collaboration? In HIPAA lawyer jargon the real question is "whether Mircrosoft is offering a service for or on behalf of the Mayo Clinic and is receiving protected health information." Answer per Microsoft from Nei Versel's Healthcare IT Blog.
Fourth Circuit Affirms Summary Judgment Under Health Care Quality Improvement Act of 1986
Congratulations to my partners, Rick Jones and David Givens for successfully defending Charleston Area Medical Center, Inc. before the United States Court of Appeals for the Fourth Circuit in the matter of Wahi v. Charleston Area Medical Center, Inc., et al., Slip Op. No. 06-2162 (4th Cir. April 10, 2009). Rick argued the case against well known lawyer, Kenneth Starr, who represented Rakesh Wahi, M.D., the appellant in the matter.
Following is a summary and some of the significant points regarding the impact on peer review privileges.
Wahi v. Charleston Area Medical Center, Inc., et al., Slip Op. No. 06-2162 (4th Cir. April 10, 2009) is a significant decision analyzing the immunity provisions of the Health Care Quality Improvement Act of 1986 (“HCQIA”). It affirms summary judgment on various claims made by the Plaintiff, a cardiothoracic surgeon, arising from the suspension of his privileges at Charleston Area Medical Center (“CAMC”), a Charleston, West Virginia hospital. The underlying facts and procedural history span over a decade of Dr. Wahi's tenure at CAMC. Dr. Wahi was granted privileges at CAMC in 1993. For a variety of reasons, CAMC summarily suspended his privileges in 1996 and reported the suspension, as required, to the National Practitioner Data Bank ("NPDB"). Following rehabilitative efforts, Dr. Wahi was granted restricted privileges.
Subsequently, there were documented instances of Wahi practicing outside the scope of his restricted privileges, as well as charges of practicing below the standard of care. In July 1999, Dr. Wahi was again summarily suspended, and requested a hearing under the applicable provisions of the hospital’s governing documents.
Not satisfied with the hearing procedures set forth in the governing documents, Dr. Wahi retained counsel to negotiate with the hospital over the hearing process. He objected to the hearing examiners, procedures, and ultimately sought the intervention of a state circuit court before the hearing process even began. Following the state court's refusal to intervene, Dr. Wahi ceased efforts to move forward with the hearing process and, some five years later, filed suit in the United States District Court for the Southern District of West Virginia alleging anti-trust monopolization and conspiracy, breach of contract, civil rights conspiracy, defamation and breach of contract. Following limited discovery on the application of immunity under HCQIA1, CAMC moved for summary judgment. Judge Goodwin granted CAMC's motion as to all counts finding that Dr. Wahi failed to rebut the statutory presumption of immunity. Dr. Wahi appealed.
The Fourth Circuit found that Dr. Wahi abandoned any appellate claim as to three of the four prongs under the HCQIA immunity standards and focused its immunity analysis solely on the issue of whether CAMC’s failure to actually set and hold a hearing deprived the hospital of its legally presumed immunity.
The Fourth Circuit affirmed summary judgment, finding the hospital was immune for its actions under the HCQIA despite the fact that a hearing was never actually scheduled or conducted. CAMC’s notification to Dr. Wahi of the charges, the hospital’s many attempts to provide a hearing, and Dr. Wahi’s non-cooperation in the hearing process led the court to conclude that CAMC’s process, when considered in its totality, satisfied the minimum standard of reasonableness required under HCQIA. The Court found that Dr. Wahi’s evidence was simply insufficient to overcome the statutory presumption of immunity under HCQIA, and affirmed the district court's ruling.
The Court also affirmed the District Court’s refusal to grant injunctive relief, finding Wahi did not prove CAMC committed any wrong; that CAMC was not a “state actor” for purposes of § 1983 claims; that he failed to amend his complaint to include a defamation claim, making it non reviewable on appeal; and, that because the hospital bylaws did not form a contract under state law, Dr. Wahi could not allege breach of contract for any violation of the bylaws. A final argument rejected by the Court was Dr. Wahi’s claim that CAMC breached confidentiality required by 45 C.F.R. § 60.13 by disclosures to the press, finding the NPDB “does not prevent the entity who reported NPDB from disclosing the mere fact that a report was filed.”
The Wahi opinion has significance for hospitals and others involved in peer review matters:
Following is a summary and some of the significant points regarding the impact on peer review privileges.
Wahi v. Charleston Area Medical Center, Inc., et al., Slip Op. No. 06-2162 (4th Cir. April 10, 2009) is a significant decision analyzing the immunity provisions of the Health Care Quality Improvement Act of 1986 (“HCQIA”). It affirms summary judgment on various claims made by the Plaintiff, a cardiothoracic surgeon, arising from the suspension of his privileges at Charleston Area Medical Center (“CAMC”), a Charleston, West Virginia hospital. The underlying facts and procedural history span over a decade of Dr. Wahi's tenure at CAMC. Dr. Wahi was granted privileges at CAMC in 1993. For a variety of reasons, CAMC summarily suspended his privileges in 1996 and reported the suspension, as required, to the National Practitioner Data Bank ("NPDB"). Following rehabilitative efforts, Dr. Wahi was granted restricted privileges.
Subsequently, there were documented instances of Wahi practicing outside the scope of his restricted privileges, as well as charges of practicing below the standard of care. In July 1999, Dr. Wahi was again summarily suspended, and requested a hearing under the applicable provisions of the hospital’s governing documents.
Not satisfied with the hearing procedures set forth in the governing documents, Dr. Wahi retained counsel to negotiate with the hospital over the hearing process. He objected to the hearing examiners, procedures, and ultimately sought the intervention of a state circuit court before the hearing process even began. Following the state court's refusal to intervene, Dr. Wahi ceased efforts to move forward with the hearing process and, some five years later, filed suit in the United States District Court for the Southern District of West Virginia alleging anti-trust monopolization and conspiracy, breach of contract, civil rights conspiracy, defamation and breach of contract. Following limited discovery on the application of immunity under HCQIA1, CAMC moved for summary judgment. Judge Goodwin granted CAMC's motion as to all counts finding that Dr. Wahi failed to rebut the statutory presumption of immunity. Dr. Wahi appealed.
The Fourth Circuit found that Dr. Wahi abandoned any appellate claim as to three of the four prongs under the HCQIA immunity standards and focused its immunity analysis solely on the issue of whether CAMC’s failure to actually set and hold a hearing deprived the hospital of its legally presumed immunity.
The Fourth Circuit affirmed summary judgment, finding the hospital was immune for its actions under the HCQIA despite the fact that a hearing was never actually scheduled or conducted. CAMC’s notification to Dr. Wahi of the charges, the hospital’s many attempts to provide a hearing, and Dr. Wahi’s non-cooperation in the hearing process led the court to conclude that CAMC’s process, when considered in its totality, satisfied the minimum standard of reasonableness required under HCQIA. The Court found that Dr. Wahi’s evidence was simply insufficient to overcome the statutory presumption of immunity under HCQIA, and affirmed the district court's ruling.
The Court also affirmed the District Court’s refusal to grant injunctive relief, finding Wahi did not prove CAMC committed any wrong; that CAMC was not a “state actor” for purposes of § 1983 claims; that he failed to amend his complaint to include a defamation claim, making it non reviewable on appeal; and, that because the hospital bylaws did not form a contract under state law, Dr. Wahi could not allege breach of contract for any violation of the bylaws. A final argument rejected by the Court was Dr. Wahi’s claim that CAMC breached confidentiality required by 45 C.F.R. § 60.13 by disclosures to the press, finding the NPDB “does not prevent the entity who reported NPDB from disclosing the mere fact that a report was filed.”
The Wahi opinion has significance for hospitals and others involved in peer review matters:
- HCQIA provides a means of minimizing and limiting discovery to issues related to the availability of immunity to a hospital. HCQIA provides a vehicle through which a hospital may obtain summary disposition of cases without running the risks associated with a jury trial.
- For a hospital to avail itself of HCQIA immunity, there need not be precise compliance with all the elements of one’s governing documents, but the hospital may show from a totality of the circumstances that its handling of the matter was objectively reasonable.
- HCQIA’s “safe harbor” provisions should be read expansively and not narrowly construed.
- The reasonableness of a hospital’s actions is not a subjective determination, and neither good nor bad motives should be considered; rather, the court should look at the objective, overall reasonableness of the hospital’s actions, even if it is later determined that the facts were different or the standard of care was actually met.
- A hospital should use care in properly documenting the information upon which it acts and the manner of notifying the physician of the charges and, above all else, make sure the physician is fully advised of the charges and given the opportunity to explain or rebut any charges against him. Proper documentation of all the steps required for HCQIA is crucial.
The Economist: Health 2.0 How far can interactive digital medicine go?
The Economist looks in on Health 2.0 in the article, Health 2.0: How far can interactive digital medicine go?
Highlights for me:
Highlights for me:
- Quote by Neil Seeman who thinks Health 2.0 is important "because it reinvents how we identify opinion leaders and exploit disruptive innovation."
- Steve Case, founder of America Online, who likens the current state of digital medicine to the late 1970s hwen Apple ushered in the age of personal computing.
- Concluding remarks taht Health 2.0 might not be revolution but instead reformation and recognition that the shift towards patient empowerment is "unstoppable."
Sunday, April 19, 2009
HITECH Act Breach Notification Guidance: What Renders PHI Unusable, Unreadable or Indecipherable For Purposes of Breach Notification?
On April 17, 2009, the U.S. Department of Health & Human Services (HHS) issued guidance on the technology requirements to render protected health information (PHI) "unusable, unreadable or indecipherable to unauthorized individuals, as required by the Health Information Technology for Economic and Clinical Health Act (HITECH) which is a part of the American Recovery and Reinvestment Act of 2009 (ARRA).
The April 27, 2009 Federal Register (74 FR 19006),contains the official copy of the regulation, Guidance Specifying the Technologies and Methodologies That Render Protected Health Information Unusable, Unreadable, or Indecipherable to Unauthorized Individuals for Purposes of the Breach Notification Requirements Under Section 13402 of Title XIII (Health Information Technology for Economic and Clinical Health Act) of the American Recovery and Reinvestment Act of 2009; Request for Information
The guidance is effective as of April 17, 2009. However, the guidance will apply to breaches 30 days after publication of the interim final regulations.
HHS's press release on the guidance states:
The April 27, 2009 Federal Register (74 FR 19006),contains the official copy of the regulation, Guidance Specifying the Technologies and Methodologies That Render Protected Health Information Unusable, Unreadable, or Indecipherable to Unauthorized Individuals for Purposes of the Breach Notification Requirements Under Section 13402 of Title XIII (Health Information Technology for Economic and Clinical Health Act) of the American Recovery and Reinvestment Act of 2009; Request for Information
The guidance is effective as of April 17, 2009. However, the guidance will apply to breaches 30 days after publication of the interim final regulations.
HHS's press release on the guidance states:
The guidance issued today provides steps entities can take to secure personal health information and establishes the trigger for when entities must notify that patient data has been compromised. This guidance is related to “breach notification” regulations, which will be issued by HHS and the Federal Trade Commission respectively. The HHS regulations will apply to entities covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the FTC regulation will apply to vendors of personal health records and certain others not covered by HIPAA. The Recovery Act requires that these regulations be published within 180 days of enactment.The guidance also seeks public comments on the guidance as well as the breach notification provisions under FTC's new Health Breach Notification Rule and the yet to be releases HHS Breach Notification Requirements for HIPAA Covered Entities and Business Associates. Public comments must be submitted on or before May 21, 2009.
The guidance was developed through a joint effort by the HHS Office for Civil Rights (OCR), Office of the National Coordinator for Health Information Technology (ONC), and Centers for Medicare &Medicaid Services (CMS).
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