Health Care’s Unfinished Bridge0

This article, Health Care’s Unfinished Bridge, was first published in California Healthcare News on April 5, 2016.

Health Care's Unfinished Bridge“We must be willing to let go of the life we planned so as to have the life that is waiting for us.” – Joseph Campbell

Every era relies on the intuition of a talented few in its search for scientific breakthroughs. Herodotus rejected the notion the Earth was flat, and in particular its description on the Shield of Achilles in Homer’s Iliad. Some 29 centuries later, science has reduced the labors of Homer to little more than myth, though philosophy still honors the epic, from its very first word (“μῆνῐν” or “wrath”) to its lesson addressing the value of balancing excessive pride with the fear of anonymity. Similarly, advances in technology have greatly benefited medicine in recent generations, as doctors increasingly approach diseases of the body from a tangible perspective. However, the treatment of diseases of the mind continues to be far more speculative in nature, serving to highlight the chasm between these two seemingly similar but ultimately disparate fields. This in turn presents a complex issue for both medical practitioner and mental health provider. … Read more →

Health Care’s Adventures in Wonderland0

This article by Craig B. Garner[1] and Jessica Weizenbluth[2], Health Care’s Adventures in Wonderland: Provider Agreements for Electronic Records, was first published in February 2016 in California Health Law News.

iStock_000068974059_Large“Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”[3]

I.  INTRODUCTION

Y93.J1: Activity, piano playing[4]

Today’s health care provides its own spin on the word “complex,”[5] while at the same time forging possible paths to what may be “unwinnable” scenarios.[6] For the modern physician[7], the universe within which he or she exists requires updated definitions for words such as “complex” and “challenging,” especially as that “perfect storm”[8] also known as health care reform continues to age. Somewhere in between the 2015 Physician Quality Reporting System (“PQRS”)[9], the Physician Value Based Payment Modifying Policies (“VBP”)[10] and tenth revision of the International Statistical Classification of Diseases and Related Health Problems (also known as ICD-10),[11] physicians find themselves still struggling to adopt electronic health records (“EHR”) in practice.[12]

As technology continues to evolve, there remains a general landscape with which those in the health care field must familiarize themselves. Even from this challenging vantage point, providers still have opportunities to bolster their position and practice their craft as they continue down the digital path and adopt an EHR system for which the Federal Government established incentive payments.[13]Read more →

Killing HIPAA0

This article, Killing HIPAA, first appeared in California Healthcare News on February 8, 2016.

iStock_000012752406_Large“When truth is buried, it grows. It chokes. It gathers such an explosive force that on the day it bursts out, it blows up everything with it.” -Emile Zola

The issue of confidentiality when applied to modern American healthcare is fraught with differing objectives, creating myriad complications as the needs of each attempt to merge together in their search for common ground and compromise. To arrive at a sense of clarity, we must look to those exceptions that define the fundamental system of rules at the heart of our nation’s health care structure, as the conflicting areas to be found within shed light on the vulnerabilities of the concept as a whole. The demands of federal statutes aside, gray areas abound, since attorneys can breach the duty of confidentiality in response to threats against life or to prevent substantial bodily harm, physicians must answer to certain matters of public health before protecting the secrets of the patient, and spouses can freely tell all when it comes to the actions of their partner, even if the words between them remain protected. … Read more →

HIPAA: Society’s Modern Day Prohibition0

This article, HIPAA: Society’s Modern Day Prohibition, was first published in California Healthcare News on May 4, 2015.

HIPAA: Society’s Modern Day Prohibition
HIPAA: Society’s Modern Day Prohibition

Secrets, silent, stony sit in the dark palaces of both our hearts: secrets weary of their tyranny: tyrants willing to be dethroned.” – James Joyce, Ulysses

Codified in American Law through Article Three of the United States Constitution and evolving through changing times by way of the Sixth and Fourteenth Amendments, the right to trial by jury remains a sacrosanct keystone of our nation’s legal system. Even so, there exists a degree of delicacy with which the judicial system evaluates the facts of any given case, and all involved must remain mindful that at times pertinent information may not be available for consideration. Significant violations of judicial filtering may result in the end of deliberations, known more abrasively as a “mistrial.”

The judicial system understands all too well that information cannot be honestly disregarded or ignored once heard, and does its best to account for the imperfections of the human mind. To enforce the Constitutional tenets of trust and truth upon which the faith of a jury must rest, today’s health care providers find themselves held to a unique standard of scrutiny when dealing with issues of privacy.Read more →

Advancing Health Care The Old-Fashioned Way0

This article, Advancing Health Care the Old-Fashioned Way, was first published by Healthcare Innovation News on February 8, 2015.


Stethoscope and hourglass with book.“Nothing recedes like progress.”
— Edward Estlin (e.e.) Cummings

Though cutting-edge technology serves as the foundation for modern American healthcare, an accurate measure of progress must consider the occasional conflict between society and science. Even as yesterday’s medical miracles give way to what are now considered “state of the art” practices, it is the duty of health care providers to remain mindful of both sides of the equation, balancing the capabilities of today’s technologies with the needs of today’s patient. If society and science are not in sync, patient care will suffer, and sometimes we can only advance healthcare through old-fashioned methods. For example, radiology information systems (RIS) and picture archiving and communication systems (PACS) collaborate to deliver dynamic and brilliant medical images to any healthcare provider around the globe with access to a desktop computer or mobile device. And yet, if these technologically advanced tools of the trade fail to employ the appropriate methods of encryption as they transmit digital health information to a doctor’s iPad as he or she vacations on the island of Tristan da Cunha, or worse, send this sensitive information to the hard drive of any one of the island’s 297 permanent residents living in the recesses of the Atlantic Ocean, a data breach occurs. This is no small matter for the hospital of today, and could easily result in a series of fines that could force the shutting of its doors for a single infraction.

Read more →

A Brave New Medicare0

This article, A Brave New Medicare, was first published in California Healthcare News on February 4, 2015. 

Caduceus background“Consistency is contrary to nature, contrary to life. The only completely consistent people are dead.” —Aldous Huxley

Next month the Affordable Care Act turns five, and by all accounts the influence of this historic legislation will forever change the landscape of health care in the United States, regardless of its ultimate fate. As each passing year introduces thousands of new regulatory pages to an already expansive body of federal and state law, praise for what has come to be known as health care reform is only rivaled by the relentless partisan calls for its repeal.

Recognition of the Affordable Care Act’s more laudable accomplishments should not be overlooked, especially the elimination of preexisting conditions, an overall reduction in the number of uninsured, and, according to some experts, findings that point to an actual slowing in health care spending at a national level. On the other hand, we as a nation must also be mindful of any collateral damage caused by reform, especially when considering that the immediate statistical data used to document the success of reform tends to present itself easily, while the longer-term, potentially less favorable information upon which the Affordable Care Act can also be judged may take decades to unfold.Read more →

HIPAA Privacy in Emergency Situations0

iStock_000019241379SmallThis State Bar of California Health Law E-Bulletin was published on November 19, 2014.

In response to concerns about the spread of Ebola Hemorrhagic Fever, the United States Department of Health and Human Services (“HHS”), Office of Civil Rights (“OCR”) issued a bulletin clarifying the ways in which the HIPAA Privacy Rule applies in emergency situations. Designed to protect the privacy rights of patients’ protected health information (“PHI”), OCR is mindful that in certain events health care providers must balance privacy rights with the need to protect the nation’s public health. The Privacy Rule provides for certain exceptions on a daily basis:

*  The Privacy Rule permits covered entities to share patient information without authorization when it is necessary to treat the patient (or to treat different patients).

*  Public health authorities and other parties responsible for ensuring public health and safety have access to PHI. This includes possible disclosure to a public health authority, at the direction of a public health authority, or to individuals at risk of contracting or spreading a disease or condition.

Read more →

California’s Annual Data Breach Report0

statebarlogoThis November 7, 2014, e-Bulletin is from the Health Law Committee of the Business Law Section of the California State Bar.

In the October 2014 California Data Breach Report, Attorney General Kamala D. Harris offers a number of recommendations to protect the 38 million consumers in California, the same state where 17 percent of 2012 data breaches in the United States occurred and with a 28 percent increase in 2013. Some key findings from the AG’s report include:

  • In 2013 the AG’s Office received 167 data breach reports.
  • The retail industry reported the most breaches in 2013 (26 percent). Health care made up for 15 percent of statewide breaches in 2013.
  • More than half of the 2013 breaches (53 percent) were caused by computer intrusions (malware and hacking). The remaining breaches resulted from physical loss or theft of laptops or other devices containing unencrypted personal information (26 percent), unintentional errors (18 percent) and intentional misuse by insiders (4 percent).
  • Between 2012 and 2013, lost or stolen hardware or portable media containing unencrypted data made up the majority of breaches in the health care sector (70 percent).

Read more →

Safeguarding the Pharmaceutical Distribution System0

This October 23, 2014, e-Bulletin is from the Health Law Committee of the Business Law Section of the California State Bar.

statebarlogoIn November 2013, Congress passed and President Obama signed into law the Drug Quality and Security Act (the “2013 Act,” Public Law 113-54), which intended to create uniform, national licensing standards for wholesale distributors and third-party logistics providers for the purpose of safeguarding the pharmaceutical distribution system.  In passing this new law, Congress recognized the need for clarity in distinguishing between manufacturers, wholesalers and distributors. To this end, the 2013 Act established uniform, national licensing standards that specifically preempted existing state licensing requirements for participation in the supply chain of pharmaceutical products. … Read more →

Medicare: The Perpetual Balance Between Performance and Preservation0

This article was first published in the Journal of Contemporary Health law & Policy on August 1, 2014.

iStock_000039923254Medium“Confusion is a word we have invented for an order which is not understood.” — Henry Miller, Tropic of Capricorn

Passed by Congress and signed by President Lyndon Johnson into law in 1965, Medicare has weathered storms from all directions, growing to be the preeminent standard for health insurance in the United States.  The idea of losing Medicare as a vital public benefit still remains the single greatest fear with which each passing generation of Americans must contend, and yet, these challenges over the past fifty years, designed to fortify Medicare’s foundation and ensure its longevity, continue to take a toll on the program.

The most recent climate of reform includes changes implemented by the Patient Protection and Affordable Care Act (“PPACA”).  The PPACA is designed to expand coverage for a broader group of people, yet it adds unprecedented layers of complexity such that it may be but a matter of time before the confusion experienced by today’s providers proves to be Medicare’s undoing altogether.  The decades of trial and error upon which health care in the United States have been built, at least from the point of view of both physicians and lawmakers who watch from the sidelines, may give way to confusion and disruption industry-wide as a result of newly enacted regulations.

Today, Medicare is the preeminent standard for health insurance in the United States, expanding despite fluctuations in the economic, political and social climate since its initial passage.  However, in its struggle toward sustainability, the Medicare Program must understand the resulting consequences as it distances itself further and further from its original simplicity in 1965.

Medicare’s original cost-based system gave way in the 1980s to the Prospective Payment System (“PPS”), an event noted by many with great concern.  Under PPACA, the Medicare system takes another monumental step as it incorporates elements of performance into the PPS.  Formulaic and confusing, Medicare’s recent approach to provider reimbursement has been likened to Finnegan’s Wake by James Joyce, a book that some critics warn requires “skeleton keys” to understand.  In many ways, the need for hospitals and physicians to understand these performance-based measures may seem less important when fear of Medicare insolvency looms in the distance,13 especially as it relates to Medicare Part A (hospital insurance benefits for inpatient services) and Medicare Part B (supplemental insurance for outpatient services, among other things).  Irrespective of the fleeting grasp providers may have over PPACA’s new Medicare system, hospitals and physicians alike are mindful that the PPS as they once knew it is gone, replaced in part with the beginnings of a performance-based Medicare in which they may lose precious revenue, one percentage point at a time.

The entire article can be viewed here.