IGNORANCE IS NOT BLISS: THE CONSEQUENCES OF HOW LITTLE WE KNOW ABOUT COVID-19

This article, Ignorance is not bliss: The consequences of how little we know about COVID-19first appeared in the California Lawyers Association’s California Law News, 2020, Issue Three on October 25, 2020.

“Those who can make you believe absurdities can make you commit atrocities.” – François-Marie Arouet (Voltaire)

LESSONS FROM THE PAST (X37.41XA)1

Following the 1994 Northridge earthquake, California passed legislation requiring hospitals to upgrade their physical infrastructure to survive future seismic events. Twenty-six years and multiple extensions later, California hospitals face a 2030 deadline with an eleven-figure price tag.2 Spending money on what may occur is not uncommon in health care. A 2017 study commissioned by the American Hospital Association estimated that hospitals and health systems spent as much as $2.7 billion the year before to prepare for, and respond to, the threat of violence at work.3 California law requires hospitals to rehearse disaster plans at least twice each year.4

A NOVEL THREAT (A98.4)5

An expensive endeavor, hospital disaster preparedness focuses on a rapid response to an unexpected event, designed to protect, stabilize, and bring calm to shaken communities following a disaster’s aftermath. The 2019 novel coronavirus disease (COVID-19) has presented a different type of disaster, necessitating just as novel a response. In the pandemic’s early days, it moved in slow-motion as the health care community initiated disaster protocol over a period of weeks, not hours. While mobilizing any hospital to battle a pandemic is not easy, legally at least, hospitals benefitted from unprecedented support by practically every federal and state agency. The assistance from these dual agencies eliminated most barriers overnight so hospitals could establish and maintain momentum in the face of an epic disaster that, over several months, has moved forward, backward, and forward again.6Read more →

ON THE ORIGIN OF PANDEMIC

Earth laughs in flowers.”  – Ralph Waldo Emerson

Healthcare News first published this article, “On the Origin of Pandemic” on May 5, 2020.

The Battle for Planet Earth

Civilization remains under heavy attack, and for the first time in modern history almost all nations around the globe unify in battle.  The common enemy, Planet Earth, has waged war against homo sapiens since the species first ventured away from Africa to populate the rest of Earth. The planet remains undefeated in conflict and well rested since it ended all but the birds during its last global extinction campaign some 66 million years earlier.

Science speculates that Planet Earth defeated its last enemy with the help of an extra-terrestrial ally (an asteroid/meteor).  To date the planet has proven a formidable opponent, relying upon its own, antiquated but effective arsenal, employing documented textbook military strategies for over 5,000 years, including a prehistoric village in China to Athens in antiquity to Eurasia in the fourteenth century to Mexico and Central America in the sixteenth century.  Recently, Planet Earth upped its game by striking the global population in the 1918 Spanish Flu, HIV/AIDS (while still a pandemic, the virus peaked between 2005 and 2012), and most recently the 2019 novel coronavirus (COVID-19). … Read more →

The Insanity of Treating the Insane

This article the Insanity of Treating the Insane first appeared in Healthcare News on July 9, 2019.

The Insanity of Treating the Insane

“Heaven wheels above you, displaying to you her eternal glories, and still your eyes are on the ground.” – Durante di Alighiero degli Alighieri

There Is No Safety In Numbers

Not long ago, health care practitioners treated mental illness by severing connections in the brain’s prefrontal cortex.  Surgeons employed this procedure known as “the lobotomy” to reduce symptoms of mental disorder.  Those who survived the lobotomy sometimes experienced relief from mental illness as well as less spontaneity, responsiveness, self-awareness and self-control.  While the lobotomy has drifted off to medical obscurity, 75 years later an estimated 20 million Americans still embrace the idea that restricting the intellectual and emotional range of the sick mind also cures it.

Treating mental illness relies upon the subjective, while somatic matters approach illness through diagnostic testing which can often yield a more precise diagnosis.  That which is psycho has a seemingly unfair disadvantage to somatic, although general medicine has enjoyed far more decades to advance from its early days of leeches and amputations.  By comparison mental health treatment exists in its infancy.  For the patient, opioids have replaced the orbitoclast (lobotomy’s primary surgical instrument, described as an ice pick with some gradation marks), although the nine million Americans who suffer from mental illness fall somewhere within an estimated 20 million also suffering from substance use disorder (“SUD”).

The concentric circle occupied by the brain both sick and sickened may as well be infinite, at least to the extent modern medicine understands co-occurring disorders.  … Read more →

Infecting the Hippocratic Oath

Healthcare News first published this article “Infecting the Hippocratic Oath” on April 9, 2019.

“We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology.” 

–Carl Edward Sagan

Medicine Gets Sick

Somewhere deep within the labyrinth of regulations promulgated since Congress passed the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”) in 2009 exists health care’s very own Kobayashi Maru. Mindful of the draconian consequences in deviating from the so-called HIPAA Privacy Rule, health care practitioners who follow these national standards to defend individual medical records and other protected health information (“PHI”) sometimes must stand down like a Star Fleet cadet forced to watch the entire crew and passengers of another vessel perish. On the other hand, those rogue clinicians who chose rescue over risk may face attack from federal and state authorities.

Governmental response to lapses in safeguarding PHI is due, in part, to algorithmic steps undertaken by malware, including exfiltration attempts between the malware and attackers’ command and control servers, not to mention the possibility of malware propagating to other systems, potentially affecting additional sources of electronic PHI (“ePHI”). While digitizing patient medical records remains a top national priority, fear of compromising confidentiality is still its greatest obstacle. To the unwitting health care provider, the choice between an investigation by the Office of Civil Rights (“OCR”) or a threat from ordinary malware may be just as devastating as an attack from a Klingon Negh ‘Var-class warship.

The Cost to Comply

Health care must finally surrender to systemic futility when providers wage war against disease with an arsenal that protects PHI first. Even under the guise of the Hippocratic Oath and its sacrosanct directive to help or at least do not harm the patient, the physician may not risk PHI exposure. Hippocrates’ lesser known principle included an obligation to keep the “holy things” of medicine confidential, and federal and state regulations remain vigilant as to both. Those responsible for drafting patient privacy laws, however, never imagined a malicious software from cryptovirology could make public PHI or perpetually block all access until a ransom is paid, or that it would occur 181.5 million times in the first six months of 2018 alone.Read more →

What To Do About Broken

California Healthcare News first published this article “What To Do About Broken” on October 9, 2018.

iStock_000010152161Small-150x150“All of our reasoning ends in surrender to feeling.” – Blaise Pascal

An adjective, the word “broken” encompasses a multitude of meanings, most of which identify a magnitude of concern, while very few provide comfort.  Recognizing that which is broken often remains elusive, creating a daunting challenge when facing this dangerous combination. Even when a solution presents itself, the ability to surrender remains a most formidable foe. Navigating through this labyrinth, individually and as a society, is also sometimes referred to as “life.”

It is no coincidence that life usually starts and ends in a hospital. With almost 5,500 hospitals in the United States today, only by the middle of the twentieth century did these institutions become symbols of hope, slowly creating an inextricable dependence upon which the sick and infirm rely. Nearly a score into the twenty-first century, the hospital represents the primary solution when there is a threat to health. What would happen if the basket holding all of society’s proverbial eggs breaks (assuming this container is not already broken)? … Read more →

Health Care and the Laws of Nature

The Daily Journal first published this article, Health Care and the Laws of Nature, on August 8, 2018.

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“If there is no God, everything is permitted.” – Fyodor Mikhailovich Dostoevsky

The Laws of Nature

When science prevails over the laws of nature, controversy is near. Stories from antiquity warned against such hubris, like poor Icarus who plunged to his death during a maiden voyage with wings made from feathers and wax. Zeus intervened twice on the side of nature, first when he sentenced Prometheus to eternal torment for delivering the gift of fire to humanity, and again when he struck down love-stricken Orpheus with a bolt of lightning before Orpheus escaped from Hades.

Whether divine warnings or stories told to invoke fear, science celebrates similar transgressions as evidence that God may be man-made. Whether we live in a universe forged over billions of years or in just under seven days, what are the malleability of nature’s laws? In 1903 Orville Wright elevated above the ground for 12 seconds in a gasoline-powered, propeller-driven biplane, but his legacy exists today in the context of war, travel and commerce. The impact from fire on an evolutionary timeline often omits reference that 10,000 years ago a spark may have transformed tuberculosis from an environmental microbe to a deadly disease that has killed more than 1 billion people. When science finally resurrects the dinosaurs, we can ask them about nature’s resilience. … Read more →

HOSPITALS GIVE UNTIL IT HURTS

This article, Hospitals Give Until It Hurts, first appeared in California Healthcare News on April 10, 2018.

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“The formula ‘two and two make five’ is not without its attractions.” — Fyodor Dostoevsky

A 2005 report surveyed 1,771 personal bankruptcy filings, half of which cited medical expense as the cause.  For those suffering from an illness that preceded bankruptcy, individual out-of-pocket medical expenses averaged close to $12,000, and those qualifying as “medical debtors” were 42% more likely to experience lapses in health insurance coverage. This serves as the backdrop to what is commonly known in health care as “charity care” or “hospital fair pricing policies.”  Consumer advocates blamed hospitals as the cause of this financial epidemic, fueled by the absence of any law or regulation regarding the prices that uninsured and underinsured consumers/patients paid for health care, not to mention the collection practices employed by those entities insisting upon payment for services rendered.

Health Care By Robin Hood

Fundamentally there should be nothing wrong with accepting from those patients without financial means less money than wealthier patients for similar services. Certain laws are inconsistent with this medical benevolence, such as one federal statute that prohibits health care providers from submitting a bill for payment substantially in excess of that entity’s usual charges for these items or services.  The penalty for violating this law, 42 U.S.C. § 1320a-7(b)(6), is possible exclusion from Federal health care programs such as Medicare and Medicaid. The California Court of Appeal, Fifth District, offered another reason why hospitals should refrain from such generosity, specifically after the seminal 2014 decision in Children’s Hospital of Central California v. Blue Cross of California (226 Cal. App. 4th 1260). After decades of fighting between non-contracting providers and insurance companies, the best advice the judicial system had to offer in defining “reasonable value” was past agreements to pay and accept a particular price.

Nevertheless, legislators believed the ways in which hospitals should bill the uninsured could not be left to chance, and in 2005 California passed Assembly Bill 774 which required hospitals to develop a policy specifying how it will determine financial liability for services rendered to financially qualified patients and those patients without any insurance.  In part, AB 774 (1) placed limitations on billing and collection practices for hospitals as well as their billing agents, (2) required hospitals to submit to the Office of Statewide Health Planning and Development (OSHPD) their plan to comply with the new obligations, and (3) charged the Office of the Attorney General with enforcing transgressions. … Read more →

The Senator Will See You Now0

California Healthcare News first published this article “The Senator Will See You Now” on July 11, 2017.

The Senator Will See You Now“It occurred to me that my speech or my silence, indeed any action of mine, would be a mere futility.”  — Joseph Conrad

On May 4, 2017, the U.S. House of Representatives passed the American Health Care Act of 2017 (“AHCA”) by a picayune margin of just four votes. Commonly referred to as the most recent legislation designed to “repeal and replace” the 2010 Patient Protection and Affordable Care Act (the “ACA”), the Senatorial counterpart to the ACHA, known as the Better Care Reconciliation Act of 2017 (“BCRA”), today rests in the hands of 52 Republican, 46 Democratic and 2 Independent U.S. Senators, as the nation waits for word on the fate of the ACA and President Obama’s legacy in the spectrum of health care reform.

There should be no cause for alarm when it comes to the hospital institution, enveloped as it is by a veritable blanket of seasoned health care practitioners with access to a formidable armory replete with 21st century medicine that defies science fiction, including cutting-edge technology that may have finally surpassed the elusive tricorder.  As the average life expectancy in the United States hovers on the cusp of 79 years, due in part to the acceptance of mental health parity and near elimination of yellow fever, smallpox, malaria, measles and diphtheria, the nation should be proud of its health care system and supportive of the estimated 23% of the nation’s $7 trillion annual budget it consumes.Read more →

The House that Cried Wolf0

This article “The House that Cried Wolf” first appeared in the Daily Journal on May 10, 2017.

iStock_000009605208Medium“The hardest thing of all is to find a black cat in a dark room, especially if there is no cat.”  – Confucius

An Exercise in Futility?

When it comes to the Patient Protection and Affordable Care Act (the “ACA”), there is one thing on which both proponents and detractors can agree – this curious, far-reaching, highly controversial bill is a survivalist. Fraught with controversy and conflict from its inception, the bill found itself with a target on its back less than one full year after President Obama signed it into law, as the “Repealing the Job-Killing Health Care Law Act,” introduced in January 2011, passed the House of Representatives (the “House”) by a lopsided vote of 245-189. Four months later, a bill to repeal the ACA’s funding for health insurance exchanges passed the House by a similar margin of 55 votes. In 2012, the “Repeal of Obamacare Act” passed the house by a vote of 244-185, followed close behind by a 2013 bill of like-minded intent which passed the House by a vote of 299-195. Still another passed the House in 2015 by a vote of 239-186.  Whether threatened by death from subcommittee or senatorial action, Obamacare nonetheless persevered through these partisan attacks.

Throughout Obama’s tenure, numerous other attempts designed to retard or even sabotage various aspects of the ACA passed the House with flying colors, such as the 2014 bill suspending the Individual Mandate penalty. It was not until 2015, however, that both the House and Senate passed the “Restoring Americans’ Healthcare Freedom Reconciliation Act of 2015,” a bill vetoed by President Obama in early 2016.  Most recently, on May 4, 2017, the House passed the latest attempt to repeal and replace the ACA by a slim margin of four votes (217-213). Fueled by the nation’s enigmatic, 45th President and coming just six months after the Chicago Cubs won their first World series in 108 years, the “American Health Care Act of 2017” (“AHCA”) seems to have everyone’s attention, even if the actual contents of H.R. 1628 remain elusive at best to both experts and laymen alike.Read more →

A Time to Kill HIPAA1

This article “A Time to Kill HIPAA” first appeared in the Daily Journal on May 5, 2017.

iStock_000006020673Large“Sarcasm:  the last refuge of modest and chaste-souled people when the privacy of their soul is coarsely and intrusively invaded.” – Fyodor Mikhailovich Dostoevsky

Imagine a world in which a basic identification card contained a lifetime of medical information, immediately accessible during a routine physical or life-threatening emergency. The technology behind such seeming science fiction could heal a fragmented health care system, affording providers access to critical information in a timely manner to ensure the highest standard of care with maximum efficiency.  Only a few years ago, such inefficiencies inherent at the core of American health care provision resulted in as much as $226 billion in increased spending annually, yet salient health care information remained just out of a provider’s technical reach.

The greatest obstacle standing between American health care and the elusive, omnipotent digital medical record turns 21 this summer, the equivalent of a modern-day Methuselah in an industry defined by zeros and ones. Born the same year Google launched and the price of gasoline was $1.22 per gallon, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) sought to improve portability and continuity of health insurance coverage by, among other things, adopting standards for organizations to develop ways in which electronic health transactions could improve health care while also addressing the security of electronic health information systems. HIPAA’s privacy component debuted in 1999, followed by a series of modifications in 2002, as well as the addition of a security rule in 2003 and an enforcement rule addendum in 2006.  Changes in health care and technology during the first decade of HIPAA ultimately led to the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act, which specifically focused on the privacy and security concerns associated with electronic transmission of health information by strengthening the civil and criminal enforcement components within HIPAA.

Together, HIPAA and HITECH revolutionized the way health care providers (also known as “covered entities”) and the non-clinical entities with which they teamed (also known as “business associates”) shared and made available for use patient health information (PHI). With such broad definitions of “breach” and the resultant draconian punishments for noncompliance, HITECH sent the act of sharing health care information back in time in many ways, forcing providers to rely upon the United States Post Office to deliver highly personal, often time-sensitive, sometimes life or death information, while improvements were made to the infrastructures within which electronic and facsimile transmissions took place. Purportedly simplified in 2013 through even more regulatory modifications, modern day HIPAA regulation affords practically no room for error for those who utilize technology as a way to improve the delivery of health care in the United States. As it turns out, we have come to learn that health care is more about perseverance than perfection.Read more →