Health Care Law Blog

Friday, July 14, 2006

Update on West Virginia's Participation in Health Information Security & Privacy Collaborative Project

Over the past few months I have had the opportunity to participate in the Legal Working Group of the Health Information Security & Privacy Collaborative (HISPC) being co-managed by the West Virginia Health Care Authority and West Virginia Medical Institute.

Following is an AP press release on the current status of the grant project in West Virginia which involves looking at the current barriers in West Virginia (legal, practical and otherwise) faced by health care providers as they work to move toward an interoperable health information system. Similar projects are occuring in various states and all of the information will then be combined to get a national perspective on the barriers.

The following article has appeared in Modern Healthcare and the local newspapers. It is my understanding that a more detailed article will appear in the State Journal in the coming weeks. For more information on the project you can check out WVMI HISPC website.

W.Va. agencies seek to protect privacy on state network
Being able to access personal medical information electronically might sound a little scary to some patients and healthcare providers. That's why the West Virginia Health Care Authority and the West Virginia Medical Institute are being asked to review existing privacy and security policies and regulations and business practices within the healthcare industry.

The agencies will be consulting with members of the medical community and consumers, trying to figure out how to protect patient confidentiality as they prepare to launch a statewide network containing medical histories, test results and other medical information.

With a patient's consent, that information would be electronically available to any medical provider in the state. In addition to creating the public-private network, a new state law passed earlier this year would allow secure electronic consultations between doctors and patients.

The West Virginia authority will be appointing a board of directors later this summer to plan and implement the statewide network.

Last month, West Virginia University Hospital and University Health Associates signed a contract for a $40 million information technology system that streamlines record-keeping and record-sharing at the Physicians Office Center, WVU Cheat Lake Physicians office and the WVU Harpers Ferry Family Medicine Center. It also consolidates several systems at Ruby Memorial Hospital, WVU Children's Hospital and Chestnut Ridge Hospital.

Thursday, July 13, 2006

West Virginia Hospital For Sale

Today's Charleston Daily Mail is reporting that St. Francis Hospital in Charleston and St. Joseph's Hospital in Parkersburg are again up for sale and according to the Daily Mail's sources the hospitals bids for the facilities are due on Friday. The article cites a recent article in Modern Healthcare about the sale of the four hospitals by HCA to Lifepoint.

In the June 30, 2006, new release by Lifepoint Hopsitals it was announced that St. Francis and St. Joseph's Hospital were classified as assets held for sale.

Google Health Portal

I've notice word circulating about a Google Health portal referred to as Google Health Scrapbook or M Scrapbook. Although I've expected Google's involvment in the health care industry sector, it will be interesting to watch Google approach on providing service to patients/customers, providers and others in the health care industry.

Thanks to the Wired General Counsel for the tip.

Tuesday, July 11, 2006

WV Hospital Licensure Rule

I recently became aware that the West Virginia Hospital Licensure Rule, CSR 64-12-1, was amended this past legislative session and became effective on May 1, 2006. I haven't had a chance to perform a paragraph by paragraph review of the changes but did notice that the regulations regarding retention of medical records appear to have changed under CSR 64-12-7.2.f. Under the past rule there was no direction given to hospitals on the duration for the retention of medical records.

The new provision states, "[t]he hospital shall preserve medical records, including records of patients treated in the emergency room or outpatient departments, for a minimum of five (5) years in their original form or in a legally reproduced form."

Wednesday, July 05, 2006

West Virginia Law Firm Leaders

Bruce McEwen over at Adam Smith, Esq., a law blog focused on the economics of law firms, has an interesting post, "Are you making your times, or are they making you?" where he discussed two global law firm leader CEOs, Greg Jordan of Reed Smith and Ralph Baxter of Orrick. Both men are originally from West Virginia. Mr. Jordan grew up in Wheeling, West Virginia and attended my alma mater, Bethany College. Mr. Baxter, grew up in New Martinsville, West Virginia and his family is originally from the Proctor area, similar to my family who lived out Proctor on Coffield Ridge.

Reed Smith and Orrick have been two of the most successful global law firms of the last 10 years. Consistent with the theme of Mr. McEwen's post I'd agree that both Mr. Jordan and Mr. Baxter are people "who make the time" rather than being individuals created by the time. However, I also have to believe that the caring community oriented West Virginia environment that both grew up inlargely influenced their ability to be successful.

Additional information about Ralph Baxter's background and connection to West Virginia appeared in this 2001 Daily Mail article about Orrick's move to centralize its global operations center in Wheeling.

Thursday, June 29, 2006

Stolen VA Laptop Found, But . . . Two More Data Incidents Reported

Today the NY Times is reporting that the stolen laptop and hard drive containing data on an estimated 26.5 million veterans and military personnel has been recovered. According to the report the FBI's preliminary review found no evidence that anyone accessed the data.

For more information about the release of data and the class action filed as a result of the release check out my previous post on the topic. What impact will the recovery of the data, allegedly not accessed or used improperly by the parties who stole the data, have on the pending class action litigation?

But . . . at the same time the House of Representatives Veterans Affairs Committee has learned of a May 5 incident in which a data tape disappeared from a VA facility in Indianapolis, Indiana, and a 2005 incident in which a VA laptop was stored in the trunk of a car that was stolen in Minneapolis.

Tuesday, June 27, 2006

Huntington Herald Dispatch: Blogs and RSS

Today I noticed that the Huntington Herald Dispatch has added a number of blogs -- from the Thundering Herd to Marshall Movie News to Hot Topics to Twentysomethings in Huntington to Tech Gadgets and Gizmos, etc. I like the style and format for the blog which are based on a Blogger platform. Based on the archives it appears that these have been live since March 2006.

Also, it's great to see the Herald Dispatch taking the technology lead by adding headline RSS feeds and RSS feeds for all its blogs. As a strong supporter of RSS technology By adding the RSS feed feature the Herald Dispatch has become "The [Online] State Newspaper". I've added the feeds to my RSS reader.

Sunday, June 25, 2006

FS&B Sharks: 2006 Corporate Cup Champions

Congrats to the Flaherty, Sensabaugh & Bonasso, PLLC YMCA Corporate Cup Team for its impressive win in the 2006 Kanawha Valley YMCA Corporate Cup.

This makes 6 consective years that FS&B have taken the top spot in the competition. FS&B won 5 consecutive championships in Division I. Due to the growth of our firm, we were forced to move up to Division II and compete with companies that had up to 300 employees. The team took on the challenge and will now be looking toward a 7th win in 2007.

Today's Charleston Gazette Sports section reports the final standings:

1. Flaherty Sensabaugh & Bonasso 290;
2. Energy Corporation of America 268.5;
3. Jackson Kelly 215;
4. NGK 192;
5. Chesapeake Appalachia 181;
6. Spilman Thomas & Battle 178.5;
7. Aker Kvaerner 165;
8. Steptoe & Johnson 155;
9. FiberNet 142;
10. Bowles Rice McDavid Graff & Love 117;
11. Highland Hospital 56

Also, congrats go out to Arnett & Foster who took first place in Division I and the West Virginia Department of Environmental Protection for its first place win in Division III.

Friday, June 23, 2006

Father's Day Fishing

Since I'm on a FestiVALL catfish kick -- what's a few more fish tales from Father's Day. I grew up with the beautiful Ohio River in the backyard and we visited Papa's house this past weekend for Fathers Day. We went fishing in the backyard and came away with fun, fish and some good photos.

A shot of the fisherman watching his line at dusk on the great Ohio River.

First bass from the Ohio River.

Here's the fish that got away. This is the largest catfish that I've ever seen come from the river. The head was all that was left from this old fish washed up on the bank. I've heard stories of this size catfish living on the bottom near the Hannibal Dam -- but never proof. I suspect this one would have been at least 4 feet long. Yes, that's a dollar bill laying next to his mouth in the second photo -- his mouth was wider than the dollar bill.

Relaxing with Papa after a long Fathers Day reading Richard Scarry's What Do People Do All Day.

FestivALL: Catch the Catfish?

FestivALL has started in Charleston. Took a stroll late in the a.m. to get my haircut and saw the first signs of the Catfish being hung on Fife Street.

Just noticed via Oncee that Scott Michell at Entropy has the first photos of the Kanawha River catch. I'm sure that Rick Lee will get some great shots.

More Fish tales . . .

Courtesy of Dale Morton's Costume Blog, one more fish tale. Happy 4th of July!

Thursday, June 22, 2006

WV Announces $318M Common Sense Cost Savings Measure

Today's Charleston Daily Mail reported on the Performance Review Report issued by Public Works LLC, a consulting firm hired by the state to look at and identify specific areas of state government -- including health and human resources -- where cost savings could be generated.

Although I've not read a complete copy of the report, I was intrigued by the following excerpt from the Daily Mail article:

. . . One example of a cost-cutting solution involves revamping the West Virginia Medicaid Fraud Control Unit within the Department of Health and Human Resources. Public Works suggests adding staff to the unit, which has only six investigators. Through combating Medicaid fraud further, the state could save $20 million in its first year of increased efforts, according to the findings. West Virginia's annual Medicaid budget is $2.3 billion, the largest expenditure item in the state. . .

What this means for health care providers in West Virginia is that there will be an increase in investigations and enforcement activities by the West Virginia Medicaid Fraud Control Unit.

For more info on the report check out the Governor's Office press release (and audio), State Will Realize Savings of $318 Million By Implementing "Common Sense" Cost Saving Measures.

Texas Case Looks at HIPAA and State Public Information Laws

HIPAA privacy watchers will find the following Texas decision, Greg Abbott, Attorney General of the State of Texas v. Texas Department of Mental Health and Mental Retardation, of interest.
The opinion issued by Honorable Patrick Keel of theTexas Court of Appeals, Third District, upheld a 2004 opinion by Texas Attorney General Greg Abbott under Texas' public health reporting law.

The decision is summarized as follows:

A reporter made a public information request to the Texas Department of Mental Health and Mental Retardation (the "Department")asking for statistical information regarding allegations of abuse and subsequent investigations of abuse in state facilities and for the names of the facilities in which the alleged incidents occurred. The Department believed that the information could not be released because it was protected health information prohibited from disclosure by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and asked the Attorney General to provide an opinion as to whether the information could be released. See Pub. L. 104-191, 110 Stat. 1936 (HIPAA codified in various sections of 8, 22, 26, 29 and 42 U.S.C.A.). The Attorney General concluded that the information was subject to disclosure by the Public Information Act, which requires the disclosure of public information in response to public requests. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2005) (Public Information Act). The Department contested the Attorney General's opinion and filed suit in district court. The district court concluded the information was confidential and not subject to disclosure. The Attorney General appeals the decision of the district court. We will reverse the judgment of the district court.

Monday, June 12, 2006

Blonde Justice: Blawg Review #61

Don't miss this week's Blawg Review #61 over at Blonde Justice, in collaboration with Woman of the Law and Not Guilty.

West Virginia Medicaid: States' Changes Reshape Medicaid

West Virginia Department of Health & Human Services, Bureau of Medical Services (West Virginia Medicaid) gets a mention in today's Washington Post, "States' Changes Reshape Medicaid," for taking the lead on implementing steps to transform the traditional role ofMedicaid. West Virginia's efforts focus on making the Medicaid recipient more responsible for their care and treatment and creating incentives for becoming healthier, including having preventative screenings, adherence to health improvement programs, not missing appointments and taking prescribed medications. Failure to follow the redesigned guidelines will make the Medicaid recipient eligible for less benefits.

West Virginia Medicaid Redesign states the following as a guiding principal:

The State of West Virginia, like all the other states, has experienced unsustainable growth in Medicaid program cost. Costs continue to grow at a rate that exceeds state revenue growth. In order to lower out health care costs and improve the health of all our citizens, West Virginia is drafting a Comprehensive Medicaid Redesign Proposal with the goals of:

Streamlining Administration
Tailoring services to meet the needs of enrolled populations
Coordinating care, especially for those with chronic conditions; and
Providing members with the opportunity and incentives to maintain and improve their health

According to the article, many states are watching the West Virginia initiative starting July 1 to require Medicaid patients to sign a members agreement promising that they will keep appointments, take prescribed medications and focus more attention on preventative medicine for themselves and their family rather than overusing hospital emergency rooms.

For more information with details of the West Virginia Medicaid Redesign check out the following links on the West Virginia Medicaid website:

Tags: WV, West Virginia, Medicaid, Medicaid Redesign, health care, health, law, Washington Post

Wednesday, June 07, 2006

More Blawgs on a Roll: 1,200 - 643=557

Following up on my 643 Blawgs and counting post, another article on law bloggers crossed my screen thanks to Evan Schaeffer at Legal Underground. Tom Mighell of Inter Alia and Between Lawyers has written an article over at ABA Law Practice Management titled, "The Next Stage of Lawyer Blogging."

The article discusses the past, present and future of law blogs. By his calculation there have been over 1,500 law blogs created since 2002 and that 80% of these are still active. That would put the number at roughly 1,200 law blogs (1,200 - 643 = 557).

The article provides some practical advice for lawyers who might be just jumping into the blogoshere and allows those of us who have been blogging for a while to better understand why we do it and how we can improve what we are doing. I've been toying with the idea of a collaborative health care blog idea and was excited to see that Tom predicts collaborative blogs will be on the rise in the future.

WVHCA Issues Moratorium on Development of CT Services

On May 24, 2006, the West Virginia Health Care Authority issued an Order declaring a moratorium upon the development, acquisition or other establishment of Computed Tomography (CT) services. The replacement of existing CT equipment by existing CT providers is not affected
by this moratorium. This moratorium shall continue until the development of State Health Plan Standards for evaluating CT services, or one hundred eighty days from the declaration of this moratorium, whichever is less.

A short summary of the Order can be found in the May 26, 2006, edition of the WVHCA Newsletter. A complete copy of the Order can be obtained directly from the WVHCA.

Tuesday, June 06, 2006

WVHCA Issues Proposed Revisions to Hospice Service CON Standards

The West Virginia Health Care Authority has issued proposed revisions to the Hospice Service certificate of need standards. The current Hospice Service CON standards were approved by the Governor on June 21, 2001.

Written coments on the proposed certificate of need standards may be submitted to Dayle Stepp, Director of Certificate of Need no later than June 23, 2006.

643 Blawgs: Blawgs on a Roll

643 blawgs (or legal blogs) and counting.

"Blawgs on a Roll" by Dahlia Lithwick with The American Lawyer provides a good perspective on why niche law blogs are growing and filling a needed gap in legal education and providing the public with legal information. Who better to write about the law than lawyers who specialize in that particular area.

One area of my practice involves the regulatory world of health care certificate of need in West Virginia. I often notice that the media misses the mark when reporting on certificate of need issues. No disrespect to the legal reporters covering the CON Beat but as Ms. Lithwick points out its "difficult to write about the law in a way that is both technically accurate and also interesting and accessible to lay readers." Believe me, West Virginia certificate of need law can be downright boring at times -- but it impact on health care planning in West Virginia is important. This is especially true in a rural state like West Virginia where issues surrounding access and quality of health care are vitally important.

My fav quote from the article:

. . . And why are legal blogs already so much more nuanced, opinionated, and exciting than most other types of legal writing? I think it's because legal journalism has operated for so long along a fairly narrow bandwidth. Some legal writers have simply internalized the canonical rules of legal writing in general: Separate fact from opinion. Respect authority. Sedate is good, but boring is better.

Other journalists have the opposing tendency, which is to skip over the so-called boring bits and shorthand technical details. Justice Kennedy is correct in pointing out that while editorial writers are quick to express opinions about the case law, they don't always take the time to explain how or why the courts arrived at their decisions. A results-oriented analysis of a case too often suggests that the justices took a results-oriented route to get there. . .

To be sure, legal bloggers are still working through their growing pains. Debate rages among them about whether law review articles are relevant anymore, whether blogging counts as real scholarship, whether junior faculty should avoid blogging until they gain tenure, why women tend to eschew legal blogs, what counts as a legal blog, and so on.

Monday, June 05, 2006

Charleston FestivALL: Celebrating the Arts West Virginia Style

I'm looking forward to the second edition of Charleston FestivALL set for June 23-25 in Charleston, West Virginia. Seeing a post about the Catfish of Fife Street over at Dale Morton's Costume Blog prompted me to check out the 2006 FestiVALL schedule. (Dale, can't wait to see the final catch.) You ask "What is FestivALL?"

Be sure to check out the great line up featuring: The Neville Brothers; Blues Brews & BBQ; Wine & All That Jazz, featuring Chris Botti; Chris Botti; Moutain Stage, featuring: Bruce Hornsby, The Dirty Dozen Brass Band, Tommy Emmanuel and The Believers; FOOTMAD (Friends of Old Time Music and Dance); Robert Shafer; Bob Thompson Unit; Blues de Jour; The Carpenter Ants; The Soul Doctors; Robbie Mackey; WV Dance Company; and so much more!

If you didn't attend any of the events last year don't forget to attend this year. For those of you who haven't been to Charleston or West Virginia this is a great time to visit and appreciate what we have to offer.

For more info on FestivALL don't forget to check out the GAZZ FestiVALL Blog.

UPDATE: More fishy tales from today's Charleston Daily Mail about the clay and papier-mache catfish making an appearance at FestivALL courtesy of Dale Morton Studios.

Does HIPAA have teeth?

Washington Post article, "Medical Privacy Law Nets No Fines," discusses current HIPAA privacy enforcement statistics from DHHS Office ofCivil Rights. Some statistics from the article:

19,420 HIPAA privacy complaints filed
73 percent of cases closed by ruling there was no violation or allowing covered entity to implement voluntary compliance
309 cases referred to DOJ for possible criminal violations
No civil fines imposed
Two criminal cases