Singularity Health Law Blog

HAZARDS OF “CLONED” MEDICAL RECORDS.

One of the “advantages“of computerized medical records is the easy ability in some programs to develop templates for the development of physician history and physicals and other documentation requirements for billing Medicare and other third party payors for services provided or in some cases not provided in order to increase payments. According to a recent article in the New York Times there has been a substantial increase in Medicare payments as the result of computer based upcoding of Medicare payment requests due to the cut and paste of various unrelated medical records to develop documentary support for higher levels of reimbursement.

 

UTAH PRESCRIBES NEW PRESCRIBER LIABILITY DUTY

The Utah Supreme Court last month held that a prescriber of drugs has a duty to third parties injured by the conduct of the patient following the consumption of the medication.  In the case of B.R., a Minor Child and C.R., a Minor Child, through their Conservator, William M. Jeffs v. Trina West, Hugo Rodier and John Does I-X, (Utah, 2012), the Court overturned a lower court dismissal of a case for lack of duty.  The Plaintiffs are the two surviving children of David Ragsdale, who killed their mother after taking the medication prescribed by Ms. West, a nurse practitioner.  The drugs prescribed were Concerta, Valium, Doxepin, Paxil, pregnenelone and testosterone.

HIPAA SECURITY BREACH SETTLEMENT

The Office of Civil Rights of the Department of Health and Human Services (“OCR”) announced a settlement with Blue Cross and Blue Shield of Tennessee  this month a compliant alleging a security leak, in violation of HIPAA. The case is interesting factually and resulted in the payment by Blue Cross of a $1,500,000.00 penalty and the imposition of a Corrective Action Plan.

 

DO ELECTRONIC MEDICAL RECORD INCREASE HEALTH COSTS?

It seems counterintuitive and contrary to the overwhelming majority of articles and studies, but the New York Times today reported on a study recently appearing in Health Affairs that suggested that the switch to electronic medical records resulted in a 40 percent increase in tests, most of the MRI and CAT scan variety. The study, based upon the analysis of a 2008 survey by the National Center for Health Statistics, performed for an entirely different purpose, and has questionable design.  The study followed 28,888 patient visits and 1100 physicians and claims to have a more National perspective. The authors of the study suggest that most earlier studies are based upon statistical models of expected savings like those undertaken by the RAND Corporation and the study of flagship integrated systems like Kaiser, rather than on national utilization data.

 

10 CRITICAL PRO IMMUNITY PEER REVIEW CASES: Number 8

 This is a series describing the ten important pro-immunity peer review cases where court have granted immunity to peer reviewers under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”).

No. 8:  Gabaldoni, M.D. v. Washington County Hospital Association et al., 250 F. 3d 255 (4th Cir., 2001)

Dr. Gabaldoni, was an obstetrician/gynecologist practicing in Virginia. and the holder of hospital privileges at Washington County Hospital Association (“WCHA”).  In 1995 he applied for a two year extension of his privileges. The WCHA Board of Trustees elected to deny his request for an extension of privileges and to terminate his existing privileges.The grounds given included his alteration of the chart of a patient who died while under his care; multiple grievances regarding clinical judgment and the number of malpractice complaints settled on his behalf.

 

DENTAL PATIENT SEEKS EXTRACTION FROM “SILENCER” CONTRACT.

There are a number of “silencer” contracts that have been marketed to dental and medical professionals as a means of keeping bad reviews from patients off of the internet.  Typically these agreements provide that in exchange for maintaining the confidentiality of the patient’s medical records the patient agrees not to make any critical reviews of the professional services received on the internet. These agreements also sometimes provide that the patient assigns his or her future intellectual property rights in reviews of the professional to the professional so that the professional can require web sites to “take down” adverse reviews.

 

CALIFORNIA STREAMING: TELEHEALTH ADVANCEMENT ACT

The often contentious California legislature passed the Telehealth Advancement Act of 2011 without opposition achieving broad advances in the expansion of medical services in rural areas of the state. It expands the Telehealth Development Act of 1996 to all licensed health care providers and proscribes insurance plan requirements for an in person relationship to obtain consent. Consent can be verbal and must be recorded. Failure to obtain consent is deemed "unprofessional conduct."

 

The new Act provides for advancing hospital credential approval of distant consultants and specifies that insurance companies may not place limits on settings where telehealth services may be provided. The Act does state that it is not to be used to mandate telehealth service in settings that insurance companies deem inappropriate.

 

The Legislature in enacting the law sought to dispel any doubt about the future of telemedicine in California.

 

It is the intent of the Legislature to recognize the practice of telehealth as a legitimate means by which an individual may receive health care services from a health care provider without in-person contact with the healthcare provider. 

 

INTEGRATED HEALTH SYSTEMS MODEL: BACK TO THE FUTURE.

In the not so distant past there was an health care industry trend toward the merger of the insurance and health care delivery systems which lowered costs at the expense of consumer choice.  Consumers ultimately balked at the choice limitation and the trend dissipated back toward the customary separation of insurance and delivery along the fee for service model. With the rise of Accountable Care Organizations under the Patient Protection and Accountable Care Act, the past is back as the future. Recently Steward Health Care System, LLC (successor to the six hospital system, Caritas Christi, in Massachusetts) announced that it will provide an new insurance plan built around the restriction that all consumer routine health care needs with be provided by Steward physicians. Cerebus Capital Management LP owns Steward.  

 

STANFORD HIPAA BLUES.

Are business associate contracts enough protection against a vendor’s negligence with respect to the public disclosure of patient medical information?  Stanford Hospital in Palo Alto is about to find out. One of its vendors, Multi Speciality Collection Services, LLC apparently posted the names and diagnosis codes of approximately 20,000 patients seen in the hospital’s emergency room in a six month period in 2009. One of the patient’s found his or her name on line in August of 2011.  It had been posted along with the others since September 9, 2010 on an on-line site called Student of Fortune.

Virginia Grand Jury Indicts Physician for HIPAA Violations.

It was bound to happen eventually.  A Virginia Grand Jury has indicted a physician for violation of HIPAA. The grand jury organized in the Eastern District of Virginia indicted Dr. Richard Alan Kaye, the former Medical Director of the Psychiatric Care Center at Sentara Obici Hospital in Suffolk, Virginia for making unauthorized disclosures of an patients medical records to an agent of the patient's employer. The three count indictment asserts that the disclosure was made under the false pretense that the patient was a "serious and imminent threat to the safety of the public."  The indictment asserts that Dr. Kaye knew at the time that the patient was not a serious and imminent threat to the safety of the public. The patient had been provided with in-patient mental health treatment at the hospital between August 20 and September 4, 2007.  The defendant stated in his discharge notes that the patient " is discharged this date in stable condition [and] . . .is not considered a danger to [patient] or others at the time of discharge. United States v. Richard Alan Kaye, criminal No. 2:11 cr 99 (June 21, 2011).  Somebody is taking the law seriously.