Singularity Health Law Blog

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.

 

SMILE: HOSPITAL PHOTO BANNED UPHELD BY NLRB

Given the ubiquity of cell phone cameras, it is not an infrequent experience for relatives visiting patients in hospitals to take pictures of the patients, nurses and others present in the facility.  Doctors and nurses have even been known to pose with patients for group photos.  In 2007, Flagstaff Medical Center in Flagstaff,  Arizona became concerned about the use of cameras in the hospital and banned the “use of cameras for recording videos of patients and/or hospital equipment, properties or facilities.

 

OBAMA BLUE BUTTON INITIATIVE PUSHES PHR DOWNLOAD PROGRAMS

 Recognizing the critical health care need for accurate historic  patient health records, the Obama administration has developed what it calls a “Blue Button” download initiative at the Department of Veteran Affairs, CMS and HHS. These are all programs that permit patients to go on-line and download their own medical records that they can share with their providers, caregivers and trusted others.  Some of these programs are now operational.  In the lead is the VA ( www.myhealth.va.gov ) where approximately 60,000 veterans have already accessed their records.  Medicare recipients can also access their records now at www.mymedicare.gov . Only about 5,600 have done so. There are about 47 million medicare recipients and 1 million veterans.

FLORIDA DOCS GRAPPLE OVER GUN GAG LAW.

Is there a sexual gratification component in gun ownership? Just a question.  It was only back in the 1960s when the United States Supreme Court held that a Connecticut statute banning any discussion of birth control was deemed unconstitutional. Last May the State of Florida passed a bill making it illegal for physicians to ask questions of patients about gun ownership, more particularly gun availability in the household. Pediatricians, long concerned about the availability of danger in homes, have taken to ask questions about gun access for children in the home along with other dangers such as “swimming pools” in the back yard.  The espoused intent is to suggest to parents that precautions be taken to limit child access to guns in the household, by having them properly stored.

 

SEX OFFENDERS IN NURSING HOMES.

There is a lot of news this week about sex offenders in nursing homes. In Boston, MA, the State Supreme Judicial Court determined that a Mass. law prohibiting registered sexual offenders from living in nursing homes was unconstitutional as applied to a certain “John Doe” because it did not permit him to demonstrate that he was not risk to safety of the other 11 residents.  Mr. Doe was a level three (most serious) offender convicted of abusing two young boys in 1992. He is 65 years old and suffers from Asperger’s disorder, glaucoma, heart attacks, seizure disorders, poor hygiene and “disorganized communication.” 

 

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.

EMR and Cloud’s Illusions

One of often voiced concerns about the storage of medical records on the internet or in “the cloud” as it were is the fear of marauding hackers stealing information in order to exploit patient data.  Michael Koploy, and ERP analyst at Software Advoice, recently wrote an interesting post entitled “HSS Data Tells the True Story of HIPAA violations in the cloud.” His article can be reached at http://www.softwareadvice.com/articles/medical/hipaa-violations-arent-in-the-cloud-1062011/ .  He starts with the so called “Wall of Shame” at the HSS website listing the details of 281HIPAA security violations through June 9, 2011. Only seven involved EMR violations and of those only one was accessed by hacker.  The most common violation was a lost or stolen computer hard drive, often taken from a car or van. Paper records were also frequently lost or stolen to negligent inattention or poor security.  Perhaps there will be a shift toward more cases involving cloud storage attacks in the future, but at present the security fears about cloud computing seem overblown. Perhaps it would be appropriate to borrow some lyrics from Joni Mitchell.

 

                    I’ve looked at clouds from both sides now

                    From up and down, and still somehow

                    It’s clouds illusions I recall

                    I really don’t know clouds at all.

 

 

ARMENIAN GANGSTERS RIP MEDICARE FOR $35 MILLION DOLLARS PLUS.

 

 

Is this a great country or what?  Newly arrived immigrant gangsters from Armenia have helped themselves to the largess of Medicare to the tune of $35 million dollars and more by creating a loose network of false health clinics, staffed by real physicians and patients whose identities had been stolen.  The gang operated 118 of the non-clinics in 25 states.  In matching the stolen identities of physicians with the stolen identities of patients the thieves were able to bilk the federal government of millions by submitting false claims that were paid without pre-verification, which is the way Medicare works.

 

HEALTH CARE DATA CHASE: THE ARRIVAL OF HEALTH CARE ALL CLAIMS DATA BASES.

    The Colorado legislature is about to address a proposal to develop a state health care all claims data base as part of Governor Rittter’s health care initiative package. The pending bill, HB 1330, provides for the structure and development of a claims data base in the state with the hope of joining a number of other states that have already or are in the process of developing their data bases.  

PERSONAL MEDICAL RECORDS (“PHR”): PROMISE AND PITFALL

 Hospitals, Physicians and other health care providers continue to struggle with the cost, interoperability, access and security issues related to adoption of Electronic Health Records (“EHR”). The Obama administration is very much behind the development of EHR for its anticipated quality improvement and cost reduction benefits. Healthcare providers are very touch about their medical records control and are somewhat wary of the easy portability of records in digital format.  There is a lot of inertia among patients who are reluctant to change physicians to new ones who are not aware of their history and do not have direct access to their charts.  Those charts have an economic value to the providers who own them.