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Health Care Law Blog

Keeping an eye on health care law. Thoughts and comments on the health care industry, privacy, security, technology and other odds and ends.

Last Build Date: Sun, 26 Nov 2017 04:08:16 PST


WVHCA Issues Policy Statement for Public Witnesses

Sun, 29 Apr 2012 09:24:32 PDT

On April 11, 2012, the West Virginia Health Care Authority announced a new policy regarding the testimony for witnesses from the public before the Authority at certificate of need and rate hearings. The policy statement issued by James L. Pitrolo, Jr. Chairman, is effective from April 11, 2012 and states as follows:
To establish procedures and guidelines governing the testimony for witnesses
from the public.

This policy cancels and supersedes all prior memoranda regarding testimony for
witnesses from the public.

In order to ensure an orderly public hearing, all witnesses from the public
shall register in person during the first day of the hearing. If a witness fails to
register during the first day of the hearing, the witness will not be allowed to
testify during the hearing. If multiple witnesses are present on behalf of one
party, the group can elect up to three representatives. The representative's
comments will be limited to five minutes each up to a maximum of 15 minutes.
Individual comments will be limited to five minutes each. Further, a witness in the
hearing that has provided testimony shall not testify as a witness from the public
in the same hearing.

MSBCBS of TN Settles HIPAA/HITECH Violation for $1.5M

Wed, 14 Mar 2012 10:13:39 PDT

The HHS Office for Civil Rights (OCR) announced a settlement of $1.5M with Blue Cross Blue Shield of Tennessee (BCBST) relating to potential violations under the HIPAA Privacy and Security Rules. According to the OCR press release, the enforcement action by OCR is the first reported as resulting from a breach report required under the new Breach Notification Rule implemented as a result of the HITECH provisions of HIPAA.

The breach involved 57 unencrypted computer hard drives that were stolen from a facility leased by BCBST in Tennessee. The hard drives contained protected health information of approximately 1 million individuals. The breach was reported by BCBST to OCR under the HITECH provisions and regulations that require reporting of potential breaches. The press release indicates that OCR’s investigation found that BCBST failed to implement appropriate administrative safeguards to adequately protect information remaining at the leased facility by not performing the required security evaluation in response to operational changes. In addition, the investigation showed a failure to implement appropriate physical safeguards by not having adequate facility access controls; both of these safeguards are required by the HIPAA Security Rule.

For more information check out the HHS press release "HHS settles HIPAA case with BCBST for $1.5 million" which includes a link to the HHS Resolution Agreement entered into between OCR and BCBST.


Media Files:

OHFLAC Announces New Independent Informal Dispute Resolution Procedure for West Virginia Nursing Homes

Sat, 10 Mar 2012 12:57:17 PST

The latest West Virginia Health Care Association e-News Update announced that the Office of Health Facility Licensure and Certification (OHFLAC) has put into place a new Independent Informal Dispute Resolution (IIDR) review of disputed deficiencies for all nursing homes in West Virginia. The new IIDR procedure goes into effect immediately and three out of state vendors experienced in IDRs were selected to be the third party reviewers. The current Informal Dispute Resolution (IDR) will remain as an alternative option.According to the e-News Update, the new procedure will be detailed in a letter to providers when OHFLAC returns the Statement of Deficiencies to the provider after a survey. The letter will contain instructions on how to request an IIDR. OHFLAC is proposing to use the following language in the letters:INFORMAL DISPUTE RESOLUTION:In accordance with 42 CFR 488.331, you have an opportunity to question cited deficiencies through an informal dispute resolution process. To request an informal dispute resolution, please submit in writing the specific deficiencies being disputed and an explanation of why you are disputing those deficiencies to:                                    Informal Dispute Resolution Review Committee                                    Office of Health Facility Licensure and Certification                                    408 Leon Sullivan Way                                    Charleston, WV 25301-1713 You may also send your request via email to  This request must be sent during the same ten (10) calendar days you have for submitting a Plan of Correction (POC) for the cited deficiencies and must be contained on a document separate from the CMS-2567L, which contains the POC.  You may choose between an informal dispute resolution (IDR) and an independent informal dispute resolution (IIDR).  You must clearly indicate your choice in the attention line of your request and the subject line of your email. An IDR will be completed by OHFLAC staff not associated with the referenced survey event.Per West Virginia State Code §16-5C-12a, an IIDR will be completed by an independent review organization.  If an independent informal dispute resolution process is selected, the matter will be assigned to one of three independent review organizations accredited by the Utilization Review Accreditation Commission.  The facility may be subject to certain costs such as:•     The cost of a face-to-face conference if one is requested; and•     The cost charged by the independent review organization, should the facility not be successful in its dispute. Please call us at 304-346-4575 if you have any questions.The new IIDR procedure will allow nursing homes an alternative option to the standard IDR process when questions arise during the survey process and related POC requirement. The new procedure will allow a nursing home provider to challenge the particular survey finding through an alternative/independent process. Whether this new alternative procedure will be valuable to nursing home providers is yet to be seen. [...]

West Virginia Health Care Association Launches WV Senior Care Website

Sun, 26 Feb 2012 12:15:06 PST

This past week health care colleague and CEO of the West Virginia Health Care Association, Patrick D. Kelly, advised me that the association has launched a new website to provide a resource for families and seniors who are researching residential and health care options in West Virginia. The website is called West Virginia Senior Care: Helping Seniors Make Informed Decisions About Senior Care and can be found at:

The website is designed to help all of us find information and make better decisions regarding care for our parents and the elderly. The website includes everything from in home care services, such as home health, hospice, and other in home services, to care offered in assisted living facilities, residential care, nursing homes, hospitals, etc. The press release issued by the West Virginia Health Care Association provides additional details.

After looking around the website it looks like a great resource of health care information for West Virginia seniors.


CMS Issues proposed rule for Stage 2 Meaningful Use EHR Incentive Programs under HITECH

Fri, 24 Feb 2012 06:30:03 PST

Yesterday the Centers for Medicare & Medicaid Services (CMS) announced the proposed rule for Stage 2 Meaningful Use under the the Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs which is a part of the Health Information Technology for Economic and Clinical Health Act (HITECH).

The incentive program is part of the national health information technology reform effort under the American Recovery and Reinvestment Act of 2009 which provides incentive payments to eligible health care professionals, eligible hospitals and Critical Access Hospitals who adopt certified EHR technology and use it to demonstrate “meaningful use” of that technology to CMS.

The proposed rule also revised certain Stage 1 criteria, as well as criteria that apply regardless of the Stage, as finalized in the final rule titled Medicare and Medicaid Programs; Electronic Health Record Incentive Program published on July 28, 2010 in the Federal Register. The provisions included in the Medicaid section of the proposed rule (which relate to calculation of patient volume and hospital eligibility) would take effect shortly after finalization of this rule, not subject to the proposed 1 year delay for Stage 2 of meaningful use of certified EHR technology. Changes to Stage 1 of meaningful use would take effect for 2013, but most would be optional until 2014.

CMS provides the following Fact Sheet summary of the Stage 2 requirements. The complete proposed rule can be found here and should be published in the Federal Register in the next week. If you are interested in submitting comments to the proposed rule the deadline for submission will be 60 days from the date of publication of the proposed rule in the Federal Register.(image)

SCOTUS Overturns Supreme Court of Appeals of West Virginia Decision on Nursing Home Arbitration Agreements

Fri, 24 Feb 2012 06:10:45 PST

On February 21, 2012, the U.S. Supreme Court vacated a ruling by the Supreme Court of Appeals of West Virginia in the matter of Marmet Health Care Center, Inc. v. Brown et al., 565 U.S.(2012). The Supreme Court of Appeals of West Virginia previously held that all pre-dispute arbitration agreements that applied to personal injury and wrongful death claims against nursing homes were unenforceable. In a strongly worded opinion, the U.S. Supreme Court held that the West Virginia court misread and disregarded national precedent and controlling federal law regarding the Federal Arbitration Act.The litigation involved three negligence suits against nursing homes in West Virginia for the care they provided to three separate residents: Clayton Brown, Jeffrey Taylor, and Sharon Marchio. In each of the cases, a family member entered into a binding arbitration agreement on behalf of the resident with the respective nursing home. In all three cases, after the resident died, lawsuits were filed in state circuit courts alleging personal injury and wrongful death against the nursing homes. The Brown and Taylor cases were dismissed by the circuit courts based on the arbitration agreements. The Marchio case was consolidated with the other two cases when it was brought before the West Virginia Supreme Court on a certified question.In a decision concerning all three cases, the West Virginia Supreme Court held that "as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence." Brown v. Genesis Healthcare Corp., No. 35494 (W.Va., June 29, 2011). The West Virginia Supreme Court found unpersuasive the U.S. Supreme Court's prior interpretation of the Federal Arbitration Act, calling it "tendentious" and "created from whole cloth." Brown v. Genesis Healthcare Corp., No. 35494 (W.Va., June 29, 2011).In vacating the West Virginia court's ruling, the U.S. Supreme Court held that the West Virginia court's interpretation of the Federal Arbitration Act was incorrect and inconsistent with its clear instruction and prior precedents. On remand, the West Virginia court was instructed to consider whether, absent the general public policy issue, the arbitration clauses in the Brown and Taylor cases are unenforceable under state common law principles that are not specific to arbitration and preempted by the Federal Arbitration Act. This leaves the possibility that certain arbitration clauses may be invalidated on such general contract grounds, such as fraud, duress, and lack of capacity, to name a few. For additional information you can review the documents filed in the matter the U.S. Supreme Court docket for the Marchio portion of the case. Also, the briefs filed in the Brown, Taylor, and Marchio matters filed before the Supreme Court of Appeals of West Virginia can be found here.   Thanks to Ryan A. Brown, a member of the Flaherty Sensabaugh Bonasso PLLC Health Care Practice Group who represents the defendant nursing home, Clarksburg Nursing & Rehabilitation Center, Inc., in the Marchio matter for the above summary of the decision. Also involved in the case was my partner, Mark Robinson.  [...]

Media Files:

HIPAA Privacy Action Filed Against University Health Associates

Mon, 23 Jan 2012 11:40:21 PST

The West Virginia Record reports the filing of a medical record breach action against West Virginia University Medical Corporation dba University Health Associates (UHA) under the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The action filed in Monongalia Circuit Court was filed by Jennifer M. McGinley on behalf of Randy Friend (11-C-774).

The complaint asserts that Mr. Friend received a letter from UHA indicating that an employee had accessed his medical record without authorization. Mr. Friend claims that his medical record was accessed multiple times by a former UHA employee and that this former employee related the medical information to several other people living in Mr. Friend's community causing him emotional distress and embarrassment.

Also, Jeff Drummond at the HIPAA Blog reports on an interesting lawsuit filed by the Minnesota AG against Accretive Health in Minnesota. The action involves Fairview Health and North Memorial who hired Accretive Health as its debt collection company. Accretive Health lost an unencrypted laptop with medical and other personal information. As Jeff indicates this has some interesting aspects including the question of direct liability of a business associate under the HITECH amendments to HIPAA and also whether the covered entities only disclosed the "minimum necessary" information to its debt collection company. Interesting case to watch develop.

UPDATE: The complaint filed in the United States District Court District of Minnesota, State of Minnesota, by its Attorney General Lori Swanson v.Accretive Health, Inc.(image)

WVHCA: 2012 CON Capital Expenditure Minimum

Tue, 03 Jan 2012 07:31:25 PST

The West Virginia Health Care Authority has announced the 2012 certificate of need capital expenditure minimum threshold of $2,916,104. The new threshold is effective beginning January 1, 2012. The threshold is used as a part of the analysis by health care providers who must determine whether or not a certificate of need is required for a proposed project or health care acquisition. 

Pursuant to W.Va. Code 16-2D-2(h) and (s), the Authority is required to adjust the expenditure minimum annually and publish an update of the amount on or before December 31 of each year. The expenditure minimum adjustment isbased on the DRI inflation index published in the Global Insight DRI/WEFA Health Care Cost Review. The DRI inflation index as of December 31, 2011 is 2.9%.(image)

Health Care Law Blog: Have a Wonderful Holiday Season!

Fri, 23 Dec 2011 05:40:28 PST

Happy Holidays to my clients, health care and lawyer colleagues, and other readers of the 
Health Care Law Blog
 I appreciate your continued support and hope that 2012 
will be as exciting and wonderful as this past year.
See you in 2012! 

In years past I have sent out our standard Flaherty Sensabaugh Bonasso PLLC holiday card to thank my clients for trusting our firm with their business and my colleagues for all they do for me throughout the year. Instead, this year I decided to go GREEN and red by sending out an e-greeting and
do a holiday blog post with our firm's holiday greeting card.
We all play an important role in maintaining the environment.Thanks!

Thanksgiving 2011: Occupy The Dinner Table and Engage With Grace

Thu, 24 Nov 2011 06:41:05 PST

The Engage with Grace Project is an effort to raise awareness of the importance of end of life care planning and discussing your wishes with your family and friends.Dr. Bryan Vartabedian captures the simplicity of the project in his post, "It began with a simple idea: Create a tool to get people talking. Their tool is a slide with five questions designed to initiate dialog about our end-of-life preferences."  Take time during the Thanksgiving weekend to "occupy the dinner table" with your family and friends. Discuss the 5 questions below and share your thoughts and feelings.  This is my 4th year participating in the Engage With Grace Project. What prompted me to start participating? It was having the opportunity to watch Alexander Drane tell Za's story at the 2008 Health 2.0 Conference. Her story personally connected as I shared in my 2008 blog post.West Virginia is often negatively portrayed nationally at the bottom or top in national health rankings. However, it is great to see West Virginia leading the way on end of life care planning. 49% of West Virginians have filled out at least one advance directive -- the highest among all states reporting these statistics. However, this statistic shows how few of us actually take the time and effort to document our wishes. More than 1/2 of the population have left these difficult decisions to be made by their family and health care providers. This statistic shows the importance of the Engage With Grace message.For West Virginia readers who want to learn more about end of life care check out the resources provided by the West Virginia Center for End of Life Care. There is valuable information for health care professionals to "Why and how to have end-of-life discussions with your patients", "Accessing Decision Making Capacity", and POST (Physicians Order for Scope of Treatment) Forms.  The website also provides FAQs, educational videos, and forms, including the standard West Virginia Advanced Directive Forms. West Virginia is also creating the e-Directive Registry in conjunction with the West Virginia Health Information Network (WVHIN), West Virginia's health information exchange (HIE). The e-registry will store advance directive forms, Physicians Orders for Scope of Treatment forms, and do not resuscitate cards. The registry will allow treating health care providers to access the stored information 24/7 from around the state through the WVHIN. Most importantly, the registry will be accessible by you and I as health care consumers to verify the accuracy of our wishes.  Following is the 2011 blog post by the Engage With Grace Team -- Occupy With Grace. Help spread the word this Thanksgiving weekend by telling your end of life care story and posting the message below. You can get the HTML to post here.  Occupy With Grace  Once again, this Thanksgiving we are grateful to all the people who keep this mission alive day after day: to ensure that each and every one of us understands, communicates, and has honored their end of life wishes.Seems almost more fitting than usual this year, the year of making change happen. 2011 gave us the Arab Spring, people on the ground using social media to organize a real political revolution. And now, love it or hate it - it's the Occupy Wall Street movement that's got people talking.Smart people (like our good friend Susannah Fox) have made the point that unlike those political and economic movements, our mission isn't an issue we need to raise our fists about - it's an issue we have the luxury of being able to hold hands about. It's a mission that's driven by all the personal stories we've heard of people who've seen their loved ones suffer unnecessarily at the end of their lives.It's driven by that ripping-off-the-band-aid feeling of relief you get when you've finally broached[...]

Media Files:

HIPAA/HITECH Audits: OCR Program to Audit 150 Covered Entities

Wed, 09 Nov 2011 03:39:01 PST

Today the Office for Civil Right (OCR) announced details of a pilot program to perform up to 150 audits of covered entities to assess privacy and security compliance under HIPAA. OCR will be conducting the audits between November 2011 and December 2012.The days of waiting for HIPAA privacy and security enforcement activities are over. The announcement of these planned audits will get the attention of health care providers who have failed to focus on HIPAA privacy and security compliance efforts. The announcement will remind all health care providers to maintain an active, current HIPAA privacy and security compliance program.OCR provides more detail on the audit program on the OCR HIPAA Audit Program page, including this description of the program objectives:The audit program serves as a new part of OCR’s health information privacy and security compliance program. OCR will use the audit program to assess HIPAA compliance efforts by a range of covered entities, Audits present a new opportunity to examine mechanisms for compliance, identify best practices and discover risks and vulnerabilities that may not have come to light through OCR’s ongoing complaint investigations and compliance reviews. OCR will broadly share best practices gleaned through the audit process and guidance targeted to observed compliance challenges via this web site and other outreach portals.The OCR HIPAA Audit Program page also provides detail on when the audits will begin, who will be audited, how the audit process will work, and what will happen after the audit. The information indicates that they will select a broad range of covered entities for the first round of audits and that business associates will be included in future audits.OCR provides the graphic below to help describe how the audits will be performed. Covered entities will be selected, notified, and asked to provide documentation of privacy and security compliance efforts within 10 business days. An onsite visit will occur and interviews will be performed. A draft report will be provided to the covered entity and there will be a procedure for the covered entity to discuss the areas of concern raised in the audit and describe any corrective action they may implement. The HIPAA audits are a requirement under the American Recovery and Reinvestment Act of 2009 (Section 13411). HHS awarded to KPMG a $9 million dollar contract earlier this year to assist OCR with the audits. [...]

University of California Settles Potential HIPAA Privacy and Security Violations with OCR for $865,500

Fri, 08 Jul 2011 12:08:58 PDT

The U.S. Department of Health and Human Services, Office for Civil Rights (OCR) announced that the University of California at Los Angeles Health System which includes UCLA Ronald Reagan Medical Center, UCLA Santa Monica Medical Center, and Orthopedic Hospital, Resnick Neuropsychiatric Hospital, and the Faculty Practice Group of UCLA (UCLAHS) has agreed to settle potential violations under the HIPAA Privacy and Security Rules for $865,500. Read the OCR press release.The settlement highlights that hospitals, physicians, and other covered entities must understand the importance of monitoring the level of access workforce members have to medical and health information. Covered entities must have policies and procedures in place and educate workforce members about only accessing records for necessary and permissible purposes. This settlement resulted from an investigation by OCR after certain celebrity/VIP patients at the UCLA facilities complained that hospital staff, including unauthorized physicians, had inappropriately accessed their health and medical information.UCLAHS agreed to a Corrective Action Plan for a period of three years under the terms of the Resolution Agreement. The Corrective Action Plan requires UCLAHS to review/update its current HIPAA policies and procedures, conduct follow up workforce training, monitor compliance and submit a monitoring plan, and submit an implementation report and annual reports to OCR. of can be found attached to the Resolution Agreement.The Resolution Agreement described the events that occurred that lead to the settlement as follows:On June 5, 2009 and June 30, 2009, HHS began investigations of two separate complaints alleging that the Covered Entity was in violation of the Privacy and/or Security Rules. The investigations indicated that the following conduct occurred (“Covered Conduct”):(i) During the period from August 31, 2005 to November 16, 2005, numerous Covered Entity workforce members repeatedly and without a permissible reason examined the electronic protected health information of Covered Entity patients, and during the period from January 31, 2008 to February 2, 2008, numerous Covered Entity workforce members repeatedly and without a permissible reason examined the electronic protected health information of a Covered Entity patient.(ii) During the period 2005-2008, a workforce member of Covered Entity employed in the office of the Director of Nursing repeatedly and without a permissible reason examined the electronic protected health information of many patients.(iii) During the period 2005-2008, Covered Entity did not provide and/or did not document the provision of necessary and appropriate Privacy and/or Security Rule training for all members of its workforce to carry out their function within the Covered Entity.(iv) During the period 2005-2008, Covered Entity failed to apply appropriate sanctions and/or document sanctions on workforce members who impermissibly examined electronic protected health information.(v) During the period from 2005-2009, Covered Entity failed to implement security measures sufficient to reduce the risks of impermissible access to electronic protected health information by unauthorized users to a reasonable and appropriate level. More information and background can be found in the iHealthBeat article, UCLA Health System Agrees to Pay $865K over Privacy Breaches, including a link to a statement on the settlement issued by UCLH Health System. [...]

Media Files:

4th Circuit Affirms Withholding of WV Medicaid Funds

Wed, 06 Jul 2011 16:49:33 PDT

Today the United States Court of Appeals for the 4th Circuit affirmed a ruling by the district court in West Virginia which sustained a disallowance of federal funding by the Centers for Medicare & Medicaid Services (CMS) against the West Virginia Medicaid Program.

The 4th Circuit Decision in West Virginia Department of Health and Human Resources, Bureau for Medical Services vs. Kathleen Sebelius, et al. ruled that CMS acted within its authority when it withheld from the West Virginia Department of Health and Human Resources, Bureau of Medical Services, West Virginia'a Medicaid Program (DHHR) approximately $634,000 (which was reduced to approximately $446,000)in Medicaid funding, which represented it share of overpayment made to providers as a result of Dey, Inc., a pharmaceutical company, alleged fraud. CMS notified DHHR of the disallowance after Dey entered into an $850,000 settlement of claims brought by the West Virginia Attorney General on behalf of West Virginia under West Virginia's Consumer Credit and Protection Act.

The disallowance by CMS was calculated by multiplying the state's estimated damages allocable to Medicaid, approximately 67% by the settlement amount adn then multiplied this figure by West Virginia's FMAP rate of 78.14% to arrive at the $446,000 amount. The HHS Department of Appeals Board concluded that this allocation methodology was reasonable.

I have only done an initial review of the decision and won't go into the merits of the arguments at this time. Read the full decision for a more complete understanding of the decision and check out today's article in the Charleston Daily Mail.(image)

Media Files:

2011 AHLA Annual Meeting: How to Use Social Media with @BobCoffield

Tue, 28 Jun 2011 14:45:00 PDT

Welcome How to Use Social Media session students and others.I hope you enjoyed my presentation during the afternoon health care social media sessions at the 2011 American Health Lawyers Association Annual Meeting in Boston. The health care social media sessions this afternoon were a great introduction to a variety of practical and legal issues surrounding the world of social media and its impact on the health care industry.Now it is time for you to do your "out of the classroom" social media assignment using the SOCIAL MEDIA bucket list. Click on the linked Google Doc and get started. Good luck! Below is a copy of the written materials from today's session which were posted here using Scribd. If you want to review my Prezi slides from my presentation watch it below and then go explore Prezi.  If you have any questions send me a Tweet at @BobCoffield. Follow along with the tweets from the AHLA Annual Meeting at #AHLABoston. David Harlow (@HealthBlawg) also set up a Cover It Live Twitter feed for the Annual Meeting tweets. Thanks for attending the session..prezi-player { width: 550px; } .prezi-player-links { text-align: center; } How to Use Social by @BobCoffield (AHLA Annual Mtg 2011) on PreziHow to Use Social Media (AHLA Annual Mtg - Coffield) class="scribd_iframe_embed" data-aspect-ratio="0.772727272727273" data-auto-height="true" frameborder="0" height="600" id="doc_83973" scrolling="no" src="" width="100%"> [...]

Media Files:

AHLA Boston "TWEETup"

Tue, 21 Jun 2011 10:26:19 PDT

Plans are set for a "TWEETup" during the American Health Lawyers Association 2011 Annual Meeting next week in Boston. All registered health lawyers are welcome along with other Boston area Twitter friends, Boston's Health 2.0 community, health care social media aficionados, and anyone else interested in the intersection of social media and the law.Come join us at the #AHLABoston TWEETup on Tuesday, June 28 starting around 5:30pm at the BrasserieJO bar located across from the Prudential Center at The Colonnade Hotel, 120 Huntington Avenue. The BrasserieJO is located down Huntington Avenue near the Boston Marriott Copley Place, the location of the annual meeting.Check out the TwtVite set up by David Harlow at HealthBlawg and RSVP that you will be attending. Help us spread the word.The TWEETup follows an afternoon of health care social media and the law sessions held as a part of the AHLA Annual Meeting. For full details of the sessions and registration information check out the AHLA Annual Meeting schedule here (PDF version).The sessions run from 2pm - 5:30pm and will include:A Legal Ethics Safety Line for Health Lawyers Online: How to Practice Safe Social NetworkingAlan S. Goldberg (@GoldbergLawyer), Annie Hsu E-Discovery LitigationGary L. Kaplan (@Gary_L_Kaplan), Joshua P. Kubicki (@JKubicki)Cutting the PowerPoint Clutter: Using Zen-Like Visuals for more Compelling and Memorable Presentations Susan PetersonShould Health Lawyers Use Social Media?David Harlow (@HealthBlawg) HIPAA Privacy Issues in Social Media Jodi Goldstein Daniel (@JodiDaniel), Daniel S. Goldman (@danielg280)How to Use Social MediaRobert L. Coffield (@BobCoffield), David Harlow (@HealthBlawg), Gary L. Kaplan (@Gary_L_Kaplan)Triaging Social Media in the Healthcare Workplace: Assessment, Analysis and ActionMark W. PetersA special thanks to @HealthBlawg for helping find the location for the TWEETup. Thanks to all the AHLA health lawyer and others spreading the word about the tweetup. Be sure to follow @HealthLawyers and use the AHLA Annual Meeting hashtag: #AHLABoston. [...]

Media Files:

WVHCA: Notice of Public Comment Period on Proposed Amendments to CON Standards for Megavoltage Radiation Therapy Services/Units

Mon, 20 Jun 2011 08:45:54 PDT

The West Virginia Health Care Authority has issued a Notice of Public Comment Period to obtain comments on proposed amendments to Certificate of Need Standards for Megavoltage Radiation Therapy Services/Units.

Here are the "proposed amendments" to the Megavoltage Radiation Therapy Services/Units. Here is a link to the current CON Standards for Megavoltage Radiation Therapy Services/Unit (Approved by Governor on October 9, 2002).

Written comments must be submitted to Tim Adkins, Director of Certificate of Need, at the West Virginia Health Care Authority, 100 Dee Drive, Charleston, West Virginia 25311, no later than July 15, 2011.(image)

The Twitter Trap: Are we outsourcing our brains to the cloud?

Fri, 17 Jun 2011 07:05:50 PDT

The Twitter Trap by Bill Keller (@NYTKeller), Executive Editor of The New York Times captures many of the thoughts I have been having lately about the impact social media and technology is having on our society. Where does it end? What will be the future? How will it change us as humans? As a society? Like Mr. Keller, I have had similar feelings as I watch the impact on my 7 and 10 year old children.Recently I have been preparing a presentation for the AHLA Annual Meeting at the end of June on the practical ways health lawyers can and should use social media. As a result I have tried to step back from the social media explosion to examine some of these issues, including the parallels between Mark Zuckerberg and Johannes Gutenberg referenced in Mr. Keller's piece.I love this quote from Mr. Keller's article that helps visualize the innovation/disruption/impact cycle:"My father, who was trained in engineering at M.I.T. in the slide-rule era, often lamented the way the pocket calculator, for all its convenience, diminished my generation’s math skills. Many of us have discovered that navigating by G.P.S. has undermined our mastery of city streets and perhaps even impaired our innate sense of direction. Typing pretty much killed penmanship. Twitter and YouTube are nibbling away at our attention spans. And what little memory we had not already surrendered to Gutenberg we have relinquished to Google. Why remember what you can look up in seconds?"I also like his explanation of Twitter as a tool, "So let me be clear that Twitter is a brilliant device — a megaphone for promotion, a seine for information, a helpful organizing tool for everything from dog-lover meet-ups to revolutions."His question around whether these new social media instruments are genuinely social is a good one. It is hard to see the answer to this when you are sitting in the midst of the social media cloud. One question that he doesn't address is how the collection of all this "collective social media data" about you and me will be used in the future. Is Facebook just one big social experiment. It now knows more about my family and friends than I can probably remember. Take time away from your Twitter and Facebook posts, go read the article, and then sit back and take some quiet time to reflect on his message. I will leave you with this quote from Mr. Keller's article:"The things we may be unlearning, tweet by tweet — complexity, acuity, patience, wisdom, intimacy — are things that matter."Thanks to Jason Keeling (@JasonKeeling) for pointing out this insightful piece that was published back in print on May 22, 2011. [...]

JP Morgan Healthcare Conference HIT Panel Discussion with Schmidt, Chopra, and Park

Sun, 12 Jun 2011 12:01:24 PDT

If you follow health information technology and are interested in the future of health care take time and listen to this panel discussion on Innovation Opportunities for the Health Information Technology Market with Eric Schmidt, Chairman of Google, Aneesh Chopra, Federal CTO for the United States, Todd Park, CTO of HHS, and moderated by John Doerr, venture capitalist at Kleiner Perkins.

The panel discussion was part of the Annual J.P. Morgan Healthcare Conference held in January 2011.

To start off moderator, John Doerr has the audience rattle off a bunch of great questions for the panel to address. Just listening to the questions will make you want to listen to the panel discussion.

Thanks to Susannah Fox and Claudia Williams for tweeting the link. Thanks to Brian Ahier (@Ahier) for posting the Vimeo link to the panel discussion.(image)

OIG HEAT Provider Compliance Training Webcast

Wed, 08 Jun 2011 11:58:57 PDT

The Office of Inspector General (OIG) has made available the Health Care Fraud Prevention and Enforcement Team (HEAT) Provider Compliance Training webcast. OIG is making the training information available to help highlight and educate providers on the the federal government's effort to fight health care fraud and abuse.

More information about  HEAT Task Force and its mission and efforts can be found on the StopMedicareFraud website. The training information includes 16 modules:

Welcome Remarks 4:37
Overview of OIG 9:56
Navigating the Fraud and Abuse Laws 26:26
Compliance Program Basics 17:01
Operating an Effective Compliance Program 15:59
Understanding Program Exclusions 10:26
Navigating the Government 5:10
Overview of Centers for Medicare and Medicaid Services 34:24
Importance of Documentation 17:06
OIG Subpoenas Audits Surveys and Self Disclosure Protocol 17:42
Health Care Fraud Enforcement Panel 6:08
Health Care Fraud Enforcement Panel with CMS Deputy Admin 13:43
Health Care Fraud Enforcement Panel with Special Agent 15:10
Health Care Fraud Enforcement Panel with Asst. US Attorney 17:08
Health Care Fraud Enforcement Panel - Fraud Control Unit 11:15
Adjournment 0:59(image)

HIPAA Privacy Rule Accounting of Disclosures under HITECH

Tue, 31 May 2011 08:57:44 PDT

Today's Federal Register includes the Office of Civil Rights (OCR) Notice of Proposed Rulemaking (NPRM) modifying the HIPAA Privacy Rule's Accounting of Disclosure requirements for protected health information. OCR was required to make these modifications to the HIPAA Privacy Rule to implement the requirements under the Health Information Technology for Economic and Clinical Health Act (HITECH) section of the ARRA. HIPAA Privacy Rule Accounting of Disclosures Under the Health Information Technology for Economic and Clinical Health Act, Office for Civil Rights, Notice of Proposed Rulemaking (76 FR 31426, May 31, 2011)The regulations greatly expand the responsibility for health care covered entities and business associates to document and track the use and disclosure of health information held in an electronic health record (EHR). Health care providers and business associates should plan to thoroughly review these new regulations to understand the impact on their existing policies and procedures.The regulations outline new procedures for accounting of disclosures of health information held in an electronic health record and disclosed for treatment, payment, and health care operations (as defined under HIPAA). The accounting period under the proposed regulations is three years. The proposed regulations focus on two rights for individuals -- a right to an accounting of disclosure and a "new" right to an access report. The new access report does not distinguish between a use (think internal use by a health care provider) and disclosure (providing the information to a third party). Instead the new right to an access report focuses on whether someone "accessed" the information in the EHR.Previously under HIPAA, uses and disclosures for treatment, payment, and health care operations (commonly referred to as "TPO") were exempt from the accounting of disclosures requirements. The requirement for accounting for some limited uses and disclosures has always been a part of the HIPAA Privacy Rule.The rule proposes separate compliance dates for the changes to the accounting of disclosures requirements (180 days after the effective date of the final rule - 240 days after publication of the final rule) and for the right to receive an access report (beginning January 1, 2013, for any EHR system acquired after January 1, 2009 and January 1, 2014, for any EHR system acquired on or before January 1, 2009).My initial comments above are based upon a quick review of the proposed regulations. Official comments on the NPRM must be submitted on or before August 1, 2011. [...]

Media Files:

Practical Guidance on Medicare Physician Signature Requirements

Tue, 24 May 2011 06:40:59 PDT

I was recently researching the physician signature requirements under the Medicare program and found this resource outlining some of key questions and answers around the requirements.

The Centers for Medicare & Medicaid Services Medicare Learning Network has issued a fact sheet on Comprehensive Error Rate Testing (CERT) Signature Requirements with the Q and A. Also mentioned in the guidance as a resourceis the Medicare Learning Network's MLN Matters Article MM6698, "Signature Guidelines for Medical Review Purposes."(image)

FSB Welcomes Tom Clark

Sun, 22 May 2011 10:53:03 PDT

A warm welcome to J. Thomas "Tom" Clark who recently joined Flaherty Sensabaugh Bonasso PLLC as Senior Counsel. Tom is a welcomed addition to our corporate practice group and will help to expand the level of representation that we provide our health care, oil and gas, coal and banking industry clients.

Tom comes to FSB with over 10 years of experience in handling business organization and commercial transactions. Tom received his undergraduate degree from Virginia Tech in 1993 and his J.D. from the University of Pittsburgh in 1997.(image)

HITECH Final Regulations Update: Coming Soon!

Fri, 13 May 2011 13:31:11 PDT

Susan McAndrew, deputy director for health information privacy at the Office for Civil Rights (OCR) indicated this week that various final regulations modifying the HIPAA privacy and security rules required by the Health Information Technology for Economic and Clinical Health Act (HITECH) will be issued soon. Health lawyers have been waiting on these regulations to better understand the full impact of the HITECH changes to HIPAA, including whether the "harm standard" will remain a part of the Interim Final Rule on breach notification.

According to a Health Information Security News article, McAndrew made this announcement this week while speaking at the 2011 NIST HIPAA Conference, Safeguarding Health Information: Building Assurance through HIPAA Security, held in Washington.

The article also indicated that a separate NPRM will be issued announcing the approach OCR plans to take regarding the accounting for disclosure modifications under the HITECH Act. The HITECH Act modified the traditional rule regarding those types of uses and disclosures that must be accounted for by health care providers and covered entities. Under the traditional rule -- health care providers did not have to provide an accounting of disclosure for uses and disclosures for treatment, payment, and health care operations. However, the modification by the HITECH Act now requires health care providers who utilize an electronic health record system (EHR)to provide, upon request, an accounting of disclosure of all uses and disclosures including those for treatment, payment, and health care operations which occurred within the last three year period. Of further interest will be how the NPRM suggests how business associates who obtain PHI from health care providers must also track and maintain a list of uses and disclosures for accounting of disclosure requests.(image)

WVCLE: Health Care Law 2011 Seminar

Tue, 10 May 2011 12:30:56 PDT

The West Virginia Continuing Legal Education Section of WVU College of Law will be sponsoring Health Care Law 2011 Seminar on May 20, 2011, in Charleston, West Virginia at WVU Medical Center - CAMC.

The Health Care Law 2011 Seminar will cover a variety of topics of interest to West Virginia health care attorneys. Topics include: Medical Mapractice Update, Protecting Medicare's Interest Under Section 111 and Mandatory Reporting Requirments, Risk Management Topics for Hospitals, Development and Update on ACOs, HIPAA/HITECH Update and Anatomy of a Health Care Data Breach, Stark and Fraud Abuse Update, and Lawyers and Law Firms as Business Associates.

I will be speaking on the changes to HIPAA under HITECH. The title for my presentation is "Anatomy of a Breach: Practical Tools to Handle a Breach and HIPAA/HITECH Updates."

Learn more about the seminar and how to register here.(image)

Leaves of 3 Let Them Be: Poison Ivy Advice from Dr. Coffield

Sun, 10 Apr 2011 07:35:41 PDT

Last week I was looking through some old printed emails and I ran across advice about poison ivy from my dad, LeMoyne Coffield. Since Spring is on the way and the poison ivy is starting to grow I thought I would share this with everyone (including some good advice for the golfers).My dad was not only my dad but he was my (our) family doctor. He was a lot of peoples family doctor. He had a wonderful way of providing advice and recommendations to his patients. His medical advice wasn't always the easiest and quickest solution - but it was usually the best long term practical advice.I wrote him an email back in the Spring of 2000. I had been cleaning up an area behind our house and had gotten a bad case of poison ivy on my arms, neck, and face. I started the email by saying, "Thought I would let you know that spring has arrived -- I got my first bout of poison ivy. Some lessons you taught me as a child (and adult) have never gotten through." As children he was always pointing out poison ivy, showing us what it looked like, and hoping that we would learn how to spot it from a distance. My email went on to say that I had gone to see my primary care doctor and he had prescribed an oral steroid (prednisone) and I said, "What do you think?" Like I often did - I was emailing him for his second opinion. Below is his advice back to me. Good advice for anyone who is starting their spring yard cleaning.By the way - if you don't know what poison ivy looks like look at this and remember, "Leaves of 3 let them be." [...]