HIPAA

flying cadeuciiOver the last five years, the United States has undergone more significant changes to its health care system perhaps since Medicare and Medicaid were introduced in the 1960s. The Health Information Technology for Economic and Clinical Health (HITECH) Act in 2009 and the Patient Protection and Affordable Care Act of 2010 have paved the way for tremendous changes to our system’s information backbone and aim to provide more Americans access to health care.

But one often-overlooked segment of our health care system has been letting us down. Patients’ access to their own medical information remains limited. The HIPAA Privacy Rule grants individuals the right to copies of their own medical records, but it comes at a noteworthy cost—health care providers are allowed to charge patients a fee for each record request. As explained on the Department of Health and Human Services’ website, “the Privacy Rule permits the covered entity to impose reasonable, cost-based fees.”

HIPAA is a federal regulation, so the states have each imposed guidelines outlining their own interpretations of “reasonable.” Ideally, the price of a record request would remain relatively constant—after all, the cost of producing these records does not differ significantly from state to state. But in reality, the cost of requesting one’s medical record is not only unreasonably expensive; it is also inconsistent, costing dramatically different amounts based on local regulation. Continue reading “An Open Letter to the People Who Brought Us HIPAA”

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John Halamka-Google Glass

Of the nearly 100 people I interviewed for my upcoming book, John Halmaka was one of the most fascinating. Halamka is CIO of Beth Israel Deaconess Medical Center and a national leader in health IT policy. He also runs a family farm, on which he raises ducks, alpacas and llamas. His penchant for black mock turtlenecks, along with his brilliance and quirkiness, raise inevitable comparisons to Steve Jobs. I interviewed him in Boston on August 12, 2014.

Our conversation was very wide ranging, but I was particularly struck by what Halamka had to say about federal privacy regulations and HIPAA, and their impact on his job as CIO. Let’s start with that.

Halamka: Not long ago, one of our physicians went into an Apple store and bought a laptop. He returned to his office, plugged it in, and synched his e-mail. He then left for a meeting. When he came back, the laptop was gone. We looked at the video footage and saw that a known felon had entered the building, grabbed the laptop, and fled. We found him, and he was arrested.

Now, what is the likelihood that this drug fiend stole the device because he had identity theft in mind? That would be zero. But the case has now exceeded $500,000 in legal fees, forensic work, and investigations. We are close to signing a settlement agreement where we basically say, “It wasn’t our fault but here’s a set of actions Beth Israel will put in place so that no doctor is ever allowed again to bring a device into our environment and download patient data to it.”

Continue reading “Black Turtlenecks, Data Fiends and Code. An Interview with John Halamka”

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Long time (well very long time) readers of THCB will remember my extreme frustration with Patients Privacyflying cadeucii Rights founder Deborah Peel who as far as I can tell spent the entire 2000s opposing electronic health data in general and commercial EMR vendors in particular. I even wrote a very critical piece about her and the people from the World Privacy Forum who I felt were fellow travelers back in 2008. And perhaps nothing annoyed me more than her consistently claiming that data exchange was illegal and that vendors were selling personally identified health data for marketing and related purposes to non-covered entities (which is illegal under HIPAA).

However, in recent years Deborah has teamed up with Adrian Gropper, whom I respect and seemed to change her tune from “all electronic data violates privacy and is therefore bad”, to “we can do health data in a way that safeguards privacy but achieves the efficiencies of care improvement via electronic data exchange”. But she never really came clean on all those claims about vendors selling personally identified health data, and in a semi-related thread on THCB last week, it all came back. Including some outrageous statements on the extent of, value of, and implications of selling personally identified health data. So I’ve decided to move all the relevant comments to this blog post and let the disagreement continue.

What started the conversation was a throwaway paragraph at the end of a comment I left in which I basically told Adrian to rewrite what he was saying in such a way that normal people could understand it. Here’s my last paragraph

As it is, this is not a helpful open letter, and it makes a bunch of aggressive claims against mostly teeny vendors who have historically been on the patients’ side in terms of accessing data. So Adrian, Deborah & PPR need to do a lot better. Or else they risk being excluded back to the fringes like they were in the days when Deborah & her allies at the World Privacy Forum were making ridiculous statements about the concept of data exchange.

Here’s Deborah’s first comment Continue reading “Is Deborah Peel up to her old tricks?”

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Screen Shot 2014-11-05 at 10.08.09 AMDear ACO General Hospital:

Thanks for contacting me about my most recent blog post.  I’m sorry to scare your administration about HIPAA information, but I am equally concerned about that and will always do my best to respect the privacy of my patients.  At your request I hid even more of that information.

I know it’s kind of embarrassing to have that kind of thing made public, and I am overall grateful that you did not take it personally that I put the “transition of care” documents for all to see.  My goal was not to embarrass or ridicule, it was to point out what our healthcare system is driving us all toward: replacing patient care with documentation.  You are being encouraged by the system to produce those ridiculous documents, as they are part of the deal you accepted when you became “ACO General” in the first place.

Continue reading “Dear ACO General Hospital”

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Optimized-Ornstein

This story was co-published with NPR’s “Shots” blog.

In the name of patient privacy, a security guard at a hospital in Springfield, Missouri, threatened a mother with jail for trying to take a photograph of her own son. In the name of patient privacy , a Daytona Beach, Florida, nursing home said it couldn’t cooperate with police investigating allegations of a possible rape against one of its residents.

In the name of patient privacy, the U.S. Department of Veterans Affairs allegedly threatened or retaliated against employees who were trying to blow the whistle on agency wrongdoing.When the federal Health Insurance Portability and Accountability Act passed in 1996, its laudable provisions included preventing patients’ medical information from being shared without their consent and other important privacy assurances.But as the litany of recent examples show, HIPAA, as the law is commonly known, is open to misinterpretation – and sometimes provides cover for health institutions that are protecting their own interests, not patients’.

“Sometimes it’s really hard to tell whether people are just genuinely confused or misinformed, or whether they’re intentionally obfuscating,” said Deven McGraw, partner in the healthcare practice of Manatt, Phelps & Phillips and former director of the Health Privacy Project at the Center for Democracy & Technology.For example, McGraw said, a frequent health privacy complaint to the U.S. Department of Health and Human Services Office of Civil Rights is that health providers have denied patients access to their medical records, citing HIPAA. In fact, this is one of the law’s signature guarantees.”Often they’re told [by hospitals that] HIPAA doesn’t allow you to have your records, when the exact opposite is true,” McGraw said.

I’ve seen firsthand how HIPAA can be incorrectly invoked.

In 2005, when I was a reporter at the Los Angeles Times, I was asked to help cover a train derailment in Glendale, California, by trying to talk to injured patients at local hospitals. Some hospitals refused to help arrange any interviews, citing federal patient privacy laws. Other hospitals were far more accommodating, offering to contact patients and ask if they were willing to talk to a reporter. Some did. It seemed to me that the hospitals that cited HIPAA simply didn’t want to ask patients for permission.

Continue reading “Are Patient Privacy Laws Being Abused to Protect Medical Centers?”

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davidshaywitzAt his yearly CEO summit, noted VC Vinod Khoslaspoke with Google co-founders Sergey Brin and Larry Page (file under “King, Good To Be The”).

Towards the end of a wide-ranging conversation that encompassed driverless cars, flying wind turbines, and high-altitude balloons providing internet access, Khosla began to ask about health.

Specifically, Khosla wondered whether they could “imagine Google becoming a health company? Maybe a larger business than the search business or the media business?”

Their response, surprisingly, was basically, “no.”  While glucose-sensing contact lenses might be “very cool,” in the words of Larry Page, Brin notes that,

“Generally, health is just so heavily regulated. It’s just a painful business to be in. It’s just not necessarily how I want to spend my time. Even though we do have some health projects, and we’ll be doing that to a certain extent. But I think the regulatory burden in the U.S. is so high that think it would dissuade a lot of entrepreneurs.”

Adds Page,

“We have Calico, obviously, we did that with Art Levinson, which is pretty independent effort. Focuses on health and longevity. I’m really excited about that. I am really excited about the possibility of data also, to improve health. But that’s– I think what Sergey’s saying, it’s so heavily regulated. It’s a difficult area. I can give you an example. Imagine you had the ability to search people’s medical records in the U.S.. Any medical researcher can do it. Maybe they have the names removed. Maybe when the medical researcher searches your data, you get to see which researcher searched it and why. I imagine that would save 10,000 lives in the first year. Just that. That’s almost impossible to do because of HIPAA. I do worry that we regulate ourselves out of some really great possibilities that are certainly on the data-mining end.”

Khosla then asked a question about a use case involving one of my favorite portfolio companies of his, Ginger.io, related to the monitoring of a patient’s psychiatric state.

Responded Page, “I was talking to them about that last night. It was cool.”

That pretty much captures Brin and Page’s view of healthcare – fun to work on a few “cool” projects, but beyond that, the regulatory challenges are just too great to warrant serious investment.

Continue reading “Google Co-Founders: “Thanks, But No Thanks””

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Today, ONC released a report on patient matching practices and to the casual reader it will look like a byzantine subject. It’s not.

You should care about patient matching, and you will.

It impacts your ability to coordinate care, purchase life and disability insurance, and maybe even your job. Through ID theft, it also impacts your safety and security. Patient matching’s most significant impact, however, could be to your pocketbook as it’s being used to fix prices and reduce competition in a high deductible insurance system that makes families subject up to $12,700 of out-of-pocket expenses every year.

Patient matching is the healthcare cousin of NSA surveillance.

Health IT’s watershed is when people finally realize that hospital privacy and security practices are unfair and we begin to demand consent, data minimization and transparency for our most intimate information. The practices suggested by Patient Privacy Rights are relatively simple and obvious and will be discussed toward the end of this article.

Health IT tries to be different from other IT sectors. There are many reasons for this, few of them are good reasons. Health IT practices are dictated by HIPAA, where the rest of IT is either FTC or the Fair Credit Reporting Act. Healthcare is mostly paid by third-party insurance and so the risks of fraud are different than in traditional markets.

Healthcare is delivered by strictly licensed professionals regulated differently than the institutions that purchase the Health IT. These are the major reasons for healthcare IT exceptionalism but they are not a good excuse for bad privacy and security practices, so this is about to change.

Health IT privacy and security are in tatters, and nowhere is it more evident than the “patient matching” discussion. Although HIPAA has some significant security features, it also eliminated a patient’s right to consent and Fair Information Practice.

Continue reading “What You Need to Know About Patient Matching and Your Privacy and What You Can Do About It”

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Today, academic medicine and health policy research resemble the automobile industry of the early 20th century — a large number of small shops developing unique products at high cost with no one achieving significant economies of scale or scope.

Academics, medical centers, and innovators often work independently or in small groups, with unconnected health datasets that provide incomplete pictures of the health statuses and health care practices of Americans.

Health care data needs a “Henry Ford” moment to move from a realm of unconnected and unwieldy data to a world of connected and matched data with a common support for licensing, legal, and computing infrastructure. Physicians, researchers, and policymakers should be able to access linked databases of medical records, claims, vital statistics, surveys, and other demographic data.

To do this, the health care community must bring disparate health data together, maintaining the highest standards of security to protect confidential and sensitive data, and deal with the myriad legal issues associated with data acquisition, licensing, record matching, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Just as the Model-T revolutionized car production and, by extension, transit, the creation of smart health data enclaves will revolutionize care delivery, health policy, and health care research. We propose to facilitate these enclaves through a governance structure know as a digital rights manager (DRM).

The concept of a DRM is common in the entertainment (The American Society of Composers, Authors and Publishers or ASCAP would be an example) and legal industries.  If successful, DRMs would be a vital component of a data-enhanced health care industry.

Giving birth to change. The data enhanced health care industry is coming, but it needs a midwife.There has been explosive growth in the use of electronic medical records, electronic prescribing, and digital imaging by health care providers. Outside the physician’s office, disease registries, medical associations, insurers, government agencies, and laboratories have also been gathering digital pieces of information on the health status, care regimes, and health care costs of Americans.

However, little to none of these data have been integrated, and most remain siloed within provider groups, health plans, or government offices.

Continue reading “Could Digital Rights Management Solve Healthcare’s Data Crisis?”

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While there has been much focus lately on the ways in which ObamaCare is chilling the growth of private business, we should not overlook the continuing deleterious effects of the one surviving relic of HillaryCare, the Health Insurance Portability and Accountability Act (HIPAA). Quietly, September 23 came and went as the compliance effective date for a new rule, expanding the reach of HIPAA, and likely driving many smaller players out of the health care industry.

Spearheaded by then First Lady Clinton, HIPAA was established in 1996 to improve privacy of personal health information, referred to as protected health information, or PHI. It requires health care providers, known as “covered entities,” and their vendors, contractors, and agents with access to PHI, known as “business associates,” to comply with certain privacy standards under its “Privacy Rule,” and with certain security standards under its “Security Rule,” in order to protect sensitive health information that is held or transferred in electronic form.

Over the past decade, equipped with the noble aim of protecting our privacy, HIPAA has successfully demonstrated the power of the law of unintended consequences. Improved protection of PHI has been marginal. However, HIPAA has impeded communication among physicians, reduced physician time devoted to patient care, and deterred medical research. And all at an enormous cost of compliance. While estimates vary widely, the cost of compliance for many providers has been in the millions.

Now, rather than take heed, the government has decided to double down through expansion. Under the Health Information and Technology for Economic and Clinical Health Act (HITECH), a corollary of HIPAA, promulgated to create incentives to facilitate the development of healthcare information technology, the government has sought to update the requirements of HIPAA in light of the changing dynamics of technology and health practices, increasing the safeguards and obligations of health care providers and their business associates.

Continue reading “Another Law Raising the Cost of Health Care”

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Thanks to the flood of new data expected to enter the health field from all angles–patient sensors, public health requirements in Meaningful Use, records on providers released by the US government, previously suppressed clinical research to be published by pharmaceutical companies–the health field faces a fork in the road, one direction headed toward chaos and the other toward order.

The road toward chaos is forged by the providers’ and insurers’ appetites for categorizing us, marketing to us, and controlling our use of the health care system, abetted by lax regulation. The alternative road is toward a healthy data order where privacy is protected, records contain more reliable information, and research is supported or even initiated by cooperating patients.

This was my main take-away from a day of meetings and a panel held recently by Patient Privacy Rights, a non-profit for whom I have volunteered during the past three years. The organization itself has evolved greatly during that time, tempering much of the negativity in which it began and producing a stream of productive proposals for improving the collection and reuse of health data. One recent contribution consists of measuring and grading how closely technology systems, websites, and applications meet patients’ expectations to control and understand personal health data flows.

With sponsorship by Microsoft at their Innovation and Policy Center in Washington, DC, PPR offered a public panel on privacy–which was attended by 25 guests, a very good turnout for something publicized very modestly–to capitalize on current public discussions about government data collection, and (without taking a stand on what the NSA does) to alert people to the many “little NSAs” trying to get their hands on our personal health data.

It was a privilege and an eye-opener to be part of Friday’s panel, which was moderated by noted privacy expert Daniel Weitzner and included Dr. Deborah Peel (founder of PPR), Dr. Adrian Gropper (CTO of PPR), Latanya Sweeney of Harvard and MIT, journalist Sydney Brownstone of Fast Company, and me. Although this article incorporates much that I heard from the participants, it consists largely of my own opinions and observations.

Continue reading “Chaos and Order: An Update From Patient Privacy Rights”

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