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Tag: HIPAA

Medical Injustice – Contracts That Suppress Patient Comments About Their Doctors or Dentists


Last week we filed a class action complaint on behalf of the patients of a New York dentist, Stacy Makhnevich, over a form agreement that she imposes on all new patients to try to suppress any online comments on her work that she finds disagreeable.  In the form, Makhnevich promises not to evade HIPAA’s patient privacy protection in return for patients’ commitment not to disparage her, not to post any comments about her publicly; if the patient writes anything about the dentist, the patient assigns the copyright in those comments to Makhnevich.   Relying on the form, Makhnevich sent one of her patients invoices purporting to bill him a daily hundred-dollar fine for having posted comments about her on Internet review web sites.

The copyright assignment aspect of the agreement is especially dastardly.  It is intended to enable the dentist to send a DMCA takedown notice to the host of any web site where the criticism is posted.  Because the DMCA protects site hosts from liability for copyright infringement, but only if they act expeditiously to remove infringing material once they receive notice of its presence on their servers, hosts generally respond like Pavlov’s dog to such notices.  In theory, copyright could be asserted regardless of whether a comment is true or false, and regardless of whether it is an opinion that is constitutionally protected from libel claims; copyright can also be used as a basis for seeking awards of statutory damages even if there are no real damages.

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Lab Results For All!

On September 14, HHS released for comment draft lab results regulations that will, if finalized, effectively bathe the Achilles’ heel of health data in the River Styx of ¡data liberación! All lab results will be made available to patients, just like all other health data.  (See the HHS presser and YouTube video from the recent consumer health summit.  Todd Park, HHS CTO, is also the chief activist for what he calls ¡data liberación!)

Forgive me for mixing my metaphors (or whatever it is I just did), but even though there are just a couple dozen words of regulations at issue here, this is a big deal.

When HIPAA established a federal right for each individual to obtain a copy of his or her health records, in paper or electronic format, there were a couple of types of records called out as specifically exempt from this general rule of data liberation, in the HIPAA Privacy Rule45 CFR § 164.524(a)(1): psychotherapy notes, information compiled for use in an administrative or court proceeding, and lab results from what is known as a CLIA lab or a CLIA-exempt lab (including  “reference labs,” as in your specimens get referred there by the lab that collects them, or freestanding labs that a patient may be referred to for a test; these are not the labs that are in-house at many doctors’ offices, hospitals and other health care facilities — the in-house labs are part of the “parent” provider organization and their results are part of the parents’ health records already subject to HIPAA).Continue reading…

The Identity Theft Smoke Screen

Personal data privacy once again has taken front stage in Sorrel v. IMS Health, Inc.[1] Vermont passed the Vermont Confidentiality of Prescription Information Law that allows doctors which prescribe drugs to patients, to decide whether pharmacies can sell their prescription drug prescription records.[2] IMS Health as well as other health information companies contested the law, arguing that the law poses a restriction on commercial speech as access to such information helps pharmaceutical companies market their drugs effectively to doctors. The Supreme Court is now tasked with determining the constitutionality of the restriction on access to prescription information with regards to our First Amendment. [3]

However, this post is focused on the secondary effects asserted in amici curiae briefs supporting the petitioners of allowing companies to purchase such information, specifically the concern of data privacy and patient re-identification. [4] Under the Health Information Portability and Accountability Act (HIPAA), personal health information is de-identified by your local pharmacy prior to such information being shared with any third party. By de-identifying the data, your personal data cannot, it is believed, be linked or traced back to you. De-identifying your health information is a way for covered entities to share your information without your consent or authorization and in accordance with the law. The information once shared is completely anonymized. After the transfer to a third party, like IMS Health, your information is solely data of zeros and ones that translate to dates of dispensing and drug names. No longer does your prescription record list your name or month or day of birth. [5]Continue reading…

Facebook Misstep Costs RI Physician Fine, Job

In recent years many health care providers and managers have told me, time and again, that the health care world is accustomed to managing confidential patient information, and therefore doesn’t need much in the way of social media training and policy development.  This week brings news that should make those folks sit up and take notice.  A physician in Rhode Island, who was fired for a Facebook faux pas, has now been fined by the state medical board as well.  The physician posted a little too much information on Facebook — information about a patient that, combined with other publicly available information, allowed third parties to identify the patient.  The details of the story are available here and here.

The key takeaway from this story — and the Johnny-come-lately approach to health care social media taken by the Rhode Island hospital in question and the Boston teaching hospital that the Boston Globe turned to for comment — is that prevention is the best medicine.

Facebook and other social media are a fact of life, and cannot be ignored by health care providers and organizations.  They can even be used as a force for good.  As one example, take note of the recently-announced initiative by my colleague, Dr. Val, to start up a peer-reviewed tweetstream, @HealthyRT.  At he very least, health care providers and organizations should be monitoring social media for mentions so that they can reach out, as may be necessary, to address health care and public relations issues.Continue reading…

The ACO Rules & Privacy

One day before the first of April, HHS published the much anticipated rules defining the creation and operations of Accountable Care Organizations (ACO) spanning 429 pages of business regulation, analysis of various options available, proposed solutions and ways to measure and reward (punish) success (failure) in achieving HHS seemingly incompatible goals of providing better care for less money. I am fairly certain that health policy experts, health care economists and the multitude of industry stakeholders will be dissecting and analyzing the hefty document in great detail in the coming weeks. I started reading the document with an eye towards the ACO implications for HIT, which as expected are many, but something on page 108 made me stop in my tracks. HHS is proposing to share personally identifiable health information (PHI) contained in Medicare claims with ACO providers unless patients “opt-out”.

Beginning on page 108 and through 22 pages of tortured arguments, HHS makes the case for the legality and benefits of providing ACOs with PHI contained in Medicare claims, unless the patient actively withdraws consent for this type of transaction. The argument for the legality of claim data sharing rests on the nebulous HIPAA clause which allows disclosure of PHI for “health care operations” within a web of covered entities and business associates connecting the ACO with Medicare and other providers of health care services for a particular patient. HHS is proposing to make available four types of medical information to participating ACOs:Continue reading…

Crowdsourcing the Future: Health 2.0 and HIPAA

The Health 2.0 movement has seen incredible growth recently, with new tools and services continuously being released. Of course, Health 2.0 developers face a number of challenges when it comes to getting providers and patients to adopt new tools, including integrating into a health system that is still mostly paper-based. Another serious obstacle facing developers is how to interpret and, where appropriate, comply with the HIPAA privacy and security regulations.

Questions abound when it comes to Health 2.0 and HIPAA, and it’s vital we get them answered, both for the sake of protecting users’ privacy and to ensure people are able to experience the full benefits of innovative Health 2.0 tools. We can’t afford to see the public’s trust in new health information technology put at risk, nor can we afford to have innovation stifled.

To help solve this problem, the Center for Democracy & Technology (CDT) has launched a crowdsourcing project to determine the most vexing Health 2.0/HIPAA questions.

This is where you come in:

Whether you are a healthcare provider, a Health 2.0 developer or an e-patient, we hope you’ll visit our website to submit your questions on Health 2.0 and HIPAA.

Once CDT has received your questions, we’ll use them to urge the Office of Civil Rights, which enforces HIPAA, to provide clarification. We’ll accept questions until Feb. 11, 2011, so please weigh in soon, and ask others to do the same.

Deven McGraw is Director of the Health Privacy Project at the Center for Democracy & Technology.

Privacy Paradigms: From Consent to Reciprocal Transparency

Computational innovation may improve health care by creating stores of data vastly superior to those used by traditional medical research. But before patients and providers “buy in,” they need to know that medical privacy will be respected. We’re a long way from assuring that, but new ideas about the proper distribution and control of data might help build confidence in the system.

William Pewen’s post “Breach Notice: The Struggle for Medical Records Security Continues” is an excellent rundown of recent controversies in the field of electronic medical records (EMR) and health information technology (HIT). As he notes,

Many in Washington have the view that the Health Insurance Portability and Accountability Act (HIPAA) functions as a protective regulatory mechanism in medicine, yet its implementation actually opened the door to compromising the principle of research consent, and in fact codified the use of personal medical data in a wide range of business practices under the guise of permitted “health care operations.” Many patients are not presented with a HIPAA notice but instead are asked to sign a combined notice and waiver that adds consents for a variety of business activities designed to benefit the provider, not the patient. In this climate, patients have been outraged to receive solicitations for purchases ranging from drugs to burial plots, while at the same time receiving care which is too often uncoordinated and unsafe. It is no wonder that many Americans take a circumspect view of health IT.

Privacy law’s consent paradigm means that, generally speaking, data dissemination is not deemed an invasion of privacy if it is consented to. The consent paradigm requires individuals to decide whether or not, at any given time, they wish to protect their privacy. Some of the brightest minds in cyberlaw have focused on innovation designed to enable such self-protection. For instance, interdisciplinary research groups have proposed “personal data vaults” to manage the emanations of sensor networks. Jonathan Zittrain’s article on “privication” proposed that the same technologies used by copyright holders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information.Continue reading…

ClearPractice’s Nimble brings a comprehensive EMR to the iPad

While over 500 medical apps have been created for the iPad since its launch in April of this year, few attempt to bring an entire electronic medical record system onto the device. Today, St. Louis-based medical software company ClearPractice is releasing Nimble, which the company says is “the first comprehensive EMR solution developed in iOS to run natively on the iPad”.

IPad_Dashboard

With Nimble, ClearPractice aims to use the iPad to address several commonly cited issues about EMRs. They emphasize the iPad’s potential for removing barriers in EMR use and physician workflow by integrating the device and software in the care delivery process. The hope is that the iPad’s portability and accessibility will allow it (and thus Nimble) to be present wherever the doctor is—from the clinic to the hospital to the home—and make having an EMR more appealing, especially to doctors in small practices. Given that the app was built as a native iPad application, it attempts to take full advantage of the iPad’s unique interface and user experience.

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If HIT Plan A Doesn’t Work, What’s Plan B?

By VINCE KURAITIS, JD, & DAVID KIBBE, MD

Pop quiz: Among early-stage companies that are successful, what percentage are successful with the initial business model with which they started (Plan A) vs. a secondary business model (Plan B)?

Harvard Business School Professor Clay Christensen studied this issue.  He found that among successful companies, only 7% succeeded with their initial business model, while 93% evolved into a different business model.

So let’s take this finding and reexamine our human nature. In light of these statistics, what makes more sense:

  • Defending Plan A to your dying breath?
  • Assuming Plan A is probably flawed, and anticipating the need for Plan B without getting defensive?

We question many of the assumptions underlying HITECH Plan A. We also want to talk about the need and content for Plan B in a constructive way.Continue reading…

Medical Data in the Internet “Cloud” – Data Privacy

Robert.rowley

The concepts of “security” and “privacy” of medical information (Protected Health Information, or PHI) are closely intertwined. “Security,” as described in the second part of this series, has to do with breaking into medical data (either data at rest, or data in transit) and committing an act of theft. “Privacy,” on the other hand, has to do with permissions, and making sure that only the intended people can have access to PHI.

So, who actually “owns” the medical record? The legal status of medical records “ownership” is that they are the property of those who prepare them, rather than about whom they are concerned. These records are the medico-legal documentation of advice given. Such documentation, created by physicians about patients, is governed by doctor-patient confidentiality, and cannot be discovered by any outside party without consent. HIPAA Privacy Rules govern the steps needed to ensure that this level of confidentiality is protected against theft (security) and against unauthorized viewing (privacy). HIPAA-covered entities (medical professionals and hospitals) are held accountable for ensuring such confidentiality, and can be penalized for violation.

The question of privacy, then, revolves around sharing PHI between professionals in order to coordinate health care – after all, health care is delivered by networks (formal or informal), and data sharing is necessary to deliver best-practices levels of care. In the traditional world of paper charts, record-sharing is accomplished by obtaining consent from the patient (usually a signed document placed in the chart), and then faxing the appropriate pages from the chart to the intended recipient. Hopefully the recipient’s fax number is dialed correctly, since faxing to mistaken parties is a vulnerability for unintended privacy violation using this technology.

When medical data moves from a paper chart to a locally-installed EHR, the organization of medical data across the landscape is not really changed – each practice keeps its own database (the equivalent of its own paper chart rack), and imports/exports copies of clinical data to others according to patient permission (just like with traditional paper records). Such clinical data sharing is often done by printout-and-fax, or by export/import of Continuity of Care Documents (CCDs) if the EHR systems on each end support such functionality.

As technology evolves, new layers of medical data sharing emerge, which challenge the simple traditional “give permission and send a copy” method of ensuring privacy. Health Information Exchanges (HIEs) are emerging regionally and nationally, and are supported by the Office of the National Coordinator (ONC) for health IT. HIEs are intended to be data-exchange platforms between practitioners who might be using different EHR systems (that do not natively “talk” to each other). Only certain types of data are uploaded by an EHR into an HIE – patient demographic information, medication lists, allergies, immunization histories. HIEs, then, function as a sort of evolving “library” of protected health data, where local EHRs feed their data on a patient-permission-granted basis, and can download data (if granted the permission to do so) as needed. The potential impact on quality of care is dramatic.

In addition to being a “library” of shared data, HIEs can serve to assist in public health surveillance. This can range from CDC-based surveillance of the emergence or prevalence of specific diseases, to FDA-based post-market surveys of the use of new medications (and shortening the timeline for identifying problems should they arise). This sort of use of HIE data is de-identified, so that permissions around using PHI are not violated – patient-specific data in HIEs is only used with permission, and used for direct patient care (e.g. downloading into your own EHR your patient’s immunization history).

HIEs, however, are essentially a “bridge technology” that tries to connect a landscape where health data remains segregated into “data silos.” A newer frontier of technology can be seen arising from web-hosted, Internet “cloud”-based EHRs, such as Practice Fusion. In this setting, a single data structure serves all practices everywhere, and local user-permissions determine which subset of that data are delivered as a particular practice’s “charts.” This technology raises the potential to actually share a common chart among multiple non-affiliated practitioners – based upon one physician referring a patient to another for consultation (with the patient’s permission to make the referral), both practices are then allowed access to the shared chart, see each other’s chart notes, view the patient medications, review labs already done (reducing duplication of services), see what imaging has already been accomplished, securely message one another, and even create their own chart-note entries into the common, shared chart.

This “new frontier” of technology, where clinical chart sharing between practices (based on patient permission) occurs across all boundaries of care, makes the Practice Fusion vision an “EHR with a built-in HIE.” Extending this even further – shared EHRs and linkage with Personal Health Records (PHRs) – is beyond the scope of this particular article, and will be addressed subsequently. With good design, as pioneered here, the balance between ensuring security and privacy of PHI on the one hand, and permission-based sharing of clinical information for the betterment of overall health care delivery on the other hand, a truly remarkable technology is being built. The impact on transforming health care is profound.

Dr. Rowley is a family practice physician and Practice Fusion’s Chief Medical Officer. Dr. Rowley has a first-hand perspective on the technology needs and challenges faced by healthcare practitioners from his 30 year career in the sector, including experience as a Medical Director with Hill Physicians Medical Group and as a developer of the early EMR system Medical ChartWizard. His family practice in Hayward, CA has functioned without paper charts since 2002.  You can find more of his writing at the Practice Fusion Blog, where this post first appeared.

If you liked this post you might be interested in these related posts:

Medical Data in the Internet “Cloud” (part 1) – Data Safety
Is “Cloud Computing” Right for Health IT?
Freenomics and Healthcare IT
Practice Fusion gets investment from Salesforce.com

September 27, 2009 in EHR/EMR, Privacy | Permalink

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