First, Do No Wrong

An NPR program on Friday 7/29/2010, which excited listener call-in interest, dealt with patients' rights to their own medical records.  Neither the moderator nor the program's physician consultants mentioned highly relevant federal law on this subject and this blog won't deal with that issue today. The program was short on significant statistics and long on testimonials of questionable value.

The program focused on an experimental New England medical teaching institution-based project to post patients' medical records on a secure internet site for them to review.  The proposed benefits included better patient information about what the doctor was thinking, the availability of records for patients to download and then provide to other doctors, and increased patient trust in physicians because of knowledge of what was in the record. No downside to this process was discussed.

For years, my practice habit was to always dictate my "progress notes"while the patient was sitting two feet away from me. The process took no more than 3 minutes and informed patients about my understanding of their relevant medical histories,  physical findings, interpretation of laboratory data and the diagnosis I had formulated, and my treatment plan and other issues which pertained to that visit.  Unlike the process of later posting the clinician's notes on the internet, my system allowed (the patient was invited to) patient correction of any errors and for me to make the correction or explain why I chose not to.  I had made it my habit to encourage patients (and often accompanying family members) to ask for clarification and for more information about the subjects I had discussed immediately after I signaled that my dictation had ended. When patients left my office, they were secure in their knowledge of what was (and was not)  in their  charts and additional requests by patients for copies of their records was unusual unless they needed records for medical care elsewhere.

The New England experimental program involving electronic health records has several downsides. Patients may self-censor the information provided to physicians and physicians may self-censor what they include in medical records.  Patients' reviews of the their records is deferred which may leave them with significant delay and unnecessary anxiety about what doctors thought. There is no timely patient-physician give and take with a chance for others (i.e., family members brought in by patients) involved in patients' care to participate in the discussion process. And, it takes strong physician training and discipline to provide a complete internet-posted electronic health record which even touches on serious issues such as interpersonal family relationships, the consideration of the possibility or presence of serious social diseases (such as HIV, syphilis, gonorrhea),  or situations, conditions or diseases which may result in deleterious insurer action, employer action, government action or adverse legal consequences.

Maybe we should slow down the use of technology, and bring smart social scientists into the process, so that we do no wrong.

US Government Action Against Rite Aid's Patient Privacy Breaches

I received this notice from HHS today, July 27, 2010 and present it unedited:

 "Rite Aid Agrees to Pay $1 Million to Settle HIPAA Privacy Case

Company agrees to substantial corrective action to safeguard consumer information

July 27, 2010

"Rite Aid Corporation and its 40 affiliated entities have agreed to pay $1 million to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule, the U.S. Department of Health and Human Services (HHS) announced today. In a coordinated action, Rite Aid also signed a consent order with the Federal Trade Commission (FTC) to settle potential violations of the FTC Act.

 "Rite Aid, one of the nation’s largest drug store chains, has also agreed to take corrective action to improve policies and procedures to safeguard the privacy of its customers when disposing of identifying information on pill bottle labels and other health information. The settlements apply to all of Rite Aid’s nearly 4,800 retail pharmacies and follow an extensive joint investigation by the HHS Office for Civil Rights (OCR) and the FTC.

"OCR, which enforces the HIPAA Privacy and Security Rules, opened its investigation of Rite Aid after television media videotaped incidents in which pharmacies were shown to have disposed of prescriptions and labeled pill bottles containing individuals’ identifiable information in industrial trash containers that were accessible to the public. These incidents were reported as occurring in a variety of cities across the United States.  Rite Aid pharmacy stores in several of the cities were highlighted in media reports.

"Disposing of individuals’ health information in an industrial trash container accessible to unauthorized persons is not compliant with several requirements of the HIPAA Privacy Rule and exposes the individuals’ information to the risk of identity theft and other crimes.  This is the second joint investigation and settlement conducted by OCR and FTC. OCR and FTC settled a similar case involving another national drug store chain in February 2009.

"The HIPAA Privacy Rule requires health plans, health care clearinghouses and most health care providers (covered entities), including most pharmacies, to safeguard the privacy of patient information, including such information during its disposal.

"Among other issues, the reviews by OCR and the FTC indicated that:

·        Rite Aid failed to implement adequate policies and procedures to appropriately safeguard patient information during the disposal process;

·        Rite Aid failed to adequately train employees on how to dispose of such information properly; and

·        Rite Aid did not maintain a sanctions policy for members of its workforce who failed to properly dispose of patient information.

"Under the HHS resolution agreement, Rite Aid agreed to pay a $1 million resolution amount to HHS and must implement a strong corrective action program that includes:

·        Revising and distributing its policies and procedures regarding disposal of protected health information and sanctioning workers who do not follow them;

·        Training workforce members on these new requirements;

·        Conducting internal monitoring; and

·        Engaging a qualified, independent third-party assessor to conduct compliance reviews and render reports to HHS.

"Rite Aid has also agreed to external independent assessments of its pharmacy stores’ compliance with the FTC consent order. The HHS corrective action plan will be in place for three years; the FTC order will be in place for 20 years.

"For additional information and to read the Resolution Agreement, visit www.hhs.gov/ocr/privacy.

______________________________

__________________________________________________________________________ This email "is being sent to you from the OCR-Privacy-List listserv, operated by the Office for Civil Rights (OCR) in the US Department of Health and Human Services. This is an announce-only list, a resource to distribute information about the HIPAA Privacy and Security Rules. For additional information on a wide range of topics about the Privacy and Security Rules, please visit the OCR Privacy website at http://www.hhs.gov/ocr/privacy/index.html. You can also call the OCR Privacy toll-free phone line at (866) 627-7748. Information about OCR's civil rights authorities and responsibilities can be found on the OCR home page at http://www.hhs.gov/ocr/office/index.html. If you believe that a person or organization covered by the Privacy and Security Rules (a "covered entity") violated your health information privacy rights or otherwise violated the Privacy or Security Rules, you may file a complaint with OCR. For additional information about how to file a complaint, visit OCR's web page on filing complaints at http://www.hhs.gov/ocr/privacy/hipaa/complaints/index.html. To subscribe to or unsubscribe from the list serv, go to https://list.nih.gov/cgi-bin/wa.exe?SUBED1=OCR-PRIVACY-LIST&A

Gee, The NY Times Finally Noticed: The Fox Is Guarding the Hen House

Our U.S.government is not expert in the "insurance risk" business, but health insurers and HMOs, which may not have corporate competence in health care but do understand their respective financial bottom lines, understand the concept of risk very well. And corporate health insurers and HMOs lobby for laws which explicitly limit their risk or allow them to limit their risk by defining that risk away and influencing their friends at the states' level to help them.

As Reed Abelson of the Times describes in his 7/24/10  "For Insurers Fight Is Now Over Details" article, insurers are trying to define away their risk under the health reform provision which requires that 80 cents of each premium dollar be spent on the welfare of patients. Instead of the 80 cents purchasing actual health goods and services, the health care industry is attempting is use that 80 cents to pay for the paperwork and clerical functions involved in credentialing doctors in its networks, for commissions to those who sell insurance, for taxes on investment income and other items which will improve its bottom line (such as policing health care billing fraud), but not the health care bottom line of those insured under the health reform package.

Insurers are already showing their willingness to dump sick kids who are under individual (not group) health insurance policies as they manipulate their exposures to risk. Our health care premiums will buy less health care, more bureaucratic services, and we will not have the true reform promised by the Obama administration.  The health insurance and HMO industry, guarding the hen house like foxes, will take care of their needs first and provide only left-overs for Americans who will dig deep into their pockets for health insurane coverage.

Random Vacation Thought

It's not really a vacation, but a conference which runs from 7AM to midnight for 5-1/2 days, providing lots of stimuli for random thoughts.

My thought was: 0 for 3 is fine when (1) was a health reform featuring a single payer system; (2) was a proposal for growing our health professional force by providing sweat-equity subsidies for  college and professional science education and training and (3) was abolishing Medicaid and providing health care to all Americans on a financially and ethically sound basis. 

Disagreement on Benefits of Computerized Health Records

Robert Pear, writing in the 6/7/2010 New York Times ("Doctors and Hospitals Say Goals on Computerized Records Are Unrealistic") quotes several sources to support his thesis that the Federal Government has promulgated inappropriate expectations and time-lines for implementation of billions of dollars ($34 billion) in subsidies for the purchase of health care computer systems by doctors and hospitals.

Although medical literature is divided on whether computerization benefits medical care outcome quality, it seems that medical and hospital administrators, who have no direct patient care ongoing experience and may be interested in the financial benefits of the subsidy, tend to praise the concept of computerization, though not the Obama administration's expectation and timelines.  For my part, I have never seen a computer that can quickly and inexpensively find a breast or testicular lump, or detect a swollen lymph node in the neck, or read a drug-seeking patient's body language. On the other hand, physicians who spend their time entering data into computer keypads probably won't have the time or incentive to carefully check for those breast, testicular and lymph node lumps and will probably find their patient flow statistics enhanced by giving the narcotic-seeking patients the drugs they want rather than deal with the complexities of care that these patient require.

The real benefits of the subsidy may be China, whose industries churn out huge numbers of (?virus infected?) computers which will be bought by American health care providers and brought into doctors' offices and health care facilities where they will store highly sensitive personal data. As someone whose personal medical data was stolen from a health care facility, I wonder if we really know what we are getting into?

Definition Of An Expert

We've seen lots of definitions of  "expert" but they offer no help. Here's one, I've drawn on experience to create, for you to use as you declare your independence this weekend:  an expert is a person who can live with increasing levels of uncertainty.

Health Care: Rights And Obligations

Dean Kagan was not my Harvard Law School professor of constitutional law, but Professor Arthur Sutherland, a gentle scholar with a penetrating mind (and wit) was. He taught us that rights are closely tied to obligations. Although health care issues may seem too mundane to be linked to Harvard legal principles, Sutherland's message remains relevant: health care rights and obligations are inextricably linked.

In 2008, when I started this blog, I discussed the franchise that health care professionals obtain when they receive their licenses, granting them their rights to practice, and noted that their rights were accompanied by serious professional obligations to provide services in the public interest which those licenses were granted to serve. For physicians, it means the obligation to provide care for desperately ill patients who may not be able to afford the health care provider's "usual and customary fee." For licensed (franchised) hospitals, whether for-profit or not-for-profit, it means taking care of the needs of those who would become seriously impaired, suffer unnecessary pain, or die without the hospital services the institution is licensed to provide. For licensed (franchised) insurance companies, it means considering issues above and beyond profit when underwriting and providing insurance benefits. For patients who proclaim their rights to health care, it means taking those personal measures which promote health rather than (i.e., alcohol, tobacco and dangerous drugs as well-as high-risk behaviors) demand that society take the responsibility to correct the damage they have done to themselves. It may mean understanding that the demands which an individual makes on the health care system may be unrealistic, unnecessary and economically impossible and, if met, may result in the system being unable to provide basic care to others.

Each of us will require health care. When we (or our surrogates) make demands upon the our health system, we should understand the system's capacity, it's obligations and our own. Health care does not represent a bottomless trough at which we can all line up to get our fill. Nor is it an ever-growing source of revenue to its franchisees.

What are your health care rights? And what are your obligations?