Governor Elect Manchin Nominates Martha Walker as DHHR Secretary

Yesterday it was announced that Governor Elect Joe Manchin named fomer State Senator Martha Yeager Walker to head the West Virginia Department of Health and Human Resources. During her tenure in the Senate she was the Chairperson of the Senate Health Committee. Currently Walker has been serving as a board member of the West Virginia Public Service Commission.



An article on the appointment also appeared in today's Charleston Gazette.

Report on the Financial Outlook for West Virginia Acute Care Hospitals

An article appearing in the January 12, 2004 Charleston Gazette reported that less than one-half of the acute care hospitals in West Virignia are profitable. The article reported that only four hospitals had operating margins of 5 percent or better.



The information came from a report made by Sonia Chambers, Chair of the West Virginia Health Care Authority to the Legislative Oversight Commission on Health and Human Rescources Accountability.



Below is a copy of the article from the Charleston Gazette's website edition.





January 12, 2005

Hospitals get bleak forecast

By Phil Kabler

Staff writer



Fewer than half of all acute-care hospitals in the state are profitable, and the financial outlook for the industry is getting worse, the chairwoman of the state Health Care Authority told legislators Tuesday.



“There are a number of facilities in West Virginia that are starting to have serious financial difficulties,” Sonia Chambers told the Legislative Oversight Commission on Health and Human Resources Accountability.



For 2003, the most recent year available, only 19 of the state’s 41 acute-care hospitals reported a profit, according the HCA report.



Of those, only four had operating margins of 5 percent or better, topped by Greenbrier Valley Hospital at 9.3 percent, she said.



For the remaining 22 hospitals, operating losses ranged from 0.2 percent to nearly 23 percent at Welch Community Hospital.



“The financial outlook continues to slide,” Chambers said. “A number of West Virginia hospitals do not have the financial reserves to continue to sustain losses.”



She said hospital expenses increased only 6.6 percent in 2003, but said patient revenue has declined as underinsured or uninsured patients have increased.



Chambers said a particular concern is the increasing numbers of uninsured West Virginians between the ages of 50 and 64, who lost their health insurance coverage through company bankruptcy or downsizing.



Hospitals also had to write off as uncollectible about $400 million in charity care and bad debts in 2003.



The amount of uncompensated care — 6.2 percent of all patients — was roughly unchanged from 2002, Chambers said.



Steven Summer, director of the West Virginia Hospital Association, said the authority’s report reaffirms what the hospital industry has been saying for some time.



“The bottom line is, most hospitals can’t survive on income from patient care,” he said. “The biggest challenge we face is the growing population of people with non-commercial insurance.”



He said a significant percentage of West Virginians are insured through government-operated plans, such as Medicare, Medicaid, and the Public Employees Insurance Agency, which he said set low reimbursement rates for health-care services.



Closure or consolidation of hospitals would have a serious impact on the state, and not just on the quality of health care, Chambers noted.



Hospitals are a significant force in the state’s economy, the authority’s report found, accounting for 36,411 full-time jobs and a payroll of $1.8 billion in 2003.



To contact staff writer Phil Kabler, use e-mail or call 348-1220.

Reporting of Contraband to Law Enforcement vs. Legal and Ethical Duty of Medical Confidentiality

Below is an interesting article which appeared in the Lincoln County News, Lincoln County, Maine addressing the competing interests between health care providers and law enforcement on the handling of contraband found on patients who come to a health care provider for emergency treatment.



Does a health care provider have a responsibility to report or provide contraband to law enforcement? Do the new privacy standards under HIPAA or eithical standards of medical confidentiality prevent a health care provider from disclosing or providing the contraband to law enforcement? This The article takes a practical look at these issues.



I have had a number of clients raise this question under the privacy provisions of HIPAA. We have discussed the legal responsibilities, pros/cons of reporting contraband to law enforcement, duty of confidentiality to patinet, liability of the health care provider and need to maintain a good working relationship with law enforcement.



Hospital, Police Consider Privacy vs Enforcement

By Sherwood Olin

A recent conflict of interest in Damariscotta has put Miles Memorial Hospital in the delicate position of cooperating with local law enforcement while adhering to legal and ethical standards of medical confidentiality.



On Dec. 3, acting upon information and belief, the Damariscotta Police Dept. executed a search warrant on the hospital. Information developed by the search warrant subsequently resulted in the arrest of a Friendship woman on drug charges.



According to a police report, Devin E. Crowley, 28, was arrested by state police in Friendship Dec. 8 and charged with unlawful possession of scheduled drugs.



According to reliable sources, Crowley was receiving treatment at Miles for injuries received in a traffic accident on or around Dec. 1 when a number of packages containing a powder like substance were discovered on her person.



According to Damariscotta Police Chief Steve Drake, anonymous information led to the issuing of the warrant. Among the items seized were a sealed biohazard bag containing the powder and the medical report of Crowley’s Dec. 1 treatment.



Preliminary tests have indicated the powder to be heroin, Drake said.



According to Miles Hospital Chief Executive Officer Judy Tarr, the hospital and local police are both fulfilling their legal obligations. Tarr points out the hospital is bound by the strictest of confidentiality laws, federally regulated under the 2003 Health Insurance Portability and Accountability Act (HIPA).



In regards to patient care, the hospital is in the health care business, not law enforcement, Tarr said. Patients in need need to know they can come to the hospital for treatment without worrying whether they will be reported to law enforcement for an alleged offense.



“The hospital needs to be a safe haven for people who need treatment,” Tarr said.



Miles Hospital attorney Jim Bailinson seconded that point. Hospital personnel are not trained to make probable cause determinations and they are not law enforcement.



“I think it does put the medical provider in an awkward position to say the least,” Bailinson said.



Under no legal obligations to report the discovery of a contraband substance, and restricted by patient confidentiality, the hospital’s options include disposing of the substance quietly with no notification, or turning it over to law enforcement with no information regarding its source.



“Our first priority is to provide medical care,” Bailinson said. “Beyond that you have to be careful about making hospital employees make judgments. Who do you want to make a probable cause judgment?”



Where required by law, there are codified procedures for reporting cases to the appropriate authority. However, as this case has demonstrated, there is no clear-cut procedure for reporting instances involving contraband substances, Tarr said



“You name it there is a whole listing,” Tarr said. “There are things we are required to report and things we are not required to report… It is a matter of conflicting obligations and a little bit of grayness in the law. The law is not very specific on contraband.”



According to Miles Hospital Risk Manager/ Compliance Officer Julie Marsden, state statute is very clear. “The process to report these cases that are mandated is all very well prescribed,” she said. “Elder abuse, child abuse, that is all very clear cut.”



Among the steps that the hospital is taking is convening an in house panel to review the incident with an possibility of developing an appropriate procedure. Tarr said the hospital hopes to work with Drake who suggested such a panel.



Tarr said the hospital works as a partner with area law enforcement. Frequently in cases when a patient is determined to be a danger to himself and others, police are called to the hospital to enforce the peace.



“It is a very important relationship,” Tarr said.



“They have their concerns about confidentiality and HIPA and all that, but obviously I felt differently and I was able to convince an independent fact finder,” Drake said.



Following Crowley’s arrest, Drake said he spent the next weekend reviewing all available literature. Federal and state laws differ slightly on the scope of police authority regarding medical protocols, he said. Federal law authorizes police authority in the event of a crime. State law specifies a crime against the hospital Drake said.



In any event, Drake said his sole interest is not probing private medical issues but protecting the public safety. “If someone is coming in for treatment for heroin that is one thing, but when someone is in a traffic accident, and has drugs on them, that is another,” he said.



Drake pointed out there are reporting mechanisms in place for medical staff members who have reason to believe someone has operated machinery under the influence. For whatever reason, the hospital declined to report this case so Drake followed the legal process.



“The hospital wouldn’t turn it over so I went through the steps to get the information,” he said.



Agreeing HIPA laws are a very real concern, Drake said his unnamed sources are to be commended for their courage in reporting this matter. Heroin is a dangerous drug, he said. If this incident was not reported, what would have kept this person from selling this drug in the community.



“This is a dangerous, dangerous drug,” Drake said. “It is highly addictive. When you start getting heroin in your community, then everything else comes with it, burglary, prostitution, theft.”

In Re: PPA Litigation - A look at HIPAA preemption in NJ

Recently I ran across a NJ decision in the matter of In re: PPA Litigation regarding HIPAA preemption issues. The decision looks at the preemption of NJ law under the Administrative Simplification Section of HIPAA.



The matter involved a motion filed by defendants, the Phenylpropanolamine (PPA) Manufacturers, compellinging ex parte physician interviews and seeking judicial approval of a revised medical authorization. The plaintiff, consumers of PPA, who allege injuries caused from the durg claim that HIPAA preempted the informal standards under a NJ decision, Stempler v. Speidell, 100 N.J. 368 (1985).



The decision can be found here. Here is a short summary and analysis of the decision in the Middlesex County Bar Association's Monthly Newsletter written by Marc D. Goldstone, Esq., Counsel with the law firm of Hoagland, Longo, Moran, Dunst & Doukas, LLP, in New Brunswick, NJ.

OIG Issues Information on Audit of Medicaid Payments for Skilled Professional Medical Personnel Reimbursed

On December 7, 2004, the Office of Audit Services of the OIG issued a final report regarding an audit of West Virginia medicaid payment for skilled professional medical personnel reimbursed at enhanced rates. The review was to determine if the State of West Virginia properly claimed Federal Medicaid reimbursement at the enhanced rate for skilled professional medical personnel.



The West Virginia Bureau for Medical Services (State agency) claimed and was reimbursed the Federal enhanced rate for 38 individuals improperly classified as skilled professional medical personnel. Those individuals did not meet the definition of "skilled professional medical personnel" as defined in the Social Security Act and implementing Medicaid regulation.



As a result, the State agency received Medicaid overpayments for fiscal year 2003 totaling $296,485 for individuals and $2,875 for non-compensation expenditures that did not meet the criteria of skilled professional medical personnel. The OIG recommended that the State agency refund $299,360, and implement procedures to properly classify skilled professional medical personnel. The Centers for Medicare and Medicaid Services and State agency generally agreed with our findings and recommendations. However, the State agency reclassified 11 individuals who were claimed and reimbursed at the Federal enhanced rate for skille! d professional medical personnel as Medicaid Management Information System operations personnel in order to retain the Federal enhanced rate.



You can review a full copy of the report here.

Opinion by WV Supreme Court in Boggs v. Camden Clark Memorial Hospital

The West Virginia Supreme Court of Appeals issued a decision in the Boggs v. Camden Clark case which I orginally reported on back in an October 2004 blog post. As you will recall, this was the first case to be heard by the Court challenging several medical liability reform provisions enacted by the West Virginia Legislature in recent years.



The case involved a plaintiff whose suit was dismissed by a Circuit Court Judge in Wood County when the plaintiff's counsel failed to provide a signed certificate of merit statement from a physician and failed to serve the notice of claim by certified mail. Both the signed certificate of merit and the requirment that the notice be sent by certified mail were requirements put into law under HB 601 which passed on December 1, 2001 after a 5-week special session dealing specifically with our state's liability insurance crisis. These reforms were then followed in 2003 by the passage of HB 2122 which enacted more significant reforms including lowering the caps on damages.



The 4 to 1 decision (Justice Maynard dissenting) found in favor of the plaintiffs . The decision permitted the plaintiff to amend his complaint, and allowed the reinstated complaint to be governed by the Medical Professional Liability Act II (prior to the reduction of the caps of damages).



To read the opinion issued by the court and the dissent issued by Justice Maynard, you may access the Supreme Court's web page by clicking on the link below.



Following is a AP news article from the Clarleston Gazette regarding the decision:



AP - 12/9

Supreme Court revives malpractice lawsuit



CHARLESTON, W.Va. (AP) -- A paperwork error was not serious enough to force the dismissal of a medical malpractice lawsuit filed by the family of a woman who died at a Parkersburg hospital, the state Supreme Court has ruled.



A Wood County judge had tossed out the June 29, 2003, lawsuit filed by the family of Hilda Boggs because a lawyer gave Camden Clark Memorial Hospital written notice 27 days prior to filing the lawsuit, when state law requires 30 days notice.



The high court ruled 4-1 Wednesday to revive the lawsuit. Writing for the majority, Justice Warren McGraw said the hospital had known since February 2002 that the family intended to file a lawsuit.



Boggs' family can seek $1 million in damages for pain and suffering allegedly caused by her 2001 death at Camden Clark.



If the family had to refile the lawsuit, a state law that took effect July 1, 2003, would have capped the non-economic damages at $500,000.



Boggs, a 50-year-old teacher, was hospitalized after breaking her ankle in a fall at Mineral Wells Elementary School.

HHS to Issue Additional HIPAA Rules

According to an article in the December 14, 2004 report from Health Data Management HHS is set to publish four additional HIPAA Rules in the coming months.



The proposed rules include:

• A rule to set standards for electronic claims attachments, expected in January 2005;
• A rule to enforce HIPAA administrative simplification provisions, set for February 2005;
• A rule to establish a national identifier for health plans, set for April 2005; and
• A rule to regularly revise the HIPAA transactions and codes sets rule, scheduled for June 2005.

These additional regulations will apply to all covered entities who are now complying with the privacy rules which went into effect in 2003. Health care providers will need to monitor these new regulations and the impact they may have on business operations.

Another Blog on HIPAA Issues

I ran across HIPAA Blog covering medical privacy issues involving the Privacy Standards under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and other technology and legal tidbits. I have found the content on the blog excellent and look forward to watching developments posted on this blog. The blog is authored by Jeffrey Drummond of Jackson Walker, LLP in Dallas, TX.

Office of West Virginia Attorney General Announces New Prescription Drug Comparision Web Site

I noticed on a couple of articles, including an article by IHealthBeat.org, that the Office of West Virginia Attorney General has created a prescription drug comparison web site. The Associated Press reported that the Attorney General announced the purpose of the website was to educate consumers and help them reduce drug costs.



According to the Associated Press article, the site includes a list of 24 commonly prescribed drugs and their full retail prices at pharmacies across the state. It also features links to state and federal prescription drug discount programs.



It appears that the information is based upon a survey of various pharmacies around the state of West Virginia. You can view a list of the pharmacies that participated in the survey.



Following is the introductory information posted on the new website:



"According to statistics supplied by the Robert C. Byrd Institute for Health Policy Research, on any given day approximately 425,107 West Virginians (40,637 children, 292,599 non-elderly adults, and 91,871 older adults) go without prescription drug coverage. These citizens have to pay the full retail price for medications out of their own pockets. Additionally, there are many West Virginians who do have health insurance but lack adequate coverage for prescription drugs and must buy them at full price. If you are one of these citizens or a caregiver for one of them, this site may be a useful tool that you will find helpful.



On this site, you will find results of surveys of the prices of commonly prescribed prescription drugs at pharmacies in various counties across the state. To find the prescription drug prices at pharmacies surveyed by our office, use the search option on the top or bottom of this page to get started.



This information will show you the value of comparison-shopping among pharmacies to get the best price for your prescription drugs. Remember, this is a voluntary program and we do not have survey results from every pharmacy in the state. Keep in mind that prices change frequently. Always call or visit your pharmacy to find out the price before buying your medication . . ."