Doggone It! Blawg Review #19 Is Now Up at Patent Baristas

Doggone It . . . Blawg Review has done it again!

Blawg Review #19 is now up at Patent Baristas. Recently I started following Blawg Review as a way to stay up on many of the law related blogs and see what other blogging attorneys are doing in the industry.

I recently signed up to host a future volume of the Blawg Review and look forward to seeing the continuing stream of creative lawyers exploring the electronic stacks for interesting and insighful blog topics.

I also want to thank the attorneys at Patent Baristas for mentioning my Health Care Blog Law and an IT law firm blawg written by a member of my law firm's IT department called "Law Firm IT: The view from the server room."

Stephen and Karyln if you are ever heading up along the Ohio River be sure to stop by my favorite Barista at Baristas in my hometown of New Martinsville, West Virginia. Ask for Jeff or Jill and tell them Bob sent you for a mocha crush or better yet head on down to the pub. Tell'em to put it on my tab.

Note: For inquiring minds, check out the NYT review of Baristas.

Michigan Medical Malpractice: Giving back?

A recent post from the Michigan Medical Malpractice Blog prompted me to consider how West Virginia hospitals might respond to a similar multi million gift offer from one or more of the many prominent West Virginia plaintiff's lawyer. What response would west virginia physicians take after having gone through a number of years of medical malpractice crisis, tort reform discussions and an intense debate about the impact litigation has on access to and quality of health care in West Virginia. Also, would there be any backlash from the medical staff of the particular hospital who accepts such a donation?

I can see it now "___________ (add your favorite West Virginia medical malpractice lawyer) Tower" at ____________ (add your favorite West Virginia hospital).

Other comments: Michigan Medical Malpractice, GruntDoc and Overlawyered.

Health Care Blog Law to Host Febuary 13 Blawg Review

I've signed up to host the Febuary 13, 2006 edition of the Blawg Review. You ask -- what's Blawg Review? Well in simple terms it's blawgers expanding the knowledge of what information is available for lawyers via blogs. For a better understanding of what Blawg Review offers check this out.



For those in the health and medical fields you might want to check out the archive and upcoming editions of Grand Rounds, a weekly review of medical and health care weblogs. If you are up to it you might want to host an edition of Grand Rounds.

Pennsylvania Federal District Court Finds No HIPAA Cause of Action in Employment Decision

The United States District Court for the Eastern District of Pennsylvania issued a decision in the matter of Rigaud v. Garofalo, E.D. on May 2, 2005, finding that HIPAA did not create a seperate cause of action and the action did not support federal subject matter jurisdiction for the employment claim.



The discharged employee alleged that the employer improperly utilized PHI to make an employment decision in violation of HIPAA.



The court stated the following:



While the Third Circuit has not specifically addressed the issue whether there is an express or implied private right of action under HIPAA, several other federal courts have held that there is no such right. See O’Donnell v. Blue Cross Blue Shield of Wyoming, 173 F. Supp. 2d 1176, 1179-80 (D.C. Wyo. 2001); Brock v. Provident Am. Ins. Co., 144 F. Supp. 2d 652, 657 (N.D. Tex. 2001); Means v. Indep. Life and Accident Insurance Co., 963 F. Supp. 1131, 1135 (M.D. Ala. 1997); Wright v. Combined Insurance Company of Am., 959 F. Supp. 356, 362-63 (N.D. Miss. 1997). HIPAA’s Privacy Rule itself provides specific enforcement mechanisms for aggrieved parties. See 145 C.F.R. § 160.306 (stating an aggrieved party may complain to the Secretary and that the Secretary may investigate the complaints filed under the Section). The Privacy Rule also provides an administrative process by which the Secretary may investigate and impose civil monetary penalties for a failure to comply with the Privacy Rule. See 45 C.F.R. §§ 160.500 - 160.570. Based on HIPAA’s failure to provide for a private federal remedy and the absence of any legislative intent to create a private right of action, this Court concludes that it lacks subject matter jurisdiction over the instant matter.



Even if the Court construed HIPAA to create a private right of action, Plaintiff would be barred because she failed to exhaust her administrative remedies. HIPAA expressly provides defendants a right to notice and a hearing before an Administrative Law Judge, and the opportunity voluntarily to cooperate with the Secretary to resolve the matter through informal means. See 45 C.F.R. §§ 160.500 - 160.570. Moreover, the Privacy Rule under HIPAA provides an explicit exception for disclosures made in accordance with the laws relating to workers’ compensation. See 45 C.F.R. § 164.512(l) (permitting the disclosure of health information made for workers’ compensation purposes without an individual’s authorization).



Under Pennsylvania’s Worker’s Compensation Act, a healthcare provider who treats an injured employee is required to report to the employer the employee’s history, diagnosis, treatment, prognosis and physical findings. See 77 P.S. § 531. A provider has a continuing obligation to supplement its report as long as treatment continues. See id. Thus, even accepting Plaintiff’s

allegations that Dr. Heebner and/or Dr. Nicholson contacted her former employer regarding the

altered prescription as true, the doctors would not have violated HIPAA.



Additionally, HIPAA provides that a covered entity may use or disclose protected health information, provided that the individual is informed in advance of the use or disclosure and has

the opportunity to agree to or prohibit or restrict the use or disclosure of the information. See 45

C.F.R. § 164.510. At each visit, Plaintiff signed a consent form specifically authorizing the

release to Suburban Woods of all information relating to her treatment. See Defendants’ Motion

to Dismiss at Exhibit B. Accordingly, Plaintiff’s claim in Count I for a violation of HIPAA’s

Privacy Rule will be dismissed.

Pittsnogled

USA Today highlights West Virginia's newest living sports legend and first sports figure in West Virginia's history to have etymologists turning him into a verb -- you've just been pittsnogled. I don't recall anyone saying you've been Jerry Wested.

Direct link to the USA Today article.

Tags: WV, West Virginia, Mountaineers, Pittsnogle, Pittsnogled, Jerry West

Some Question Third Year of Law School

Interesting AP article today on the value of the third year of law school. It discusses the motivations of keeping student an extra year -- including increased revenue and employment of law faculty.



My experience with new lawyers coming out of school is that there needs to be an increase in the practical education of lawyers, similar to internships and residency programs.

CMS Annouces Rate Increase for Inpatient Stays in Acute Care Hospitals

Centers for Medicare & Medicaid (CMS) has announced that "acute care hospitals that report selected quality data will receive a 3.7 percent increase in payment rates for inpatient services under a final rule issued today by the Centers for Medicare & Medicaid Services (CMS)."



Also, the final rule reduces the outlier threshold to $23,600 from $25,800 in 2005, which will impact hospital's calculation of what extra payments might be warranted when the costs exceed the Diagnosis Related Groups (DRG) payment.



The CMS press release also states that the final rule will contain "important changes to the Diagnosis Related Groups (DRGs) which serve as the basis for the payment rates under IPPS, particularly improvements in accuracy of cardiac DRGs; revision of the postacute care transfer policy; changes to provisions affecting Critical Access Hospitals (CAHs); and revised policies for direct and indirect graduate medical education (GME).



The final rule will appear in the August 12, 2005 Federal Register. The new policies and payment rates will become effective October 1, 2005.

Traffic Court Map Googling

A great example showing the value of having wireless access and Google maps. Remember this post, it might save you some $$ the next time you are in traffic court. When I saw the following Google map story posted by Ernie Swenson and Tom Mighell I just couldn't resist adding a comment.

I'm constantly fascinated by the Google map feature including the ability to flip between maps and satellite images along with combining the two into "hybrid maps". As you can see I like to use the feature to check out the greatest golf courses, such as Pine Valley Golf Course. I also love the feature that allow you to move the map by dragging the image.

If you are interested in maps I would also check out the block viewing feature of the A9 Beta maps section.

National Network of Electronic Health Records

Are the benefits from a national network of electronic health records worth $200 Billion?

UPDATE: For comparison purposes of how much $200 Billion is see this post at Hospital Impact.

According to a article citing a research study funded by the Commonwealth Fund and the Harvard Interfaculty Program for Health Systems Improvement the estimated coast would be $156 billion to build the system and $48 billion annually to run it.

Dr. David Brailer, National Healthcare IT Coordinator, who is directing the federal government's efforts to improve health care technology believes the estimates are high. The article states the following:

"We know it's in the billions of dollars, perhaps in the tens of billions of dollars, and possibly even the hundreds of billions," Brailer said. "But the principle question is not how much it is. It's how do we create incentives to involve the private sector and prevent the federal government from financing it all. We want it to be market-driven."

Brailer noted that the researchers relied on expert estimates — not primary data.

He estimated that the current spending throughout the federal government on health information networks totals about $4 billion a year. He believes the estimate of $156 billion in startup costs and $48 billion in operating costs to be on the high end of what the system would actually total.

Thanks to the HIPAA Blog for pointing out this article.