WVHCA, HCA, Putnam General, LifePoint: News Article Swirl Around Hospital Sale and Putnam Medical Malpractice Lawsuit

The certificates of need involving the approval of the sale of 5 HCA hospitals to LifePoint in West Virginia is getting a lot of press over the last couple of days. Much of the press is linked to the pending medical malpractice lawsuits involving Dr. King and Putnam General Hospital.

The AP seems to make a lot of fuss over the connections between the pending medical malpractice lawsuits and the acquisition/certificates of need approval process. The AP even bring the Senator Frist SEC investigation into the article. I don't see the connection. I guess it might be an attempt to make CON regulatory law reporting more exciting.

HHS Awards Contracts to Advance Nationwide Interoperable HIT

HHS Press Release - October 6, 2005:

The Department of Health and Human Services (HHS) today awarded three contracts totaling $17.5 million to public-private groups that will accelerate the adoption of health information technology (health IT) and the secure portability of health information across the U.S. These groups will form strategic partnerships to develop the building blocks necessary for achieving the President’s goal of widespread adoption of interoperable electronic health records (EHR) within 10 years.

Anonymous Blogger Remains Anonymous

Anonymous blogger remains anonymous!

I haven't read the full decision issued by the Delaware Supreme Court in the matter of John Doe No. 1 v. Patrick Cahill and Julia Cahill, No. 266 (October 5, 2005). You can check out the latest news articles on the decision here. Following is an excerpt from a summary appearing on Yahoo news. The article states:

"In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News."

FRCA, FACTA, GLBA and the California Courts

Craig Williams over at May It Please The Court reports on a recent privacy decision involving what the court refers to as the convergence of the Fair Credit Reporting Act (FCRA) as amended by the Fair and Accurate Credit Transactions Act of 2003(FACTA), Gramm Leach Bliley Act (GLBA) and California's Financial Information Privacy Act.

All of these legislative/regulatory acts were created to protect the treatment of personal consumer information and how such information can and can't be used by financial service businesses. As stated by the court,

"these four legislative enactments generally seek to govern the treatment of personal information albeit to varying degrees. In FCRA, FACTA and GLBA, Congress created a statutory framework that seeks tostrike a balance between providing citizens affordable financial services while protecting them against invasions of privacy and the misuse of personal information."

California's Financial Information Privacy Act was passed to provide the citizens of California with more stringent protections than those provided by FCRA (nka FACTA) and GLBA.

The 9th Circuit previously held that federal laws preempted the more stringent state laws. Craig indicates that the 9th Circuit is unlikely to change its position if California's Attorney General decides to appeal the decision. As I recall one of the the reasons FCRA was amended to the new acronym FACTA was because the federal preemption provisions under FCRA were going to expire.

Check out the press release issued by the American Bankers Association.

HHS Announces Accelerating the Use of E-prescribing and Electronic Health Records

Today HHS announced the new regulations that are intended to support the adoption of e-prescribing and electronic health records. The press release states:

The Centers for Medicare and Medicaid Services (CMS) and the HHS Office of Inspector General (OIG) proposed rules announced today represent a unified effort to advance the goal of improving the health care of Medicare beneficiaries and all Americans through the use of e-prescribing and electronic health records systems.

CMS announced a new regulatory proposal that would create exceptions to the “physician self-referral” law. Currently, physicians in Medicare are prohibited from referring Medicare patients for certain health services to health care entities with which the physician has a financial relationship, unless an exception applies. Health care entities are also not allowed to bill Medicare for services that are furnished as a result of a prohibited referral.

These new proposals would allow hospitals and certain health care organizations to furnish hardware, software, and related training services to physicians for e-prescribing and electronic health records, particularly when the support involves systems that are “interoperable” and thus can exchange information effectively and securely among health care providers.

In a parallel action, the OIG announced proposed safe harbors for arrangements involving the donation of technology for e-prescribing and electronic health records. Arrangements for the provision of items and services that meet the requirements of the safe harbors would be exempt from enforcement action under the Federal anti-kickback statute.

Stay tuned! The proposed rules will be published in the October 5th edition of the Federal Register. Public comments will be accepted for 60 days.

Thanks to the HIPAA Blog for pointing me to the press release.

UPDATE (10/6/05): Today I received notice that the OIG posted a pre-publication copy of the proposed rule for a Safe Harbor for Certain Electronic Prescribing Arrangements Under the Anti-Kickback Statute. The official version is scheduled for publication in the Federal Register on Tuesday, October 11, 2005.

To get to the proposed rule point your browser here: http://www.oig.hhs.gov/authorities/docs/05/100605E-PrescriberuleC.pdf

HIPAA Preemption Decision from the Louisiana Court of Appeals Decision

A State of Louisiana Court of Appeals First Circuit Decision looks at HIPAA preemption involving the state law process for obtaining medical and health records via subpeona under a criminal matter. The September 23, 2005 decision in State of Louisiana v. Virginia Downes, challenged the validity of a district attorney subpoena issued to obtained medical records and looks at whether or not the Administrative Simplification provisions under HIPAA preempt Louisiana's laws related to obtaining a lawful subpeona under La. R.S. 13:3715.1(B). The courts finds that it would not be impossible to comply with both federal (HIPAA) and state law requirements for obtaining records via subpoena, thus, no preemption.

Thanks to Alan Goldberg and the AHLA HIT listserve for the tip on this new decision. While looking for a link to Alan's webpage I also noticed his new blog called HealthLawyer.

Professor Elkins Gets a Mention on BlawgReview

Professor Jim Elkins’ “Strangers to Us All: Lawyers and Poetry” gets a mention on BlawgReview. Professor Elkins is a professor at the West Virginia University’s College of Law.

Dilbert's Look at Work Blogs

Blogging while at work gets a look by Dilbert. Blogging and blog related issues are quickly becoming the latest employment related legal issue - following on the heels of email and internet usage employment policies. If your company hasn't revised your employee handbook to include a blog policy you might want to consider adding a new policy.

Thanks to Scoble for the tip on today's Dilbert.

West Virginia Supreme Court Arguments on Certificate of Need Issues

Health care lawyers in West Virginia will be watching two appeals involving the certificate of need law being argued before the Supreme Court of Appeals of West Virginia this week. The West Virginia Health Care Authority is responsible for hearing and issuing certificate of need decisions to health care providers.

The briefs for the two arguments have now been posted on the Supreme Court of Appeals website and you can watch and hear the arguments via the court's webcast on October 4 & 5.

On October 4, 2005 the Supreme Court will hear the matter of Family Medical Imaging, LLC, et al. v. WV Health Care Authority, et al. This is an appeal from an Order from the Raleigh County Circuit Court upholding the WV Healthcare Authorities decision denying the petitioner's Certificate of Need for the use of an ultrasound machine. The Court affirmed the HCA's denial and the petitioners are seeking a reversal and approval for their application.

The briefs filed in this matter, including an amicus brief filed by the West Virginia Hospital Association and an intervenor brief filed by Raliegh General Hospital, can be found here.

On October 5, 2005, the Supreme Court will hear the matter of Fairmont General Hospital, Inc. v. WV Health Care Authority, et al. AND Fairmont General Hospital, Inc. v. WV Health Care Authority, et al. United Hospital Center, Inc. and West Virginia United Health System, Inc., and the West Virginia Health Care Authority, file separate petitions for appeal which have been consolidated. They appeal the Circuit Court's order reversing the Health Care Authority's decision to grant a certificate of need for the building of a replacement United Hospital eight miles from its present location.

The briefs filed in this matter can be found here.