WV Medicaid Offering Cash Incentive Program to New ePrescribers

The West Virginia Regional Health Information Technology Extension Center (WVRHITEC) announced this week that West Virginia's Medicaid Program is now offering cash incentives to health care providers who become a part of a new e-prescribing system.

WVeScript, is a new web-based ePrescribing tool implemented by the West Virginia Bureau for Medical Services (BMS) and provided to all Medicaid program prescribers and pharmacies. It is located on the BMS MediWeb Clinical Web Portal. This tool can be used to ePrescribe for all patients, not just those with Medicaid insurance. FAQs with more information about the WVeScript and MediWeb Clinical Web Portal.

The announcement by WVRHITEC also indicates that as an added incentive, West Virginia Medicaid will provide cash assistance in the amount of $1,000.00 for the purchase of a computer or to pay toward web access when a provider enrolls in the ePrescribing program at www.WVeScript.com. At the end of March 31, 2011, if a provider has electronically prescribed at least 70% of his or her prescriptions for Medicaid members, she or he will receive an additional $1,000.00. In addition, training is available, and a provider can earn two CME credits for completing the on-line web-based training. The incentives are available to a limited number of providers, so please sign up today.

Educating Physicians About Social Media

Great insight and advice from Bryan Vartabedian, M.D., the author of 33 Charts on "How to Speak to Physicians About Social Media."

Dr. V was responding to a request from Susannah Fox, Associate Director - Digital Strategy at Pew Internet & American Life Project, who will be speaking on a panel at the American College of Surgeons 96th Annual Clinical Congress next month. The session title is To Tweet or Become Extinct?: Why Surgeons Need to Understand Social Networking.

As someone who regularly speaks to groups of physicians I enjoy the opportunity every time (as long as I start off by saying I'm a health care defense attorney). As a group they are always engaging and inquisitive which leads to great discussions. As Dr. V points out the legal aspects and concerns over privacy and liability will be a topic not far below the surface. Like lawyers surgeons are trained to be skeptical technicians. I see that there is a lawyer, Rebekah A. Z. Monson, who is on the panel to cover the dos and don'ts. However, I hope you (Susannah) will weave into the legal discussion the consumer health and e-patient issues that often clash with the legal implications. Don't let the legal issues stand alone.

Dr. V's advice of ". . . discussion of patient-specific issues in public forums is off limits; discussion of patient non-specific issues is encouraged. Any attempt at patient-initiated discussion of specific medical issues immediately goes offline and onto the EMR for issues of record, liability and safety . . ." is excellent. I also like Dr. V's ethical dilemma recommendation for a possible case study approach during the discussion. One example you may want to explore using to address the clash between physician as authoritarian (transparency issue that Dr. V discusses) vs. patient as engaged consumer (e-patient) is the story of Johathan Zittrain's crowdsourcing his diagnosis. His story presents many great angles on social media's use in the health care environment by e-patients.

As for the legal implications of social media if you want to bone up on the topic take a look at the article I co-authored for AHLA earlier this year on the legal implications of health care social media, Risky Business: Treating Tweeting the Symptoms of Social Media.

Good luck Susannah and break a leg (no worries - there will be plenty of docs around to take care of you)!

HIPAA Prosecution: Former UPMC Employee Indicted

The United States Attorney's Office Western District of Pennsylvania issued a press release providing details of their first HIPAA privacy prosecution. The federal grand jury in Pittsburgh issued a 14 count indicted naming Paul C. Pepala.

The press release provides the following details:

According to the indictment, in February 2008, Pepala, then employed at UPMC Shadyside Hospital, disclosed to others names, birth dates and Social Security numbers of patients for personal gain, in violation of federal HIPAA laws, and disclosed Social Security numbers to other persons without their authorization. This information was used to file false tax returns in 2008. Pepala was also charged with violating the Social Security Act by disclosing Social Security numbers in violation of federal law.

The law provides for a maximum total sentence of 80 years in prison, a fine of $4,730,000, or both. Under the Federal Sentencing Guidelines, the actual sentence imposed would be based upon the seriousness of the offenses and the prior criminal history, if any, of the defendant.

Agents of the United States Postal Inspection Service, Internal Revenue Service and United States Secret Service conducted the investigation leading to the indictment in this case.

FSB: Best Lawyers in America 2011

This past week I received notice that I was again selected by my peers for inclusion in The Best Lawyers in America® 2011 in the field of "Health Care Law".

In all, nine lawyers from Flaherty Sensabaugh Bonasso PLLC were selected for inclusion in The Best Lawyers in America® 2011. Congratulations to my partners, David Givens and Mark Robinson, who were selected for the first time this year in the category of "Medical Malpractice".

Below is a list of all the 2011 FSB honorees:

• Mike Bonasso - Commercial Litigation
• Stephen Brooks - Medical Malpractice Law and Personal Injury Litigation
• Bob Coffield - Health Care Law
• Tom Flaherty - Personal Injury Litigation
• David Givens - Medical Malpractice Law
• Ted Martin - Medical Malpractice Law
• Mark Robinson - Medical Malpractice Law
• Don Sensabaugh - Medical Malpractice Law and Personal Injury Litigation
• Jeff Wakefield - Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice

Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."

CMS Awards WV Medicaid $945K Federal Matching Funds for EHR Incentive Programs

iHealthBeat reports that West Virginia Medicaid along with five other states will receive federal matching funds from the Centers for Medicare and Medicaid (CMS)to help implement electronic health record (EHR) incentive programs.

West Virginia Medicaid will receive $945,000 in federal matching funds. The CMS press release indicates that West Virginia will use the funds for planning activities that include conducting a comprehensive analysis to determine the current status of HIT activities in the state. The funds will be used to gather information on issues such as existing barriers to its use of EHRs, provider eligibility for EHR incentive payments, and the creation of a State Medicaid HIT Plan.

The CMS press release states:

WEST VIRGINIA TO RECEIVE FEDERAL MATCHING FUNDS FOR ELECTRONIC HEALTH RECORD INCENTIVES PROGRAM

In another key step to further states’ role in developing a robust U.S. health information technology (HIT) infrastructure, the Centers for Medicare & Medicaid Services (CMS) announced today that West Virginia’s Medicaid program will receive federal matching funds for state planning activities necessary to implement the electronic health record (EHR) incentive program established by the American Recovery and Reinvestment Act of 2009 (Recovery Act). West Virginia will receive approximately $945,000 in federal matching funds.

EHRs will improve the quality of health care for the citizens of West Virginia and make their care more efficient. The records make it easier for the many providers who may be treating a Medicaid patient to coordinate care. Additionally, EHRs make it easier for patients to access the information they need to make decisions about their health care.

The Recovery Act provides a 90 percent federal match for state planning activities to administer the incentive payments to Medicaid providers, to ensure their proper payments through audits and to participate in statewide efforts to promote interoperability and meaningful use of EHR technology statewide and, eventually, across the nation.

“We congratulate West Virginia for qualifying for these federal matching funds to assist its plan for implementing the Recovery Act’s EHR incentive program,” said Cindy Mann, director of the Center for Medicaid and State Operations at CMS. “Meaningful and interoperable use of EHRs in Medicaid will increase health care efficiency, reduce medical errors and improve quality-outcomes and patient satisfaction within and across the states.”

West Virginia will use its federal matching funds for planning activities that include conducting a comprehensive analysis to determine the current status of HIT activities in the state. As part of that process, West Virginia will gather information on issues such as existing barriers to its use of EHRs, provider eligibility for EHR incentive payments, and the creation of a State Medicaid HIT Plan, which will define the state’s vision for its long-term HIT use.

WVHCA: Proposed CON Standards for Megavoltage Radiation Therapy Services/Units

The West Virginia Health Care Authority has issued a Notice of Public Comment Period on a new Proposed Certificate of Need Standard for Megavoltage Radiation Therapy Services/Unit.

Written comments on the proposed Certificate of Need Standard must be filed with the Authority on or before July 30, 2010. Written comments should be directed to Timothy E. Adkins, Director of Certificate of Need Division.

WVHCA: Proposed Amendment to West Virginia CON Law Defintion of "Private Office Practice"

On June 15, 2010, the West Virginia Health Care Authority filed a Notice of a Comment Period on a Proposed Rule with the West Virginia Secretary of State amending West Virginia CSR 65-7, Certificate of Need Rule.

According to the Summary and Statement of Circumstances filed with the Proposed Rule the "amendment clarifies the definition of "private office practice" for purposes of administering the Certificate of Need Program. Those entities meeting this criteria may be eligible for an exemption from Certificate of Need review pursuant to West Virginia Code 16-2D-R(a)."

Written comments on the Proposed Rule are due on or before July 16, 2010.

What Health Care Employers Need to Know about the West Virginia Patient Safety Act

Ryan Brown, a health care attorney at Flaherty Sensabaugh Bonasso PLLC who specializes in medical malpractice defense, health care regulatory work and health care related employment issues wrote this summary of the West Virginia Patient Safety Act.

In 2001, the West Virginia Legislature passed the Patient Safety Act (“PSA”), W.Va. Code § 16-39-1 et seq. The purpose of the PSA was to provide an avenue for health care workers to report instances of waste or wrongdoing without the fear of retaliatory or discriminatory treatment by their employers through termination, demotion, reduction of time, lost wage, or lost benefits. The PSA requires the identity of a health care worker who reports waste or wrongdoing to a health care entity (e.g., hospital, clinic, nursing facility, etc.) or appropriate governmental authority to remain confidential. Health care entities are also required to post a summary of the important provisions of the PSA on the premises for its employees.

It is important for health care entities to understand that the PSA prohibits retaliation or discrimination against a health care worker who made a good faith report; advocated on behalf of patients, services or conditions of a health care entity; or cooperated in any investigation relating to the care, services or conditions of the health care entity. A health care worker who has been retaliated or discriminated against by his or her employer in violation of the PSA may file a civil suit and recover payment of back wages, costs of the litigation, reasonable attorney fees, and even reinstatement.

Many employers in West Virginia have had experience with the West Virginia Human Rights Act (“WVHRA”), W.Va. Code § 5-11-1 et seq, and its exception to the “at-will” employment doctrine. The WVHRA prohibits discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, disability, and familial status. The WVHRA has been used by former employees as a way to defeat “at-will” employment by alleging that they were wrongfully terminated based on a protected status, rather than for unsatisfactory job performance. Although initially designed to improve the quality of patient care, the PSA has also been used by some former health care employees as a way to get around the concept of “at-will” employment. For example, a discharged health care worker could potentially sue his former employer using the PSA to allege that he was discriminated against after he reported instances of the employer’s waste and wrongdoing.

Health care entities must take special care not only to document the unsatisfactory performance of its employees, but also document and investigate complaints of waste or wrongdoing to shield itself from such PSA lawsuits. These lawsuits can be quite complicated as they encompass elements of both employment litigation and medical professional liability litigation.

ONC Issues Final Rule for EHR Temporary Certification Program

Last Friday the Office of National Coordinator for Health Information Technology (ONC) issued a final rule providing the details on how organizations can be authorized by ONC to test and certify EHR technology. ONC discusses the details the Temporary Certification Program.

Certification is important because the Medicare and Medicaid EHR incentives under HITECH require the use of certificate EHR technology for eligible hospital and providers to recieve payments under the incentive program.

For more information check out the Temporary Certification Program information on the ONC Health IT website, including a link to a complete copy of the Temporary Certification Program Final Rule.

More information from Government Health IT, ONC launches health IT certification program and iHealthBeat, ONC To Start Accepting Bids for Entities to Certify EHR Products.

UPDATE (6/24/2010): The official Federal Register version of the Final Rule is now available: 45 CFR Part 170, Establishment of the Temporary Certification Program for Health Information Technology; Final Rule (75 Fed. Reg. 36158, June 24, 2010). The Final Rule is effective on June 24, 2010.