The Readmore 2014

A quick thanks to Elizabeth Damewood-Gaucher author of the Esse Diem Blog for including the Health Care Law Blog on her short list of The Best Blogs You're Not Reading Yet.

I would agree with her list and glad that am a regular reader of 4 out of the 5. All produce great content and cover distinct niche areas. For example, the Rainmaking Blog focuses on the business of law and tells you where to wear you nametag. Lee Kraus' Learning and Technology is the place I first learn about new technology tools that I can use - he is always thinking on the edge of the practical use of technology. Professional Studio 365 focuses on bridging the gap between college and the workforce for those just starting their career. I don't follow the Bad Leader Blog, but what a great name. You've got to love the lead in line, "what we can learn from bad leaders . . ."

"Thanks You" Elizabeth for including us on your list.

These days I don't always get around to religiously reading Blawg Review every week - but I'm glad I took the time to read Ron Coleman's Blawg Review #242 hosted at Likelihood of Confusion.

In the past I often submitted blog posts to the editor - but have gotten out of the habit. Ron's post reminded me of the importance of keeping this blogging carnival tradition alive. I'm glad that Blawg Review has survived the onslaught of the 140 character micro-blawg post (aka legal tweet).

Blawg Review #242 is an eloquent Chanukah edition containing an insightful look at the whys of blogging (especially for those of us who have been doing this for years). Ron provides a glimpse at the current state of law blogging and what the future may hold. He leaves us with this wonderful thought.

"It's the Age of Illumination. A light in every window. A blawg for every shingle. Photons and pixels souring across the either, generating, light yes! Fluorescent, halogen, you name it; sparkling, illuminating all . . . Generating light . . but no heat."

As past host of Blawg Review (Edition #97) and Grand Rounds (Grand Rounds 3.5) I understand the time and effort put into digesting and creatively weaving together the posts from the week. Incredible job Ron - thanks for giving me the pleasure of reading your post.

The Florida Judicial Ethics Advisory Committee issued JEAC Opinion 2009-20 on November 19, 2009, indicating that judges may not add lawyers who may appear before the judge as "friends" on a social networking site, nor may judges permit such lawyers to add the judges as their "friend".

However, the Committee did not entirely ban judges from using social media tools. Judges may post comments and other materials on their social media pages as long as the materials do not otherwise violate the Code of Judicial Ethics.

So, if you are a Florida judge using Facebook the answer to invitations to connect from lawyer colleagues must be "deny." Interesting decision that may have significant impact in the legal community as it relates to the use of social media tools by litigation lawyers.

For more analysis and thoughts on the topic check out the NYT article, For Judges on Facebook, Friendship Has Limits. Additional coverage and posts via the Mike Frisch at Legal Professional Blog, Ashby Jones of WSJ Legal Blog and Dan Macsai of Fast Company. Thanks to Denise Howell for the tweet tip about the recently issued opinion.

This is not the first look by judicial ethics committees at the evolving role of social media relationships between lawyers and judges. As reported by the ABA Journal back in June, a North Carolina judge was publicly reprimanded by the North Carolina Judicial Standards Committee for "friending" a lawyer in a pending case.

Following are the specific questions/answers the Florida Committee addressed in the Opinion.

Q: Whether a judge may post comments and other material on the judge's page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct. ANSWER: Yes.
Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend." ANSWER: No.
Q: Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge's candidacy, may post material on the committee's page on a social networking site, if the publication of the material does not otherwise violate the Code of Judicial Conduct. ANSWER: Yes.
Q: Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge's candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as "fans" or supporters of the judge's candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter. ANSWER: Yes.

UPDATE (12/14/09): Over the weekend Ernie Swenson tweeted (via @LALegalEthics) about a South Carolina Advisory Opinion (Opinion No. 17-2009) issued in October 2009 looking at the propriety of a magistrate judge being a member of a social networking site such as Facebook.

The facts presented to the Advisory Committed on Standards of Judicial Conduct by the magistrate judge were:

A magistrate judge has inquired as to the propriety of being a member of Facebook, a social networking site. The Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.

The South Carolina Advisory Committee reached a less restrictive conclusion than the Florida Judicial Ethics Advisory Committee discussed above. The Committee reasoned that a judge "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Committee continued by stating that "complete separation of a judge from extra-judicial activities is neither possible nor wise" and that a judge should nto become isolated from the community. The Committee found that allowing a magistrate to be a member of a social networking site allows the community to see how the judge commicates and gives the community a better understanding of the judge.

The Committee's conclusion was the following:
A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.

Bob Ambrogi at Legal Blog Watch provides additional analysis and comparison of the South Carolina and Florida opinions. Bob points out a distinction between the two rulings in that one deals with the friending of "attorneys" by judges while the other deals with friending of "non-lawyers" (law enforcement officials and courtroom employees) by judges. He concludes by making this point:

The key difference between the two opinions is in who a judge may friend without calling into question the judge's impartiality and integrity. A judge who friends courtroom employees provides no cause for concern, South Carolina says, but a judge who friends courtroom advocates does, Florida finds.

The AMANews reports that the Michigan Supreme Court is examining whether the Health Insurance Portability and Accountability Act of 1996 (HIPAA) preempts state law to allow a defendant physician in a medical liability case to interview the plaintiff/patient's other treating physicians.

The history and docket information on the case before the Michigan Supreme Court, Andrea L. Holman v. Mark Rasak, SCt Case Number 137993, can be found via search here. Oral arguments were held on November 3, 2009. The Michigan Supreme Court provides a background summary of the case along with links to the briefs filed by the parties, including Amicus Curiae Briefs filed by the Michigan Association for Justice, Michigan Defense Trial Counsel, Michigan Health and Hospital Association, Michigan State Medical Society and ProAssurance Casualty Company and American Physicians Assurance Corporation.

The case involves a defendant physician who sought to interview the treating physicians, but the plaintiff/patient refused to waive her confidentiality rights under HIPAA. Plaintiff signed a HIPAA Authorization releasing the medical records but refused to provide a release for "oral communications." Defendant physician then sought a protective order to permit the ex parte interviews of the treating physicians but the circuit court denied the motion.

The circuit court concluded that the HIPAA provisions relative to the protective order only pertain to documentary evidence and that HIPAA does not authorize ex parte oral interviews.

On appeal the State of Michigan Court of Appeals in Andrea L. Holman v. Mark Rasak, D.O. ruling on November 18, 2008, reversed the circuit court's order denying the defendant physician's motion for a protective order to allow him to conduct ex parte interviews with the plaintiff/patient's treating physicians. The court held that HIPAA supersedes Michigan law to the extent that its protections and requirements are more stringent than those provided by stat law. The court held that the defendants may conduct an ex parte oral interview if a qualified protective order, consistent with 45 CFR 164.512(e)(1), is first put in place.

This will be an interesting ruling to watch. Stay tuned!

iHealthBeat reports on the release of a new report prepared by CCRC Actuaries for the West Virginia Health Care Authority.

The full report is available via the West Virginians for Affordable Health Care website and is titled, Health Care Financing in the State of West Virginia: An analysis and Projection of the Current System and Potential Transformations, August 2009.

According to the articles, the report indicates that the adoption of health information technology (HIT) and implementation of centralized medical care through medical home concepts could save West Virginia's health care system more than $1.1B in 2014. The estimates in the report used insurance claims data from more that 800,000 West Virginia residents, including data from Medicaid and Mountain State Blue Cross Blue Shield.

More details in the AP article by Tom Breen from the Charleston Gazette and Washington Post, Report: Health strategy could save W.Va. $1B.

The Washington Post article indicates:

. . . In the case of electronic prescriptions, the report estimates an overall savings of $164 million in 2014, including nearly $51 million in savings to private insurers and $42 million in savings to policyholders. . .

. . . The report estimates that a statewide rollout of medical homes would cost about $45 million up front and incur ongoing costs of about $368 million . . .

. . . Estimates suggest that about nine in 10 health care offices still keep everything in paper. As the new report says, up front costs for physicians run from $25,000 to $45,000 and have annual costs thereafter of between $2,000 and $9,000, steep amounts for small practices . . .

UPDATE: Thanks to a reader comment - you can now read the full report. The report is titled, Health Care Financing in the State of West Virginia: An analysis and Projection of the Current System and Potential Transformations, August 2009.

Following is the Executive Summary of the report which contains some very interesting statistics on the state of health care in West Virginia.


Executive Summary

• A cohort model was developed to simulate health care eligibility, utilization and insurance availability of the projected 1,828,538 West Virginians in 2009.
• The model utilizes 8,640 cohorts to represent current insured status, health care utilization, age, gender, and household income.
• The projected average age in 2009 is 40.2 years.
  
• West Virginia is projected to have a population of 1,806,545 in 2019 and the average age is projected to increase to 42.2 years.
• The number of commercially insureds is 757,884 in 2009.
• The number of non-Medicare PEIA insureds is 175,324 in 2009.
• The number of non-dual eligible Medicaid insureds is 321,113 in 2009.
• The number of dual eligible Medicaid/Medicare insureds is 57,118 in 2009.
• The number of Medicare eligible PEIA insureds is 37,784 in 2009.
• The number of other Medicare insureds is 168,571 in 2009.
• The number of West Virginia CHIP insureds is 24,480 in 2009.
• The number of uninsured West Virginians is 286,264 in 2009.
• Health care costs can be defined as charges or as allowed charges. In terms of allowed charges, projected West Virginia expenditures total $13.1 billion in 2009.
• Allowed charges are projected to grow to $24.4 billion in 2019.
• In 2009, the uninsured population is projected to incur $3.2 billion in allowed charges, resulting in bad debt and charity care of almost $900 million.
• Initiative I, Adult Medicaid Expansion, is projected to cost the State of West Virginia $56.8 million and the Federal Government $162.0 million in 2014, while overall health care expenditures will decrease $611.5 million. Low income residents see the majority of the savings, spending $591.5 million less on health care.
• Initiative II, Adult Medicaid Expansion Combined with an Insurance Mandate for Employers and Individuals, is projected to cost the State of West Virginia $56.8 million in higher Medicaid expenditures and $1,004.3 million in insurance premium subsidy. The initiative will cost the Federal Government $162.0 million in 2014, while overall health care expenditures will decrease $2,176.0 million. Low income residents see the majority of the savings, spending $2,212.8 million less on health care.
• Initiative III, Adult Medicaid Expansion combined with an Insurance Mandate for Individuals, is projected to cost the State of West Virginia $56.8 million, $983.4 million in insurance premium subsidy. The initiative will cost the Federal Government $162.0 million in 2014, while overall health care expenditures will decrease $1,634.7 million. Low income residents see the majority of the savings, spending $1,656.2 million less on health care.
• Initiative IV, Medical Home, is projected to save the State of West Virginia $57.3 million in claim expenditures and the Federal Government $199.3 million in 2014, and overall health care expenditures will decrease $642.6 million. Low income residents and insurance companies see the majority of the savings, spending $170.6 million and $173.2 million less on health care, respectively. This initiative requires $45 million of initial costs and a total of $368.2 million of ongoing physician reimbursement per year.
• Initiative V, e-Prescribing, is projected to save the State of West Virginia $16.0 million in claim expenditures and the Federal Government $53.8 million in 2014, and overall health care expenditures will decrease $164.0 million. Low income residents and insurance companies see the majority of the savings, spending $41.9 million and $45.6 million less on health care, respectively. The cost of implementing e-prescribing has not been projected.
• Initiative VI, Electronic Medical Records, is projected to save the State of West Virginia $28.3 million and the Federal Government $98.5 million in 2014, and overall health care expenditures will decrease $317.6 million. Low income residents and insurance companies see the majority of the savings, spending $84.3 million and $85.6 million less on health care, respectively. This initiative requires around $25,000 to $45,000 of initial costs and an annual cost of $3,000 to $9,000 per provider. However, these cost estimates appear to be declining over time.
  

Over the next couple of months the Federal Trade Commission (FTC) will be hosting the Exploring Privacy: A Roundtable Services.

The roundtable discussions are day-long public roundtable discussions to explore the privacy challenges posed by the vast array of 21st century technology and business practices that collect and use consumer data.

The FTC indicates that the "roundtable discussions will cover topics including social networking, cloud computing, online behavioral advertising, mobile marketing, and the collection and use of information by retailers, data brokers, third-party applications, and other diverse businesses. The goal of the roundtables is to determine how best to protect consumer privacy while supporting beneficial uses of the information and technological innovation."

More information can be obtained on the FTC's Exploring Privacy website, including the dates and locations of the upcoming roundtable events in Berkeley, CA and Washington, DC, submitted public comments and other information.

The first roundtable was held this week in Washington, DC. Details of the event are available on the website including two interesting charts -- Data flow chart (personal data ecosystem) and Data flow charts (medical, social networking, mobile, behavioral advertising, and retail loyalty card).

I love the creative and mind opening nature of Twitter tweets. Simple 140 character thoughts, questions, queries, etc.

As a lawyer who deals with pages, reams, volumes, boxes, rooms of written information on a daily basis I'm often amazed (and pleased) by the depth of concepts that can be expressed through 140 characters.

Example from today, @SusannahFox's tweet:

@SusannahFox What if, instead of a chief #privacy officer, ONC changed the conversation and appointed a chief data rights officer?

Susannah gets my "tweet of the day" award.