The Readmore 2014

Will You Engage with Grace this Thanksgiving weekend? I hope so.

For the third year running I am participating in the Thanksgiving holiday Engage with Grace Blog Rally. A viral effort to communicate the importance of having a conversation with your family and loved ones around end of life care wishes. Would you prefer to die in a hospital, or at home? Can your family correctly describe how you would want to be treated in the case of a terminal illness or sudden traumatic accident? Does your family know where you keep your living will and advanced directive?

At the heart of Engage With Grace are five questions designed to get the conversation about end-of-life started. They’re not easy questions, but they are important. The key is having the conversation before it’s too late. Throughout the year I continue to promote the Engage with Grace effort (and so can you) by using the One Slide (see the slide below) at the end of my power point presentations.

So in the spirit of the upcoming Thanksgiving weekend, take time after your dinner, turn off the TV, and take time with your family and friends to engage in the Engage with Grace conversation. 

Thanks to Alexandra Drane, Paul Levy, and many other health care bloggers and professionals for continuing to inspire and share the Engage with Grace message. Learn more about Engage with Grace and the One Slide Project at http://www.engagewithgrace.org.


Some other resources you may want to read and explore:

• Atul Gawande's thought provoking piece in the New Yorker, Letting Go: What should medicine do when it can't save your life? 

•  Alexandra Drane sharing the concept behind Engage with Grace at this year's TEDMED event. Read the full text of her presentation. 

• CNN article, At Thanksgiving, the hardest conversation which features a video interview with Alexandra Drane and good advice from  Jeffrey Asher, an elder-care attorney with Eaton & Van Winkle LLP in New York on how to get the end of life care conversation started. 

•  My 2008 Engage with Grace Blog post where I shared how Alexandra Drane's talk at the 2008 Health 2.0 Conference personally touched me because of my experience as a young 12 year old boy who lost his mother to cancer who was allowed to die at home surrounded by her husband and family.

• For my West Virginia readers who want to learn more about end of life care. Check out the resources provided by the West Virginia Center for End of Life Care. There is also valuable information for health care professionals. You can find forms for the standard West Virginia Living Will and Medical Power of Attorney. The site also includes information, FAQs, list of West Virginia palliative/hospice providers and other resources. 

Today the American Medical Association announced that it has adopted and issued a new policy offering guidance to physicians on the use of social media. The new policy focuses on helping physicians to "maintain a positive online presence and preserve the integrity of the patient-physician relationship."

The press release indicates that the policy encourages physicians to:

• Use privacy settings to safeguard personal information and content to the fullest extent possible on social networking sites.
• Routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and content posted about them by others, is accurate and appropriate.
• Maintain appropriate boundaries of the patient-physician relationship when interacting with patients online and ensure patient privacy and confidentiality is maintained.
• Consider separating personal and professional content online.
• Recognize that actions online and content posted can negatively affect their reputations among patients and colleagues, and may even have consequences for their medical careers.

UPDATE (11/10/10): Below is a copy of the complete AMA Policy on Professionalism in the Use of Social Media that Jane Sarasohn-Kahn obtained from Katherine Hatwell, AMA Media Relations.

Out of Connecticut comes an interesting case involving the use of social media in the workplace and its collision with employee protected concerted activity and employee freedom to associate without fear of employer retaliation under the National Labor Relations Act. The New York Times article, Company Accused of Firing Over Facebook Post, provides good background and details of the facts involved in the case.

American Medical Response of Connecticut, Inc. and International Brotherhood of Teamsters, Local 443, Case No. 34-CA-12576 (NRLB - Region 34), involves a complaint filed against American Medical Response for firing an emergency medical technician for among other things violating the company's policy of negatively depicting the company on Facebook or other social media sites. American Medical Response had denied the labor board's allegations and claims that the employee was discharged on various other grounds. The complaint contains the full language of the employer social media policies involved in the matter.

For those unfamiliar with the National Labor Relations Act, "protected concerted activity" is an employee right under the National Labor Relations Act that protects employees from employer retaliation for discussing working conditions. The National Labor Relations Act provides employees the right to associate together to improve working conditions, self organize, assist labor organizations and bargain collectively. The Act applies to activities by union and non-union employees.

This will be a fascinating case to watch to see how the new world of social media communication, connection, and association will be applied in the context of existing employee rights under the National Labor Relations Act. Similar protections may also be provided to employees who report issues to the Occupational Safety and Health Administration.

Employers who have implemented social media policies that restrict the rights of employees to utilize social media tools and website should review their policies to assess whether or not the policy unnecessarily restricts the rights of employees to associate and discuss their rights to discuss union related issues, wages, working conditions, and other rights protected by the Act.

The U.S. Department of Health and Human Services, Office of Inspector General (OIG) has issued a resource and educational guide for new physicians to help them better understand the key Federal fraud and abuse laws.

As a health care attorney who often deals with physicians on fraud and abuse related matters, I applaud the OIG's effort to provide educational information to help raise the level of understanding on these issues and increase the transparency of these federal laws. This guide won't just be useful for "new" physician but for all physicians to gain a better understanding of the very complex legal/regulatory structure of fraud and abuse laws in the United States.

The new OIG document is titled, "Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse." The physician education roadmap document summarized the five main Federal fraud and abuse laws, including the False Claims Act, the Anti-Kickback Statute, the Stark Law, the Exclusion Statute, and the Civil Monetary Penalties Law. The roadmap document provides tips to physicians on how they should comply with these laws in their relationships with payers (like the Medicare and Medicaid programs), relationships with vendors (like drug, biologic, and medical device companies), and relationships with fellow providers (like hospitals, nursing homes, and physician colleagues).

The roadmap guide was developed as a result of a survey conducted by OIG of medical school deans and designated institutional officials at institutions that sponsor residencies and fellowships to learn what types of instruction medical students, residents, and fellows receive on Medicare and Medicaid fraud, waste, and abuse. Nearly all respondents (92% of deans and 90% of designated institutional officials) reported they would like OIG to provide educational materials they can use. The complete survey, "Medicare and Medicaid Fraud and Abuse Training in Medical Education," was recently issued in October, 2010.

You can view online or download a PDF version of the roadmap guidance materials. I plan to include a copy of this as a part of my hand out materials when I talk to physicians and other health care providers on fraud and abuse issues.

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.

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)!

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.