Legal Disclaimer Your use of this Blog does not create an attorney-client relationship. Your e-mail or comments do not create an attorney-client relationship. We have no duty to keep confidential the information that is submitted to this blog. This blog is not a substitute for, nor does it constitute legal advice. Only an attorney who knows the details of your particular situation and is properly licensed in the applicable state (or states) is able to appropriately and properly address any legal issues you may have.
|
By Robert Hudock, on July 30th, 2009  Print This PostOffice of the National Coordinator (“ONC”) for Health Information Technology health IT policy committee voted on July 16, 2009 to accept itsworkgroup’s matrix of qualifications that will be used to define “meaningful use” of health IT. Compliance with ONC’s definition of “meaningful use” is essential to reimbursement bonuses and avoiding penalties under the American Recovery and Reinvestment Act of 2009 (ARRA). Bonuses will begin in 2011 (maximum bonus payments for the implementation of a qualified EHR can be collected where an EHR is implemented no later 2012) thereafter the amount of bonus payments will be reduced with each subsequent year. Penalties will begin accruing 2017 for Medicare and Medicaid providers who have failed to implement a qualified EHR. A qualified EHR under ARA is essentially an EHR that meets the Government’s tortured definition of meaningful [...]
By Robert Hudock, on July 30th, 2009 Print This PostFTC Announced today –
To assist small businesses and other entities, the Federal Trade Commission staff will redouble its efforts to educate them about compliance with the “Red Flags” Rule and ease compliance by providing additional resources and guidance to clarify whether businesses are covered by the Rule and what they must do to comply. To give creditors and financial institutions more time to review this guidance and develop and implement written Identity Theft Prevention Programs, the FTC will further delay enforcement of the Rule until November 1, [...]
By Robert Hudock, on July 26th, 2009 Print This PostBelow I briefly review New York’s security breach and other relevant privacy/security law provisions which are sometimes not addressed in a corporation’s privacy and security policies (but should be). I have also reference and review New York’s Guidance on business best privacy and security practices. There are three basic areas of inquiry: privacy law pertaining to the protection of confidential information that requires specific actions with respect to specific identifiers (e.g. SSN, DL Number, etc.); obligations of an employer’s to the employer’s employees that include affirmative privacy obligations; and New York’s version of a security breach notification laws currently found in 45 states. New York Consumer Protection Board (“CPB”) is New York’s key agency responsible for protecting the residents of New York by “publicizing unscrupulous and questionable business practices; conducting investigations and hearings; researching issues; developing legislation and creating consumer education programs and materials.” The CPB has released guidance (New York’s Business Guide to Privacy) that provides an excellent summary of New York State privacy and security laws. Most actions brought under the discussed statutes must be brought by the State Attorney General. HIPAA and other Federal Laws (including the new HITECH Act) I have discussed in other blog [...]
By Robert Hudock, on July 22nd, 2009 Print This PostUnder the CAN-SPAM Act of 2003 employers, businesses and other private actors may have standing, if the entity provides access to content on the Internet even where the service is only a proxy and the service does not provide access to the Internet generally. To limit the amount of spam congress passed the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) which established requirements for those who send commercial email. Among other things the CAN-SPAM Act of 2003 specifically prohibits false or misleading header information in an email’s header data including “From,” “To,” and routing information (the originating domain name and email address). Section §7704(a)(1)(C) provides that: “header information shall be considered material misleading if it fails to identify accurately a protected computer used to initiate the message because the person initiating the message knowingly uses another protected computer to relay or retransmit the message for purposes of disguising its origin”. Email Spoofing is one type of activity that may be potentially prohibited under the CAN-Spam [...]
By Mark Lutes, on July 12th, 2009 Print This PostAs the “Three Tenors” (Chairmen Waxman, Miller and Rangel) struggle to finance the access enhancements that are central to the President’s health reform aspirations, the need for meaningful payment reform continues to challenge. This week House Speaker Nancy Pelosi urged the Chairmen to sharpen their pencils in this regard. Moreover, in a letter to the Speaker and Majority Leader Steny Hoyer, the fiscally-conservative “Blue Dog” coalition of House Democrats has now said that the current drafts fail to include sufficient structural reforms likely to succeed in lowering costs and incenting “value” (in purchasing).
These House members would like to see strenuous efforts to capture the savings promised by the literature pointing out the significant disparities in regional health care practice/resource consumption patterns. To that end, the “Blue Dogs” and many analysts are placing a great deal of hope in the ability of payment incentives to trigger the ordering of only appropriate (cost effective) diagnostic tests and pharmaceuticals and the implementation of “evidence based” care paths.
Intuitively there is great merit to the theme. However, testing of the concepts has been limited to date. Therefore, there is yet little science from which to judge the necessary “octane” of the incentives. Moreover, the amount of change to be engendered by Medicare payment reform is unknown—hence some of the enthusiasm for a public plan that might adopt payment methodologies that echo those of a reformed Medicare fee-for-service system thus putting more strength behind the effort the “bend the curve” of growth in health care expenditures. Finally, policy makers do not how much reinforcing discernment should or could be created among beneficiaries particularly during the statistically costly “last year of life.”
While some provider systems appropriately believe they are “ready, willing and able” to operate under new payment methodologies, most are not. Moreover, even provider systems that have a high degree of clinical integration, IT infrastructure and physician leadership, face significant challenges in operating during a transition stage where some payor customers will strongly reward utilization efficiencies and others will retain payment methodologies that continue to implicitly reward providing services without regard to clinical appropriateness. (These providers are likely to capture the empathy of lawyers like me who also are increasingly operated under mixed payment methodologies.)
Health care investors face concomitant uncertainties. How will the companies they are backing fare in an era where providers are incentivized to order fewer tests, labs and scans? Will the target’s product line continue to do well among providers who are scrutinizing costs to earn incentive payments? Similarly, are the company’s products on the short list for comparative effectiveness review and, if so, what are the likely results and how will such review affect provider system choices? Therefore, as we watch the Congress adopt payment policy reform, we open up interesting new forecasting questions with regard to the nature of such reform, its pace and its impacts on market actors.
.
By Robert Hudock, on July 10th, 2009 Print This PostIn Stengart v. Loving Care Agency, Inc. et al. , --- A.2d ----, 2009 WL 1811064 (App. Div. 2009 Docket No. A-3506-08T1, published June 26, 2009), a three judge panel of the New Jersey Appellate Division ruled, despite a written policy to the contrary, an employee had a “reasonable expectation of privacy” in e-mails with her attorney via an employer-owned laptop. The Court remanded the case for a determination of appropriate sanctions, including possible disqualification of the employer's counsel. The policy in question was ambiguous in part because it contained an “occasional use [...]
By Robert Hudock, on July 7th, 2009 Print This PostThe California E-Discovery Act(“the Act”) establishing procedures for a party to obtain electronically stored information (ESI), similar to the Federal Rules of E-Discovery (December, 2006), was signed into law on June 29 by Governor Arnold Schwarzenegger. The Act implements new rules for electronic discovery in California civil cases. The Act tracks the 2006 amendments to the Federal Rules of Civil Procedure. [...]
By Robert Hudock, on July 6th, 2009 Print This PostWith unemployment reaching 10% employers are more at risk then ever from former employees who are let go, regardless of the reason attempt to take punitive action against their former employer. Recent cases highlight actions by former employees which put their former employer at risk through the spoliation of relevant data and/or theft of company trade secrets. Spoliation occurs when a party is aware of pending litigation, or should reasonably be able to anticipate pending litigation, and the party fails to suspend the destruction of documents that may be relevant to anticipated litigation; the party is also required suspend routine document purging (or passive) destruction of data by systems. Accordingly, in anticipation of potential legal issues resulting with from the termination of an employee’s, an employer should specifically define the scope (or absence thereof) of the employee’s right/expectation of privacy when using work owned information systems or computers in a policy or employee handbook. Nat’l Econ. Research Assocs., Inc. v. Evans, 2006 WL 2440008 (Mass. Super. Ct. Aug. 3, 2006)(relating to privilege of attorney-client communication of employee with his/her attorney), see also Sprenger v. The Rector and Board of Visitors of Virginia Tech, 2008 U.S. Dist. LEXIS 47115 (W.D. Va. June 17, 2008)(relating to spousal privilege). Second, the employer should remind the departing employee of the former employee’s duty not to steal company trade secrets and/or other confidential material regardless of the reason. Finally, employer should inform the former employee that he/she should not delete and/or destroy relevant data if he/she anticipates bringing legal [...]
Improve the web with Nofollow Reciprocity. |
Computer Security Law and Guidance
Privacy, Security and E-Discovery Bills
|
Are ONC’s Meaningful Use Requirements Workable?
Office of the National Coordinator (“ONC”) for Health Information Technology health IT policy committee voted on July 16, 2009 to accept itsworkgroup’s matrix of qualifications that will be used to define “meaningful use” of health IT. Compliance with ONC’s definition of “meaningful use” is essential to reimbursement bonuses and avoiding penalties under the American Recovery and Reinvestment Act of 2009 (ARRA). Bonuses will begin in 2011 (maximum bonus payments for the implementation of a qualified EHR can be collected where an EHR is implemented no later 2012) thereafter the amount of bonus payments will be reduced with each subsequent year. Penalties will begin accruing 2017 for Medicare and Medicaid providers who have failed to implement a qualified EHR. A qualified EHR under ARA is essentially an EHR that meets the Government’s tortured definition of meaningful [...]