Amidst the worldwide COVID-19 pandemic, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) is allowing healthcare providers to use technology that is non-HIPPA compliant.

HIPPA is the federal Health Insurance Portability and Accountability Act.  HIPPA regulations protect patients from having their private information disclosed by health care providers, or treated in a manner that puts the information at risk of being disclosed.

On Tuesday, March 17, 2020, the OCR announced, effective immediately, that it will exercise its “enforcement discretion” by not imposing penalties against healthcare providers for HIPAA-violations in certain telehealth circumstances.  Telehealth is the provision of medical services via remote methods, such as telephone or videochat. OCR will not impose penalties for HIPAA violations in the use of telehealth services, but only when used in good faith for treatment or diagnostic purpose. The service does not have to be directly related to COVID-19.  The healthcare provider may use a “non-public facing” (not available for public access) remote communication product if they would like to use audio or video communication technology.

Under the OCR’s notice, popular videochat apps such as the following may be used for telehealth, though they may violate HIPAA rules:

  • Apple FaceTime,
  • Facebook Messenger Video Chat,
  • Google Hangouts video,
  • Skype, or
  • Zoom

However, healthcare providers may not use:

  • Facebook Live
  • Twitch
  • TikTok
  • Or similar video communication apps that are “public facing”

Notwithstanding the relaxed rules, there are several vendors that represent they can provide healthcare video communication products through a HIPPA-compliant business association agreement. Some of these vendors are:

  • Skype for Business/Microsoft Teams
  • Updox
  • VSee
  • Zoom for Healthcare
  • Doxy.me
  • Google G Suite Hangouts Meet
  • Cisco Webex Meetings/Webex Teams
  • Amazon Chime
  • GoToMeeting

Allowing healthcare providers to continue to examine patients during the COVID-19 crisis, while limiting the risks of in-person exposure is a noble goal.  The obvious negative is that many of third-party communication apps, including those referenced by the OCR, pose privacy risks to the patient.  For the vast majority of us, the COVID-19 crisis will be over in due time.  But our personally-identifying information, such as our names, addresses, and social security numbers, is a lot more difficult to change. 

In our opinion, if a healthcare provider intends to utilize a non-HIPPA complaint communication vendor or application, that should be disclosed to the patient and their consent should be obtained – at a minimum. The patient should be informed prior to consenting that using the service may put their private information at risk.  The healthcare provider should take reasonable steps, no matter what particular service is being used, to enable available encryption and privacy protection settings, if available.  HIPAA-complaint vendors and technology should be the clinician’s first choice.

Find the OCR’s Notice here:  https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html

For additional information: https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf

0

heading_departmentEight California hospitals were fined a total of $483,650 for serious issues in patient care, according to a report released Thursday.  The fines, levied by the California Department of Public Health, came after the Department’s investigations discovered non-compliance with licensing requirements which “caused, or was likely to cause, serious injury or death  to patients.” The fines ranged from $47,025 to $86,625 per hospital.

Administrative penalties are issued to hospitals under authority granted by California Health and Safety Code Section 1280.1. Newly adopted regulations allow the Department to assess an administrative penalty for incidents occurring on or after April 1, 2014, against a specified licensee for a deficiency constituting an “immediate jeopardy” violation up to a maximum of $75,000 for the first administrative penalty, up to $100,000 for the second, and up to $125,000 for the third and every subsequent violation within three years.

San Diego’s Vibra Hospital was among those fined.  Vibra was fined $47,025 in connection with a patient’s brain damage and death in 2014, attributed to staff ignoring signs and alarms that should have alerted them that a breathing ventilator had become disconnected, as reported by the San Diego Union Tribune.  A full report of the incident can be found on the Department of Public Health’s website.  The fine was noted as the hospital’s first “immediate jeopardy” administrative penalty since the program began. Vibra was also required to submit a “plan of correction” to California’s health regulators.

Licensing requirements exist to protect us from the increasingly consolidated, powerful, and for-profit medical industry.  As patient-advocates, and members of the community, we applaud these recent regulatory measures by the Department of Public Health.  At the same time, we question whether a $47,025 penalty for a preventable injury that ended a patient’s life sends a strong enough message of the value we place on patient safety.  Ultimately, it is not the amount of a single fine that will keep us safe. Safe care is brought about by long-term attention and support from consumers — and voters — for vigilant oversight of the medical industry.

0

In the spirit of thankfulness and as we approach the full gale of the holiday season, here are some true heroes to keep in mind: family caregivers. Some astounding figures according to AARP (American Association of Retired Persons):

  • 39.8 million Americans – 16.6 % of the population – are giving unpaid care to an adult.
  • If provided by paid workers, this care would cost $470 billion annually.
  • 18% of caregivers take care of two or more adults.
  • 13% of caregivers are assisting a friend or neighbor.
  • 2 million Americans care for their own adult children.
  • 40% of caregivers are men.
  • 7% of caregivers live more than two hours away from the person they help.

Just published for National Family Caregivers Month, November, 2015, here are some tips for respite: http://caregiveraction.org/national-family-caregivers-month.  “Respite” is relief or rest for the caregiver.  Giving a gift of respite to those who care for others is a wonderful way to show them they are appreciated and not forgotten.

Happy and Restful Holidays

0

With the coming of Breast Cancer Awareness Month in October, it’s a good time to talk about charity scams.   Our firm handles fraud actions in the healthcare context, and scams burn us up.    Do some research — know your donation dollars are going to actually support breast cancer research and programs.   As one site put it, “Think Before You Pink.”   This includes not just donating, but purchasing products which purport to give to breast cancer research.

Look for well-established charities, ones that are transparent about how funds are spent, and especially those that will disclose financial records.

My family recently decided to donate an older family car to the fight against breast cancer.  We found a site coming up first on internet searches.  A call to the site number had a representative saying suspicious things.  We did more research.  Good thing.  On further research, the charity appeared convoluted, difficult to track, and was criticized for not being reliable for charitable giving.  For example, it appeared that the charity took in $5.7M in revenues in 2013, but their expenses claimed were $5.65M.  The Form 990 on file with the IRS showed that very little money actually went to a true charitable purpose.   Do we know whether it was a trustworthy charity?  No, there was not enough out there to assure us, and plenty to raise red flags.   In the end, the car went not to them, but to a different charity with solid figures and accountability.

If you think the warm, fuzzy charity that is tugging at your heartstrings is worth your $$, make sure it can support its claims.   Try this link set up by the California Department of Justice: https://oag.ca.gov/charities.  Put the name of the charity to which you’d like to donate in their Charity Research Tool.   Be cautious if your charity does not appear, and do further research.   You also may want to take a look at this scary recent news clip:  http://www.cnn.com/2015/05/19/us/scam-charity-investigation/.  Bottom line:   Sadly, charity scammers are out there, and you’ve got to be vigilant so you don’t get “pinked in a wink.”

0

In what industry, other than health care, are consumers expected to make life-altering decisions about who to hire (for the most important job — their health) without the slightest idea what their services will cost?

CR-Health-II-California-Project-Logos-09-15A new website clears some of the fog surrounding health care value in California.  A tool on the site allows consumers to compare California hospitals and health care providers on both cost and quality. But health insurers may be making a play to render it useless.

The $3.9 million web tool was created through a partnership between the California Department of Insurance, UC San Francisco, Consumers Union (the publisher of Consumer Reports) and others.  It allows comparison of quality scores of health care providers with the amount they charge for their services.

Visit the website by clicking the pic above, or going to www.cahealthcarecompare.org.

This information, particularly the quality scores, is sorely needed by California consumers and is an excellent step forward.  Where the project falls flat for many consumers, however, is that it does not allow consumers to compare the net cost charged to them between different health insurance plans.  Due in part to the Affordable Care Act, a lot of us are insured, and that number is growing. According to the LA Times, health insurance companies have worked to block the inclusion of their rates in a comparable tool.  Instead, we are left with statewide averages, which can mask wide variations between insurance plans.

So, for many of us, the comparison is incomplete.  We can discover the rated quality of a provider, and the average price of the service… but not actual cost to ourselves or our insurer, or what it would be under a different plan. (Our insurer’s cost becomes very important in liability claims, because they demand their portion back!).  Detailed cost estimates from insurers can be found by clicking a button on the new website.  But only health plan members with an active policy can access that information — ensuring that no cost comparison can be made before buying a policy.

We applaud the new “CA Health Care Compare” website as an important first step in health care value transparency.  And we urge the Department of Insurance, Consumers Union and California consumers to keep the heat on insurers to pull back their curtain on pricing, so that the site might reach its full potential.

0

Cities and counties usually have broad immunities from lawsuits.  But, if a statute provides a basis, such as when a city allows a dangerous condition to exist on public property, there can be liability.

The California Supreme Court recently found that trees planted or maintained in a median can pose a foreseeable danger to drivers, and that a city can be liable, even in a case where another negligent driver causes a car to veer into the median and hit the tree.  The court found it was not necessary for the plaintiff to prove the trees caused the at-fault driver to operate his vehicle recklessly. The court held plaintiffs need only show the trees – in this case which were alleged to be too close to the road – were a proximate cause of the injuriesCordova v. City of Los Angeles.  August 13, 2015.

Tree cases are blooming of late.  In 2014, City of Pasadena v. Superior Court held that local agencies could be liable for inverse condemnation when a city-owned tree damaged in a windstorm fell and damaged private property.

Dangerous conditions of trees can lead to large verdicts, as seen in a suit filed in 2011 by a man who was rendered paraplegic after being crushed by a falling queen palm after the city canceled its tree-trimming program due to budget cuts.  Mission Hills resident Michael Burke, the plaintiff in that case, received a verdict of a reported $7.7M against the City of San Diego.  Press after the case focused on the need for inspection, monitoring and care of trees under government control, especially palms which have shallow root systems and topple more easily.

And lower trees blocking views can be just as bad a problem.  In March, 2015, a baby was killed and her father injured when her father pushed a stroller across an intersection at Catalina Blvd. and Canon Streets in Point Loma.   The motorist who hit them indicated a tree had blocked his view.  That palm tree has since been removed by the city.

Local agencies should be viewing these cases as a call to remove or trim trees before tragedies are repeated.  In some areas, untended brush impeding views may be the problem.  But, just as worrisome, drought conditions and water restrictions can weaken trees.  And, parched trees can and do fall.  http://www.usnews.com/news/science/news/articles/2015/07/31/amid-california-drought-fears-rise-of-trees-dying-falling

Homeowners and local entities responsible for public grounds should take heed of these new cases and the conditions increasing potential liability.

0

The New York Times released a video report today on the famous lawsuit brought by a woman over burns she suffered from a spilled cup of McDonald’s coffee. The often misreported and misunderstood case of Liebeck v. McDonalds became a lightning rod for “tort reform” advocates in the 1990s.

http://www.nytimes.com/video/us/100000002507537/scalded-by-coffee-then-news-media.html

0

Over the last five budget years, California has seen nearly $1 billion in cumulative budget cuts to the courts of California.  The courts are now severely crippled.  The San Diego Superior Court is dealing with $33 million in budget cuts enacted by the State Legislature.  Those cuts have resulted in the reductions of more than 170 court positions and the closing of 20 courtrooms.

Deep reduction of funding all across the state has resulted in courthouse closures, reduced numbers of courtrooms, drastically cut hours and services, large numbers of lay-offs of staff, long lines and higher fees.

Reduction in court personnel is causing a dramatic shift of caseloads onto already overburdened judges and clerks.  Civil departments are sharing calendar clerks, and civil judges are handling unthinkable numbers of cases, often into the high hundreds to over a thousand, without adequate support.  Judges and staff are soldiering forward, but things have been really tough for them.   Family law and probate courts are also severely impacted.

As of November 5, 2012, the San Diego Superior Court has not been supplying court reporters for civil matters.  Parties are responsible for hiring and paying for their own reporters for all proceedings, including trials.  If they do not do so, there is no record of the proceedings.

Hearing dates are becoming more difficult to obtain.  We are also now seeing delays in processing of paperwork, and on one occasion, the total loss of court-filed papers which were eventually found, with great apologies from the court.  The case involved an elderly disabled man who could ill afford a delay in compensation in his matter, which had already settled and was merely waiting approval.

The implications these cuts have on litigants is quite serious.  We are working hard to press our matters forward to trial despite the constraints.  If you have any questions about the impact of the budget crisis on your pending matter with us, please give us a call.

If you would like to learn more, here are three recent articles from the Los Angeles Times, the Orange County Register, and the San Diego Union Tribune:

http://www.latimes.com/news/local/la-me-court-cutbacks-20130410,0,3144605.story

http://www.ocregister.com/articles/court-388184-courts-budget.html

http://www.utsandiego.com/news/2013/Mar/11/chief-justice-urges-reinvestment-in-calif-courts/all/

0

As we approach Mother’s Day, we are reflecting on the hardworking mothers of special needs children we have represented.  It’s a difficult, often lonely job raising a child with developmental disabilities.  We have an ongoing commitment to making a difference in the lives of these mothers and their families.  Our advocacy on behalf of special needs children and their parents has been continuous over the last couple of decades.

We receive many inquiries about the unfortunate demise of babies before or at term. More than one million babies die on the day they are born every year worldwide, according to a report from Save the Children, a non-profit with the mission to improve the lives of kids in need around the world.  A recent article in USA Today discusses some very simple products that can save newborns.  http://m.usatoday.com/article/news/2137163

More frequently, however, we get calls about infants relating to injuries suffered during the birth process, and we see children diagnosed with Cerebral Palsy, Erb’s Palsy and other neurological conditions.  Changes in the health care system have led to an increase in the number of deliveries handled by doctors and nurses without adequate training and experience.  As we represent children and mothers who have been injured through negligence, we also seek to foster change that will ensure similar mistakes are not made again.

Due to the length of our experience in this area, we also link our clients with experts, resources, technology, research and developments that may aid in therapy and adaptive assistance for the children, as well as sources of aid for the parents, such as respite care.

New developments in treatment and therapies are assisting some of these children.  As an example, we note some increase in function found in babies who have been through hypothermia, or “cooling” protocol, immediately after birth.  This therapeutic hypothermia is a medical treatment that lowers the baby’s body temperature in order to help reduce the severity of damage to tissue after the brain has been deprived of oxygen and the body of blood flow.  The children we are encountering who have had access to this treatment do seem to fare better than those without it.

Among the extraordinary people we have had the privilege to represent, we look this week to the loving mothers of these beautiful children, and wish them peace, safety and health.

0