electronic health records- Christensen Law

Meaningful Use Stage 2 Electronic Health Records

Meaningful Use Objectives For Stage 2 Electronic Health Records

Sharing electronic health records is always a matter of security. It’s all about making sure someone’s medical history is protected as it’s transferred and stored in the digital space. Christensen Law shares this article of a few things that go into securing your electronic health records.

Written By: S.Sandy Sanbar, MD, PhD, JD, Blake Christensen, DO, D. Wade Christensen, JD, J.Clay Christensen, JD, L. Nazette Zuhdi, JD, LLM, Adam W. Christensen, JD, MBA, Oklahoma City

On Jan 1, 2014, Meaningful Use Stage 2 began for eligible professionals (EPs). Physicians must develop strategies for meeting each of the following five Meaningful Use Objectives, and talk to their vendors about plans and timelines for getting their electronic health record (EHRs) certified and upgraded.

(1) Develop Web Portals for Patients. Physicians should sign up their patients to participate in a web portal linked to EHR’s that give more than 50% of patients seen during the reporting period timely online access (within 4 business days of a visit) to their health records and allows them to message the physician securely. And, more than 5% of patients seen in that party their health information. EPs will also have to demonstrate Meaningful Use for the entire calendar year, not just for the 90-day period required in Stage 1. Secure messaging might be built into the EHR. One may use an external messaging service like RelayHealth, which offers a certified EHR that includes patient-messaging features. Kryptiq is another external messaging service. Patients may also set up their own personal health record (PHR) on an external “platform” such as Microsoft Health Vault, which allows users of some EHRs to upload clinical data to patients’ PHRs with their permission.

(2) Exchanging Clinical Summaries. EHRs should be capable of generating a summary in a specific and mandatory format known as the Consolidated CDA, which can be shared with other physicians who use EHRs when exchanging clinical summaries with other providers during transitions of care, such as referrals and consultations. Some EHRs can currently create a similar summary known as the Continuity of Care Document (CCD). In Stage 2, EPs must provide a summary-of-care record for more than 50% of transitions of care and referrals. In 10% of those transitions, the summary must be transmitted electronically using certified EHRs. EPs have to exchange a summary at least once with a recipient who uses a different EHR from that of the sender, or conduct a successful exchange with one of the Centers for Medicare & Medicaid Services-designed test EHR. Some healthcare organizations and physician groups are acquiring internal health information exchanges (HIEs) that allow providers to send clinical messages and document attachments to one another. Other organizations may allow independent practices to join their HIEs. Alternatively, a private practice could join a community or regional HIE if one is available. Direct Secure Messaging (DSM) protocol, created by a public-private consortium, specifies how a clinical message can be transmitted from one trusted party to another. Companies known as health information service providers (HISP) route the messages, maintain provider directories, and guarantee the authenticity of senders and receivers of information. DSM could provide independent physicians a cost-effective way to exchange summaries.

(3) Laboratory Orders. Physicians should place laboratory orders themselves. More than 30% of laboratory and imaging test orders must be done electronically in Stage 2. Laboratories are expected to offer a two-way interface before 2014 in order to keep its customers. Physician groups should analyze workflow and figure out how best to pace lab orders electronically, e.g. customizing template orders for annual exams that might include a blood panel, ECG, and bone density test.

(4) Medication Reconciliation. More than 60% of medication orders must be done electronically in Stage 2, compared with just 30% or prescription drug orders in Stage 1. When a patient is transferred to the care of an EP, the physician must use his EHR to reconcile the patient’s medications in 50% of these care transitions. Vendors must build in the capability. Staffers will have to ask patients about their medications and capture that data in structured fields, and Surescripts medication histories can help as well.

(5) Preventive Care reminders. An EHR must have some kind of registry function that can identify patients who are due for preventative/follow-up care for more than 10% of patients with two or more office visits in the previous 2 years. The EHR must have a method of automating those alerts to patients; the office staff does not have to call or mail reminders. Third-party solutions do exist that help solve this problem if an EHR cannot do it.

Electronic health records make the transfer of important patient information easier to do between doctors and other health professionals, but its convenience can be abused if not properly secured. Christensen Law hopes that this has been informative for readers and if you have any questions regarding medical law, don’t hesitate to give our professional lawyers in OKC a call!

CRNA- Christensen Law

CRNA: Liability And Responsibility

Certified Registered Nurse Anesthetics (CRNA)

Anesthesia lets medical practitioners perform precise surgery with little worry of unexpected patient reactions, However; accidents can happen with this very precise part of the medical process. Liability is a complicated term in the medical field, but Christensen Law provides this article to help clarify some of the uncertainties involving liability of certified registered nurse anesthetists (CRNAs).

Written By: Blake D. Christensen, DO, Adam W. Christensen, JD, MBA, and S. Sandy Sanbar, MD, PhD, JD

Certified registered nurse anesthetists (CRNAs) have different educational and training requirements than anesthesiologists or anesthesia assistants. This article focuses on CRNAs, anesthesiologists, and surgeons. In Oklahoma, when a CRNA administers anesthesia, who is liable for CRNA negligent acts; the CRNA, anesthesiologist, or the surgeon?

For the CRNA, the practices of nursing and medicine overlap. CRNAs had been required to practice under direct supervision until 2001, when federal laws enabled states to determine if supervision was or was not required.* Effective Nov. 1, 2011, the OKLAHOMA NURSING PRACTICE ACT (ONA) states that “[a] Certified Registered Nurse Anesthetist, under the supervision of a [doctor], … , and under conditions in which timely, on-site consultation by such [doctor], … , shall be authorized, pursuant to rules adopted by the Oklahoma Board of Nursing, to order, select, obtain and administer legend drugs, … only when engaged in the preanesthetic preparation and evaluation; anesthesia induction, maintenance and emergence; and postanesthesia care.”**

The ONA does not limit the definition of a supervising physician to only an anesthesiologist. The CRNA “supervisor” is any individual licensed to practice as a physician who supervises the CRNA and who is not in training as an intern, resident, or fellow. Furthermore, the ONA requires the supervising practitioner to provide timely onsite consultation with the CRNA as warranted by medical conditions and circumstances. In this respect, medical professionals, in the exercise of his or her professional judgment, may establish what constitutes “timely onsite consultation.”***

Specialties in medicine have nearly caused the “Captain of the Ship Doctrine” to fall by the wayside and be replaced by vicarious liability. This doctrine was originally created to hold surgeons liable because injured patients could not sue hospitals under the old “Charitable Immunity Doctrine.”*^ This doctrine aids in finding a supervising surgeon directly responsible for an alleged error or act of alleged negligence by an assistant despite the assistant’s position as a hospital employee. Standard of care for the supervising physician is established by determining whether he or she needs to be physically present for the onsite timely consultation, and has been required in Oklahoma for nearly 60 years.

In 1995, the Oklahoma Supreme Court held in Jackson v. Oklahoma Memorial Hospital*^^ that the supervising physician owes the patient a duty of reasonable care in that supervision. Among factors affecting the supervising physician’s standard of care:

  •  The complexity of the medical or surgical procedure being carried out
  • The level of training, skill, and knowledge of the health professional
  • Any written guidelines and procedures prescribed by the healthcare facility.

A supervising physician may be liable for negligence of a CRNA under of vicarious liability, which is based on agency or contract law. The supervising surgeon may be liable for an anesthesia-related injury if the surgeon (a) abandons an unstable patient, (b) overtly directs the anesthetic plan, or (c) utilizes an unqualified anesthesia provider.

Physicians Liability Insurance Co. and other carriers calculate medical malpractice premiums by specialty and do not increase or decrease depending on supervision.*^^^ If an anesthesia mishap does occur, most courts will rightfully be able to delineate the difference in roles between the anesthesia provider and the surgeon.

The majority of mishaps occur due to reasons directly related to the underlying medical conditions or the surgical procedure. The degree of control over the delivery of the anesthetic will ultimately determine the liability. Liability should not be imputed on the surgeon for simply requesting a patient be asleep during a procedure but the law must be followed to ensure patient safety.

* Centers for Medicare & Medicaid Services, HHS. 42 CFR Ch. IV (10–1–11 Edition)
** Okla. Stat. Ann. tit. 59, § 567.3 (West)
*** 2012 WL 6560752 (Okl.A.G.)
*^ Walker, James Smith. Hospital Liability. Law Journal Press. 1985. 10(74-80)
*^^ 909 P.2d 765,774 (Okla.1995)
*^^^ Physician’s Liability Insurance Company. Physicians Professional Liability Insurance Policy (Claims – Made and reported). 2008

There are still many other facets about liability. Should you need assistance, the lawyers at Christensen Law in OKC can help to answer any questions involving this complicated term.

Accountable Care Organizations- Christensen Law

Accountable Care Organizations

Christensen Law Explains Accountable Care Organizations

Accountable Care Organizations are a part of the Affordable Care Act that’s designed to give doctors incentives to keep people healthy and out of the hospital. Christensen Law explains this new denomination of healthcare in the article below.

Written By: D. Wade Christensen, JD^ , J. Clay Christensen, JD^^ , L. Nazette Zuhdi, JD, LLM^^^, Adam W. Christensen^* , JD, MBA, Blake Christensen, DO, and S. Sandy Sanbar, MD, PhD, JD^**

The Patient Protection and Affordable Care Act (PPACA) was signed into law by President Barack Obama on March 23, 2010. It created the Medicare Shared Savings (MSS) program*. The MSS program promotes accountability for a patient population, coordinates items and services under part A and B; and encourages investment in infrastructure and redesigned care processes for the purpose of providing high quality and efficient service delivery.

In 2011, the Centers for Medicare & Medicaid Services (CMS), which is one of the HHS agencies, issued the rule that established Accountable Care Organizations (ACOs)** . The ACO initiative is a doctor-hospital partnership which heavily emphasizes integration through technology. The goals or benchmarks of ACOs are the provision of good quality care to Medicare beneficiaries, the reduction of waste when rendering medical services, and ultimately the containment of health care cost.

The doctors and hospitals will jointly be accountable for the health of their patients. They are expected to utilize, meaningfully, the use of electronic medical records and to effectively coordinate care among all providers, and are discouraged from repeating tests on patients. The Accountable Care Organizations providers contractually agree to manage all of the health care needs of a minimum of 5,000 Medicare beneficiaries for at least three years. They are given strong incentives to cooperate and save money by avoiding unnecessary tests and procedures.

They will get paid more in bonuses for keeping their patients healthy and out of the hospital. On the other hand, the ACOs may have to pay a penalty if they do not meet performance and savings benchmarks. And patients in Accountable Care Organizations would still be free to see doctors of their choice outside the network without paying more. In this regard, ACOs differ from HMOs (Health Maintenance Organizations) where patients do not have that choice. In an attempt to become integrated systems, U.S. hospital systems have been buying up physician practices in hopes of becoming ACOs that directly employ the majority of their physicians.

The novel idea of the ACO doctor-hospital partnership has raised some important legal concerns, including:

(1) anti-trust and anti-fraud laws

(2) novel contracts between doctors and hospitals

(3) direct liability of ACOs for integrated system failure or improper integration of care, failure to properly credential and re-credential physicians, and failure to properly train or oversee personnel, vicarious liability extending to both old and new duties which are based on general corporate and agency law principles

(4) liability for independent contractors under the theory of apparent authority, or ostensible agency

(5) liability of primary care physicians for any system breakdown, even at a third-party level

(6) ACO liability caused by self-insurance which protects physicians as long as the system remains financially stable

(7) malpractice claims resulting from incentivizing physicians to not repeat tests or not to refer patients for needed treatment, delay some admissions or discharge patients prematurely

(8) the standard of care for ACOs may be higher than the prevailing standard because the physician may have to explain why he or she did not follow the ACO application, assessment and individualized care plan

(9) when providing informed consent, physicians should ascertain that the patient comprehends the alternative therapies presented and their risks in order to make an informed choice; patient understanding is pivotal in the informed consent process.

An ACO should put the beneficiary and family at the center of all its activities, honor individual preferences, values, backgrounds, resources, and skills, and should thoroughly engage people in shared decision-making about diagnostic and therapeutic options. This is referred to as patient engagement, which allows the patient to assess the merits of various treatment options in the context of his or her values and convictions. The ACO standards may indeed be stricter than the prevailing informed consent standards. Physicians may be liable for lack of informed choice for failure on the part of the physician to demonstrate that a patient understood all reasonable alternatives and made decisions accordingly.

^ First Gentleman of Oklahoma; Owner, Christensen and Associates; ^^ Owner and Managing Director, Christensen Law Group ^^^ Chair, Health Law Section, Christensen Law Group ^* Attorney, Health Law Section, Christensen Law Group ^** Of Counsel, Health Law Section, Christensen Law Group Address for all: 210 Park Avenue Suite 700, Oklahoma City, OK 73102.

*http://edocket.access.gpo.gov/2011/pdf/2011-7880.pdf

**http://www.cms.gov/sharedsavingsprogram

Don’t forget, the lawyers at Christensen Law can answer any other questions you have on Accountable Care Organizations.

medical Law

Obama Care: A Pyrrhic Victory in Medical Law

Christensen Law Reviews Changes In Medical Law

In this post, Christensen Law reviews how medical law has changed due to how healthcare has evolved overtime. The Obama Care medical law has been the center of controversy ever since its inception. The idea of universal healthcare is an idea many would favor, but its practicality has always been debated.

Compiled by: D. Wade Christensen, JD, J. Clay Christensen, JD, Blake D. Christensen, DO, L. Nazette Zuhdi, JD, LLM, Adam W. Christensen, JD, MBA, and S. Sandy Sanbar, MD, PhD, JD

President Ronald Reagan was deeply opposed to the creation of Medicare, which he viewed as the sun setting on America’s future. In 1965 under the Presidency of Lyndon B. Johnson, Congress had created Medicare under Title XVII of the Social Security Act to provide health insurance to people age 65 and older, regardless of income or medical history.

Approximately 19 million people received Medicare in 1966. Before Medicare’s creation, only half of older adults had health insurance, with coverage either unavailable or unaffordable to the other half. Medicare was expanded in 1972 and again in 2001. In 2010, 48 million Americans received healthcare through Medicare. The Affordable Care Act (ACA) of 2010 is the most significant healthcare legislation since the creation of Medicare.

Beginning in 2014, the ACA requires most Americans under age 65 years to have health insurance or face financial penalties. On June 28, 2012, the U.S. Supreme Court declared the ACA in toto as constitutional, including the individual mandate which was permissible under the taxation powers of Congress as defined by the Constitution. President Obama, himself a constitutional scholar, and the Democrats in Congress were relieved, pleased, and gratified by the favorable Supreme Court decision, especially that the majority of the Justices (five) are appointees of Republican Presidents. But the Republicans in Congress have vowed to continue to “fight the battle” to repeal the ACA.

Is the Supreme Court ACA landmark decision a Pyrrhic victory for President Obama’s signature piece of legislation?

One can say that the President’s victory comes “with such a devastating cost that it carries the implication that another such victory will ultimately lead to defeat. Someone who wins a ‘Pyrrhic victory’ has been victorious in some way; however, the heavy toll and/or the detrimental consequences negate any sense of achievement or profit. There is, therefore, no reason to celebrate.” If the President is victorious in one more major and “politically destructive” and “financially costly and debilitating” battle with the Republicans, will he be utterly ruined?

In 280 BC, the army of King Pyrrhus of Epirus, an ancient Greek state, suffered irreplaceable casualties in defeating the Romans in two battles during the Pyrrhic War. Instead of being joyful of his victory, he allegedly stated that one more such victory would utterly undo him or another such victory and I come back to Epirus alone. He had lost a great part of the Greek forces, commanders and friends that he brought with him, with no recruits in sight. In contrast, the Roman camp was quickly and plentifully filled up with fresh men, not at all abating in courage for the loss they sustained, but even from their very anger gaining new force and resolution to go on with the war.

The ACA will, among other things, help over 40 million Americans without health insurance, do away with inequities of pre-existing conditions, and encourage medical students to choose primary care specialties. The ACA will impact physicians who serve uninsured and lower-income patients. It may also calm political and economic anxiety among the broader population of physicians who are unwilling or undecided about undertaking difficult and costly practice transformations to better coordinate care for patients. To some, the ACA is a step toward assuring the availability of health care to all as a universal goal. Health care, to others, is a right and not a privilege. Regardless, it must be provided in a way that is financially responsible. ‰

Select References: http://www.larrydewitt.net/Essays/Reagan.htm The Patient Protection and Affordable Care Act – Public Law 111-148. 124 Stat. 119 through 124 Stat. 1025 (906 pages) http://www.whitehouse.gov/blog/2012/06/28/supreme-court-upholdspresident-obamas-health-care-reform

Reflecting on this article, one may see that medical law is a complicated area of law that’s only getting more complicated with each passing year. If you are in need of assistance with matters pertaining to healthcare law , the lawyers at Christensen Law would be happy to help you. Please click here to contact us.