MDAdvisor Summer Issue 2015 by MDAdvantage Insurance Company of New Jersey

HOSPITALS WORKING TO IMPROVE POPULATION HEALTH

Commissioner Mary E. O’Dowd, MPH

THE COSTS OF MEDICAL PRIVACY BREACH

John Zen Jackson, Esq.

AID IN DYING MEANS DIGNITY FOR PATIENTS

Assemblyman John Burzichelli

CME

VOLUME 8 • ISSUE 3 • SUMMER 2015

HELPING THE TERMINALLY ILL DIE WITH DIGNITY

MDADVISOR: A JOURNAL FOR THE HEALTHCARE COMMUNITY.

SAVE THE DATE!

MDADVANTAGE FALL EDUCATION PROGRAMS 速

ICD-10 ORTHOPEDIC CODING SEMINAR September 9, 2015 National Conference Center, East Windsor, NJ Open to MDAdvantage orthopedic surgeons & their billing/coding staff

COMPLIANCE 101: IDENTIFYING YOUR AUDIT RISK November 18, 2015 The Mansion on Main Street, Voorhees, NJ Open to MDAdvantage insureds & Members of the Burlington, Camden & Gloucester County Medical Societies

COMPLIANCE 101: IDENTIFYING YOUR AUDIT RISK December 2, 2015 Sheraton Eatontown Hotel Open to MDAdvantage insureds & Members of the Monmouth, Ocean, Atlantic & Cape May County Medical Societies

Pre-registration is required. To register, contact our Risk Management Department at 888-355-5551 or register online at www.MDAdvantageonline.com.

NTE A T OS C . A

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MDADVISOR

WHAT’S HAPPENING IN HEALTHCARE?

“Medicare Proposes to Reimburse Physicians for End of Life Counselling” As a large segment of Americans age and live longer, the demand for advance care planning conversations will now become an important component of routine doctor visits. The final decision on this Medicare proposal is expected to be made by November 1, 2015, and to take effect in January of 2016. “California Enacts U.S.’s Strictest Vaccination Law” Governor Jerry Brown signed a comprehensive vaccination bill barring religious and personal belief exemptions for California schoolchildren. The recent California law was adopted in response to the rising number of parents who choose not to inoculate their children against measles and other preventable diseases.

DEAR EDITOR: I wanted to take a moment to thank the Editorial Board of MDAdvisor for adding CME articles to the journal this year. How could I not take advantage of completing relevant, free, easy-to-read CME from the folks at MDAdvantage who have as much interest in my medical practice success as I do? I read every issue of MDAdvisor, and now I get the added bonus of earning CME credits as well. Thanks again for bringing quality articles to the New Jersey healthcare community.

MDADVISOR

NEWS & ACKNOWLEDGEMENTS

“Barnabas and Robert Wood Johnson Agree to Form New Jersey’s Largest Health System” Barnabas Health and Robert Wood Johnson Health System have signed an agreement to combine into what would become New Jersey’s largest health system. This deal follows the recent pattern in New Jersey of the consolidation of hospitals through merger and acquisition agreements. In order to be completed, the proposed deal requires regulatory approval and is expected to be finalized in 2016.

A Journal for the Healthcare Community PUBLISHER PATRICIA A. COSTANTE, FACHE Chairman & CEO MDAdvantage Insurance Company PUBLISHING & BUSINESS STAFF CATHERINE E. WILLIAMS Senior Vice President MDAdvantage Insurance Company JANET S. PURO Vice President MDAdvantage Insurance Company THERESA FOY DIGERONIMO Copy Editor MORBELLI RUSSO & PARTNERS ADVERTISING INC. EDITORIAL BOARD PAUL J. HIRSCH, MD, Editor-in-Chief HON. PAUL W. ARMSTRONG, JSC (Ret.) STEVE ADUBATO, PHD RAYMOND H. BATEMAN CAROL V. BROWN, PHD PETE CAMMARANO DONALD M. CHERVENAK, MD STUART D. COOK, MD VINCENT A. DEBARI, PHD GERALD N. GROB, PHD JEREMY S. HIRSCH, MPAP WILLIAM G. HYNCIK, ATC JOHN ZEN JACKSON, ESQ. ALAN J. LIPPMAN, MD JUDITH M. PERSICHILLI, RN, BSN, MA EMERGING MEDICAL LEADERS ADVISORY COMMITTEE JOHN ALEXANDER STEVEN BIALICK ERIN CONWAY, MD

KALVIN FOO ASHLEY SILAKOSKI, MD EMILY WEINICK

Alex Flaxman

PUBLISHED BY MDADVANTAGE INSURANCE COMPANY 100 Franklin Corner Road, Lawrenceville, NJ 08648-2104 www.MDAdvantageonline.com Phone: 888-355-5551 • Editor@MDAdvisorNJ.com

Alex Flaxman, MD, MSE Chronic Pain Management of New Jersey

INDEXED IN THE NATIONAL LIBRARY OF MEDICINE’S MEDLINE® DATABASE.

Sincerely,

Material published in MDAdvisor represents only the opinions of the authors and does not reflect those of the editors, MDAdvantage Holdings, Inc., MDAdvantage Insurance Company and any affiliated companies (all as “MDAdvantage®”), their directors, officers or employees or the institutions with which the author is affiliated. Furthermore, no express or implied warranty or any representation of suitability of this published material is made by the editors, MDAdvantage®, their directors, officers or employees or institutions affiliated with the authors. The appearance of advertising in MDAdvisor is not a guarantee or endorsement of the product or service of the advertiser by MDAdvantage®. If MDAdvantage® ever endorses a product or program, that will be expressly noted. Letters to the editor are subject to editing and abridgment. MDAdvisor (ISSN: 1947-3613 (print); ISSN: 1937-0660 (online)) is published by MDAdvantage Insurance Company. Printed in the USA. Subscription price: $48 per year; $14 single copy. Copyright © 2014 by MDAdvantage®. POSTMASTER: Send address changes to MDAdvantage, 100 Franklin Corner Road, Lawrenceville, NJ 08648-2104. For advertising opportunities, please contact MDAdvantage at 888-355-5551.

MDADVISOR | SUMMER 2015

SUMMER 2015 – CONTENTS

LETTER FROM MDADVANTAGE® CHAIRMAN & CEO PATRICIA A. COSTANTE

CME

THE COSTS OF MEDICAL PRIVACY BREACH | By John Zen Jackson, Esq.

POINT OF VIEW – AID IN DYING MEANS DIGNITY FOR PATIENTS | By Assemblyman John Burzichelli

HOSPITALS WORKING TO IMPROVE POPULATION HEALTH | By Commissioner Mary E. O’Dowd, MPH

AN INTERVIEW WITH BERNIE FLYNN: INSIGHTS INTO LEADING A NEW JERSEY INSURANCE COMPANY | Interviewed by Major General Maria Falca-Dodson, USAF (Ret.), and Janet S. Puro, MPH, MBA

EMBRACING TECHNOLOGY TO CONNECT TO YOUR PATIENTS | By Steve Adubato, PhD

TOP TIPS FOR PHYSICIANS: GETTING THE MOST OUT OF YOUR PARTNERSHIP WITH YOUR BROKER | By Donald M. Chervenak, MD

STANDARDIZED TESTING IN MEDICAL SCHOOL: MAKING PEACE WITH THE PROCESS | By Sarah Armenia

MDADVISOR

In order to obtain AMA PRA Category 1 credit™, participants are required to: 1) Review the CME information along with the learning objectives at the beginning of the CME article. Determine if these objectives match your individual learning needs. If so, read the article carefully. 2) The post-test questions have been designed to provide a useful link between the CME article and your everyday practice. Read each question, choose the correct answer and record your answers on the registration form. 3) Complete the evaluation portion of the Registration and Evaluation Form. Forms and tests cannot be processed if the evaluation section is incomplete. 4) Send the Registration and Evaluation Form to: MDAdvisor CME Dept c/o MDAdvantage Insurance Company 100 Franklin Corner Rd Lawrenceville, NJ 08648 Or Fax to: 978-367-8545 5) Retain a copy of your test answers. Your answer sheet will be graded, and if a passing score of 70% or more is achieved, a CME certificate awarding AMA PRA Category 1 Credit™ and the test answer key will be mailed to you within 4 weeks. Individuals who fail to attain a passing score will be notified and offered the opportunity to reread the article and take the test again.

THE CO TS OF MEDICAL PRIVACY BREACH By John Zen Jackson, Esq.

6) Mail the Registration and Evaluation Form on or before the deadline, which is August 1, 2016. Forms received after that date will not be processed. Authors: John Zen Jackson, Esq. (McElroy, Deutsch, Mulvaney & Carpenter, LLP) Joint Providership Accreditation: This activity has been planned and implemented in accordance with the Accreditation Requirements and Policies of the Medical Society of The State of New York (MSSNY) through the joint providership of KACS and MDAdvantage Insurance Company. KACS is accredited by The Medical Society of the State of New York (MSSNY) to provide continuing medical education for physicians. Kern Augustine Conroy & Schoppmann, P.C. designates this journal-based CME activity for a maximum of 1.0 AMA PRA Category 1 Credit™. Physicians should claim only the credit commensurate with the extent of their participation in the activity. Disclosure: KACS relies upon planners, moderators, reviewers, authors and faculty participants in its CME activities to provide educational information that is objective and free of bias. In this spirit and in accordance with MSSNY and ACCME guidelines, all planners, moderators, reviewers, authors and faculty participants must disclose relevant financial relationships with commercial interests whose products, devices or services may be discussed in the CME content or may be perceived as a real or apparent conflict of interest. Any discussion of investigational or unlabeled use of a product will be identified. The planners, moderators, reviewers, authors and faculty participants do not have any financial arrangements or affiliations with any commercial entities whose products, research or services may be discussed in these materials. No commercial funding has been accepted for the activity. 4

MDADVISOR | SUMMER 2015

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LEARNING OBJECTIVES At the conclusion of this activity, participants will be able to: 1) Explain the requirements of HIPAA and HITECH. 2) Discuss the consequences of failing to comply with the privacy protection requirements of HIPAA. 3) Describe how to implement strategies to ensure adequate protections for patient medical confidentiality.

“

Whatever, in connection with my professional practice, or not in connection with it, I see or hear in the life of men, which ought not be spoken of abroad, I will not divulge as reckoning that all such should be kept secret.

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~The Hippocratic Oath The stakes for failing to adhere to adequate protections for patient medical confidentiality keep getting higher. In addition to the already frightening scope of penalties and problems that might follow a breach of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, a recent case in Indiana dramatically highlights the increasing risk to a healthcare provider from the wrongful use and disclosure of a patient’s healthcare information. In connection with the HIPAA Privacy Rule, such information and data are termed Protected Health Information (PHI). On April 14, 2003, compliance with the HIPAA Privacy Rule became mandatory for most covered entities. The

Office for Civil Rights (OCR)–the enforcement arm for the Department of Health and Human Services–began to accept complaints involving the privacy of personal health information in the American healthcare system. At that time, it was OCR’s stated intention to pursue enforcement activities through an approach that initially emphasized guidance and technical assistance.1 However, the agency had more coercive tools available to it, and with the passage of time, the agency has been employing these more coercive tools with significant impact on healthcare providers. The potential penalties for HIPAA non-compliance range from $100 to $50,000 for violations that occur in the absence of willful neglect to penalties starting at $50,000 in circumstances of willful neglect. As a recent piece in this journal noted, for the two-year period of 2011–2012, approximately 15 million individuals had their protected health information compromised through various HIPAA breaches. OCR assessed penalties of some $3.5 million in 2013 and more than $7 million during the first half of 2014.2 With the enactment and implementation of the Health Information Technology for Economic and Clinical Health Act (HITECH) in 2009, business associate liability for HIPAA breaches was expanded, and state Attorneys General received the power to bring HIPAA enforcement actions. Several settlements have been reached in actions brought by the state Attorneys General.3

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Compensatory damages in an action for wrongful disclosure may include recovery for emotional distress, the costs of medical or psychiatric treatment for emotional injuries caused by the disclosure and lost wages or loss of employment.

”

BREACH OF PRIVACY VIOLATIONS AND PENALTIES The Department of Justice in conjunction with the Federal Bureau of Investigation (FBI) has responsibility for dealing with criminal violations. It is a federal criminal offense for a person to commit any of the following three acts: 1. to knowingly and in violation of the regulations use or cause to be used a unique health identifier 2. to knowingly and in violation of the regulations obtain individually identifiable health information relating to an individual 3. to knowingly and in violation of the regulations disclose individually identifiable health information to another person4 The penalties for a criminal violation depend on the circumstances of the wrongful use and disclosure. The penalty may be a fine of not more than $50,000 with imprisonment for not more than one year, or both, with an enhancement of the penalty if the offense is committed under false pretenses with a fine of up to $100,000, imprisonment for not more than five years or both. Most severely, if the offense is committed with the intent to sell, transfer or use individually identifiable health information for commercial advantage, personal gain or malicious harm, the offender can be fined not more than $250,000, imprisoned for not more than 10 years or both.5 The first criminal case was brought in 2004 in the Western District of Washington. It involved a phlebotomist who had obtained a cancer patient’s personal information from his health record and used it to fraudulently obtain four credit cards, making charges of thousands of dollars in the patient’s name. The phlebotomist received a 16-month prison sentence.6 Criminal prosecutions, although rare in

MDADVISOR | SUMMER 2015

comparison to the civil enforcement by OCR, continue to occur. In August 2014, a former hospital nurse entered a plea of guilty in the Eastern District of Texas to wrongful disclosure of protected health information for personal gain. In February 2015, he was sentenced to 18 months in 7 federal prison. An obligation to preserve patient confidentiality has long been part of licensing schemes and the basis for professional disciplinary actions. Violations of HIPAA regulations have been the basis for a number of physician disciplinary proceedings based on a finding of “professional misconduct.” The New Jersey State Board of Medical Examiners is empowered to ground disciplinary decisions in the violation of any state or federal statute or regulation that the Board is responsible for administering.8 Reprimands have been issued in New Jersey and elsewhere.9 PRIVATE LAWSUITS FOR BREACH OF PRIVACY DAMAGES Until 2006, multiple court decisions had repeatedly rejected individual patients’ attempts to base a claim for compensation on breach of HIPAA regulations. However, this absence of the right to bring private civil damage lawsuits under the HIPAA Privacy Rule has proven to be of limited protection. The very first issue of MDAdvisor in 2008 noted the potential for renewed concern regarding HIPAA violations forming the basis for tort claims.10 Rather than basing the tort claim on the violation of any provisions of the HIPAA regulations, a claim was formulated as a breach of the common law protection of patient confidentiality with the HIPAA Privacy Rule

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providing evidence of the appropriate standard of care that was to be observed and had been breached. Starting with the 2006 North Carolina decision of 11 Acosta v. Byrum, an increasing groundswell of cases has recognized state law claims of violation of physicianpatient confidentiality and privacy arising out of conduct that violates the HIPAA Privacy Rule. A similar 12 13 conclusion has been reached in Missouri, Minnesota, 14 15 16 Tennessee, West Virginia and Connecticut. The Connecticut decision in mid-November 2014 even allowed use of the breach of medical confidentiality as protected by the HIPAA Privacy Rule to provide the basis for a class action. In addition to demonstrating a duty of confidentiality and breach of that duty, a plaintiff asserting the wrongful disclosure of patient information must establish that the breach proximately caused the alleged damages being claimed. Compensatory damages in an action for wrongful disclosure may include recovery for emotional distress, the costs of medical or psychiatric treatment for emotional injuries caused by the disclosure and lost wages or loss of employment. If a patient relies on an invasion of privacy theory, then his or her recovery generally will be based on emotional suffering and injury to the patient’s reputation. A plaintiff may not have to allege a physical injury in order to recover for the emotional distress allegedly caused by the disclosure of confidential medical information. In the absence of catastrophic consequences from the wrongful disclosure, the extent of recovery in these cases has been relatively limited. Jury awards were frequently only a few thousand dollars; although there are some verdicts in excess of $100,000.17 Not surprisingly, there have been some verdicts that have included punitive damage awards because of aggravating circumstances.18 THE INDIANA CASE: A CLARION CALL Tort exposure arising from conduct in breach of the HIPAA Privacy Rule took on a new dimension with the decision of the Indiana Court of Appeals upholding a jury verdict in favor of the plaintiff for $1.8 million. This verdict was reduced by 20 percent for an amount of injury attributable to the conduct of a non-party, with a resulting final award of $1.44 million.

In Walgreen Co. v. Hinchy,19 the trial court permitted the use of HIPAA as evidence of the standard of care for a pharmacist’s duty of confidentiality and privacy regarding a patient’s protected health information. Pharmacies are 20 considered “covered entities” under HIPAA and, similar to physicians, have a regulatory obligation to maintain 21 confidentiality of patient information. Plaintiff Hinchy had been having an on-and-off sexual relationship with a Mr. Peterson. Hinchy filled all of her oral contraceptive prescriptions at a Walgreens pharmacy. While Peterson was seeing Hinchy, he also began dating a Walgreens pharmacist named Withers. At some point in the relationship, Hinchy became pregnant with Peterson’s child. Later, Peterson learned that he had contracted genital herpes. After the birth of the child, Peterson informed Withers about both the baby and the possible exposure to herpes. Withers accessed the Walgreens prescription profile for Hinchy to see if she could find any information regarding treatment for sexually transmitted diseases. In the ensuing litigation, Withers claimed that she did not look for information regarding birth control prescriptions and did not reveal any of the information that she had accessed to anyone. The jury did not accept the pharmacist’s version of events. Peterson had an exchange of text messages with Hinchy in which he berated her regarding the failure to refill her oral contraceptive prescriptions and claimed to have a printout of the record. His remarks were in connection with an attempt to rebuff claims for child support in connection with a paternity lawsuit. Concerned about how Peterson had this information, Hinchy contacted a Walgreens branch but was informed that there was no way to track whether her records had been accessed. Hinchy took no further action at that time. About a year later, however, Peterson sent a gift to his son with a return address on the package that Hinchy did not recognize. Through an Internet search, she linked the address with Withers and learned that Peterson and Withers had married. She also learned that Withers was a pharmacist at the local pharmacy where Hinchy filled her prescriptions. Hinchy contacted her local pharmacy to report her suspicions. The Walgreens investigation confirmed that in violation of HIPAA, Withers had accessed Hinchy’s prescription information without consent.

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Hinchy’s lawsuit had several counts of wrongdoing against Withers and claims of vicarious responsibility against Walgreens for Withers’ actions, as well as direct claims based on negligent supervision and training of its employee. Summary judgment was denied, and the case was presented to a jury in July 2013. The jury returned a verdict in favor of the patient and found that the total amount of damages suffered by Hinchy was $1.8 million, that Peterson even though a non-party who was not sued was responsible for 20 percent of the damages and that Walgreens and Withers were jointly responsible for the remaining 80 percent. (The issues involving the employer’s vicarious liability and defenses based on conduct outside the scope of the pharmacist’s employment warrant fuller 22 discussion than this article permits. ) In its review on appeal, the intermediate Indiana Court of Appeals easily found a basis for liability in the negligent breach of a duty of confidentiality on the part of the pharmacist and that Hinchy had provided evidence of resulting damages. The court then rejected the contention that the verdict was excessive in amount. The court noted that there was the following evidence of Hinchy’s damages: • The pharmacist had learned about Hinchy’s private health information, including her Social Security number, and then shared that information with Peterson, who then shared the information with at least three other people. • Hinchy’s father learned about her use of birth control, that she had herpes and that she had stopped taking birth control shortly before becoming pregnant. • Hinchy testified that she experienced mental distress, humiliation and anguish as a result of the breach. She stated that she was upset, crying and feeling “completely freaked out.” She felt “violated,” “shocked” and “confused.” • The disclosure led to Peterson berating Hinchy for “getting pregnant on purpose” and eventually extorting Hinchy by threatening to release the details of her prescription usage to her family unless she abandoned her paternity lawsuit. • Hinchy testified that she experienced uncontrollable crying that affected her ability to care for her child, went to a counselor to address the emotional toll of the privacy breach, experienced a general distrust of

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all healthcare providers and felt a persistent and continuous loss of “peace of mind.” • Hinchy also testified that she was now taking Celexa, an antidepressant, which costs $75 per month. Before the breach, she had taken a weaker antidepressant intermittently and had not taken it 19 for more than one year before the breach. In support of the argument regarding excessive damages, the defendant Walgreens contended that: 1) Hinchy did not have a physical injury or condition resulting from the breach, 2) Hinchy had no lost wages as a result of the breach and 3) Hinchy did not offer any testimony from a medical professional or counselor supporting her claim of emotional distress.19 The court viewed these arguments as a request that it reweigh the evidence, which it would not do. Accordingly, the verdict was upheld. Defendant Walgreens requested that the intermediate Court of Appeals reconsider its ruling. That request was denied as was the Walgreens petition for further review by the Indiana Supreme Court.23 PROTECTIVE STEPS The catastrophic potential of such verdicts becoming widespread is underscored by the likely limitations of insurance coverage. Breach of medical confidentiality claims are not automatically encompassed by the protection of medical malpractice liability insurance. Some policies utilize the concept of “medical incident” arising out of or resulting from professional services to preclude coverage for a breach of medical confidentiality.24 Even when the conduct giving rise to the claim occurs during the performance of professional services so as to come within the definition of “medical incident,” coverage may be denied based on policy exclusions for conduct that violates a statute25 or based on the characterization of the conduct as an intentional act.26 The insurance industry has responded by offering coverage for different aspects of the costs or liabilities that arise from breach of medical confidentiality or from data breaches involving personally identifiable information such as Social Security numbers or dates of birth. The area of “cyber risk” in particular has seen expansion as standalone or supplemental coverage. In light of the expanding exposure, these new insurance products are

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well worth evaluating to assess whether the insuring clauses, definitions and exclusions provide meaningful protection. The cost of such coverage needs to be assessed in terms of the scope of the offered coverage and the potentially substantial monetary penalties or damage awards that can be imposed. Another fundamental protective step is having in place appropriate policies and procedures for handling confidential patient information and PHI, along with adequate training on privacy concepts and practices for new employees and staff at the start of employment.

a protective step to prevent a privacy breach, audits permit earlier recognition of a problem and allow for attempts to mitigate and ameliorate any damage. Last, the implementation of the exquisitely simple step of encryption protocols for laptops and other portable data devices cannot be overemphasized. Encryption should not be ignored because of the powerful protection it can provide against inadvertent disclosures. Encryption makes electronically stored data inaccessible or unreadable. Indeed, if encrypted, lost PHI data on a misplaced or lost laptop may well not even be a breach that needs to be

“

Law enforcement has embraced the notion that the days when medical employees could snoop around patient charts for “juicy” information to share outside the office or hospital are very much gone. Such conduct subjects the offender to criminal prosecution and imprisonment.

”

Furthermore, there should be periodic retraining of HIPAA standards to refresh or update staff. The lack of such basic orientation and education by the employer creates significant vulnerability to liability for various regulatory and tort violations. In addition to policies and procedures for the healthcare professional’s staff, it is important to have in place so-called Business Associate Agreements with non-workforce personnel and non-employees who nonetheless perform certain functions or activities that involve the use or disclosure of PHI on behalf of, or in providing services to, a covered entity. Such agreements place an obligation on the business associate to adhere to the HIPAA practices and policies of the healthcare professional. Similarly, making provisions for audits of electronic records to identify inappropriate or suspicious activities or access should be considered by the prudent medical practice or its managers. While audits may not actually be

27 reported under HIPAA. Although encryption of ePHI can be a powerful source of comfort, the protocols to do so must be done correctly and periodically updated as the technology changes and advances. It is important for all healthcare professionals to be aware that although HIPAA does not provide a private cause of action, an action for breach of confidential information is likely recognized under state law, and HIPAA may be used as evidence of the appropriate standard of care. In addition to the tort exposure, the regulatory penalties can be devastating. Moreover, law enforcement has embraced the notion that the days when medical employees could snoop around patient charts for “juicy” information to share outside the office or hospital are very much gone. Such conduct subjects the offender to criminal prosecution and imprisonment. John Zen Jackson, Esq., is a partner in the Health Care Practice Group at McElroy, Deutsch, Mulvaney &

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Carpenter, LLP and is certified by the Supreme Court of New Jersey as a civil trial attorney.

Tabatha v. Charlestown Area Medical Center, 759 S.E.2d 459 (W.Va. 2014); R.K. v. St. Mary’s Medical Center, 735 S.E.2d 715 (W.Va. 2012), cert. denied, 133 S.Ct. 1738 (2012).

Byrne v. Avery Center for Obstetrics and Gynecology, 102 A.3d 32 (Conn. 2014); Doe v. Southwest Cmty. Health Ctr., Inc., 2010 Conn. Super. LEXIS 2167, 2010 WL 3672342 (Conn. Super. Ct. Aug. 25, 2010).

68 Fed. Reg. 18885 (Apr. 17, 2003).

Tamburello, L. M. (2014, Fall). Practical lessons from HHS’s 2011-2012 report on HIPAA breaches of unsecured PHI. MDAdvisor, 7(4), E37–E41.

See, e.g., Healey, M. (2014, July 23). Women & Infants Hospital to pay $150,000 to settle data breach allegations involving Massachusetts patients. www.mass.gov/ago/news-andupdates/press-releases/2014/2014-07-23-women-infantshospital.html; Jepsen, G. (2010, July 6). Attorney General announces health net settlement involving massive security breach compromising private medical and financial information. www.ct.gov/ag/cwp/view.asp?A=2341&Q=462754; London, S. (2011, January 26). Court approves Attorney General HIPAA settlement with health insurer. http://ago.vermont.gov/ focus/news/court-approves-attorney-general-hipaa-settlementwith-health-insurer.php.

Huff v. Sabers, D.M.D., JVR No. 1104060077, 2010 WL 7058366 (Fla.Cir.Ct.); M.L. v. St. John’s Mercy Health System, JVR No. 1310080015, 2012 WL 9321069 (Mo.Cir.); Parrott v. Williams, M.D., JVR No. 488364, 2006 WL 6012994 (S.C.); Winkfield v. Mt. Carmel Health, 2011 WL 2435471 (Ohio Com.Pl.); Gomcsak v. Kovach, M.D., JVR No. 458584, 2004 WL 5279691 (Ohio); Plaintiff v. Medlantic Healthcare Group Inc. D/B/A Washington Hospital Center, JVR No. 395272, 1999 WL 34978669 (D.C.).

Peed v. Dimensions Healthcare Assocs., 2010 WL 7633919 (Md.Cir.Ct.).

42 U.S.C. § 1320d-6(a).

21 N.E.3d 99 (Ind. Ct. App. 2014).

42 U.S.C. § 1320d-6(b).

U.S. Department of Health & Human Services. (n.d.). Health information privacy. www.hhs.gov/ocr/privacy/hipaa/ understanding/coveredentities.

N.J.A.C. 13:39-7.19; N.J.A.C. 13:39-9.19.

Cf., Jackson, J. Z. (2015, May 18). The spectre of strict liability for an employee’s HIPAA breach. http://healthcareblog.mdmc-law.com.

25 N.E.3d 748 (Ind. Ct. App.), transfer denied, 2015 Ind. LEXIS 374 (Ind. 2015).

See, e.g., Delaware Ins. Guaranty Ass’n v. Birch, 2004 Del. Super. LEXIS 251, 2004 WL 1731139 (Del. Sup. Ct. 2004).

See, e.g., Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 98-99 (1997).

Cf., Harleysville Ins. Co. v. Garitta, 170 N.J. 223, 231 (2001); Hampton Medical Group, P.A. v. Princeton Ins. Co., 366 N.J. Super. 165, 173 (App. Div. 2004).

See 45 CFR §164.401 (definitions of “breach” and “unsecured”); and 45 CFR §164.304 (definition of encryption).

United States of America v. Richard W. Gibson, 2004 WL 2237585 (W.D.Wash.)

U.S. Attorney’s Office, Eastern District of Texas. (2015, February 17). Former hospital employee sentenced for HIPAA violations. www.justice.gov/usao-edtx/pr/former-hospitalemployee-sentenced-hipaa-violations.

N.J.S.A. 45:1-21(h). See, e.g., New Jersey State Board of Medical Examiners. (2012, March 14). In the matter of Nikhil S. Parikh, M.D., License No. 25MA04165700; Rhode Island Board of Medical Licensure and Discipline. (2011, April 13). In the matter of Alexandra Thran, M.D. www.health.ri.gov/discipline/MDAlexandraThran.pdf. Jackson, J. Z. (2008, Winter). Renewed concern for tort actions based on HIPAA violations. MDAdvisor, 1(1), 14–17.

638 S.E.2d 246 (N.C. App. 2006).

I.S. v. Washington Univ., 2011 U.S. Dist. LEXIS 66043, 2011 WL 2433585 (E.D. Mo. June 14, 2011); K.V. v. Women’s Healthcare Network, LLC, 2007 U.S. Dist. LEXIS 102654, 2007 WL 1655734 (W.D. Mo. June 6, 2007).

Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. App. 2009).

Harmon v. Maury County, 2005 U.S. Dist. LEXIS 48094, 2005 WL 2133697 (M.D. Tenn. Aug. 31, 2005).

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CME

THE CO TS OF MEDICAL PRIVACY BREACH â&#x153;

CME ExaMination (Deadline august 1, 2016) 1) The HIPAA Privacy Rule is a federal regulation. a) True b) False 2) HIPAA regulations deal with standards for privacy and security of patient health information. a) True b) False 3) The HIPAA Privacy Rule became effective in April 2003. a) True b) False 4) With the 2009 enactment of the Health Information Technology for Economics and Clinical Health Act (HITECH), the state attorneys general were authorized to bring enforcement action for violations of the federal regulations. a) True b) False 5) Violations of the HIPAA regulations concerning privacy and security may result in a) Regulatory monetary penalties b) Criminal prosecution with fines and/or imprisonment c) Professional licensure disciplinary proceedings d) Civil damage lawsuits e) None of the above f) Only A and B g) A, B, C and D

6) The penalties for a criminal violation of the HIPAA regulations are the same whether the conduct was negligence, deliberate or even intended to result in profit from the same of confidential information. a) True b) False 7) No one who has been convicted of criminal violations of HIPAA has gone to prison. a) True b) False 8) There is no basis for a person claiming a violation of his or her HIPAA rights to bring a private lawsuit for breach of confidentiality. a) True b) False 9) Professional malpractice insurance may not cover and provide protection against claims of HIPAA breach. a) True b) False 10) When patient information in electronic form, including EMR, is put on a portable device or laptop, which step is most important? a) To protect the portable device or laptop from loss or theft b) To password protect access to the portable device or laptop c) To encrypt the data on the portable device or laptop

CME

MDADVISOR

THE CO TS OF MEDICAL PRIVACY BREACH REgistRation & Evaluation FoRM (Must be completed in order for your CME test to be scored – Deadline august 1, 2016) REGISTRATION FORM First Name

Middle Initial

Last Name

City

State

ZIP

Phone

E-mail Address

Specialty

Degree

Address

ANSWER SHEET Circle the correct answer. 1) T F

2) T F

3) T F

4) T F

5) A B C D E F G

6) T F

7) T F

8) T F

9) T F

10) A B C

Number of hours spent on this activity _______ (reading article and completing quiz) I attest that I have read the article “The Costs of Medical Privacy Breach” and am claiming 1 AMA PRA Category 1 Credit.™ Signature EVALUATION 1. 2. 3. 4.

The The The The

Date Completed by

❑

Physician

content of the article was: authors’ writing style was: graphics included in the article were: stated objectives of this program were:

❑

Non-Physician

Excellent___ Good___ Fair___ Poor___ Excellent___ Good___ Fair___ Poor___ Excellent___ Good___ Fair___ Poor___ Exceeded____ Met____ Not met_____

Was this article free of commercial bias? Yes _________ No _________ If not, why not __________________________________________________________________________ Please share your name and contact information so that we may investigate further. Participant Name __________________________________ Telephone/E-mail: _____________________

6. Based on your participation in the CME activity, describe ways in which you will change the way you practice medicine. __Yes Describe ___________________________________________________________________________________ __No Why Not ___________________________________________________________________________________ __N/A Were you the wrong audience for this activity? _________________________________________________ 7. Did this CME activity change what you know about: • The requirements of HIPAA and HITECH. Yes ❑ No ❑ • The consequences of failing to comply with the privacy protection requirements of HIPAA. Yes ❑ No ❑ • How to implement strategies to ensure adequate protections for patient medical confidentiality. Yes ❑ No ❑ 8. Based on your participation today, what barriers to the implementation of the strategies or skills taught today have you identified?

Suggested topics for future programs:_________________________________________________________________________________

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CME

✁

5. Will the knowledge learned today affect your practice? Very Much____ Moderately____ Minimally____ None____

POINT OF VIEW

Point Of View: Choice. Means Aid in Dying Dignity for Patients (2-Pages)

Aid in Dying

Means Dignity for Patients By Assemblyman John Burzichelli

As it stands, the law in New Jersey prohibits terminally ill persons, of sound mind, from having a choice about whether to end life quietly or to suffer through pain and a diminished quality of life. This, in turn, strips away their freedom to decide how they would like to live their remaining days. New Jersey palliative and hospice professionals are to be highly commended for their work in providing care for patients with terminal illnesses and for their efforts to help preserve a patientâ&#x20AC;&#x2122;s dignity and self-respect throughout the term of illness. However, the inevitable truth is that there comes a time when medicine no longer heals and barely eases the pain. Some patients may wish to choose an alternative to continued care. My proposed Aid in Dying for the Terminally Ill Act creates a process for terminal patients who wish to be provided medicinal assistance to end their lives. The legislation would ensure the decision is a personal choice. This discussion is about revisiting a statute last looked at in 1978 that never took into account an individualâ&#x20AC;&#x2122;s right to control his or her body and personal circumstances. Like society, medicine, palliative care and hospice services have changed dramatically since then. While there are many choices in healthcare available right now that may be right for certain people, there is one more choice, not currently available, that deserves an honest discussion. The bill does not allow someone to choose on a whim between extended life or death. The bill would require terminally ill patients to first verbally request a prescription for medication to aid in dying peacefully, followed by a second verbal request 15 days later and one request in writing, signed by two witnesses. In addition, the doctor would have to offer the patient a chance to rescind the request and would

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recommend that the patient’s next of kin be notified. A second doctor would then be called upon to certify the original diagnosis and reaffirm that the patient is capable of making a decision. Only the patient would be permitted to administer the drug him- or herself. I understand the concerns of medical professionals, who, after all, are devoted to saving life. But the Aid in Dying for the Terminally Ill Act has built-in safeguards. For instance, if, in the opinion of the attending physician or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder or depression, causing impaired judgment, either physician would refer the patient for counseling. Medication to end a patient’s life in a humane and dignified manner would not be prescribed unless the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression, causing impaired judgment. A person would not be subject to civil or criminal liability or professional disciplinary action for any action taken in compliance with this bill, including being present when a qualified patient takes medication to end his or her life in a humane and dignified manner. Any action taken in accordance with this bill would not constitute suicide, assisted suicide, mercy killing or homicide under any criminal law of this state. A patient’s request for, or the provision of, medication in compliance with this bill would not constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator. In fact, any action taken by a healthcare professional to carry out the provisions of this bill is voluntary on the part of that individual. No one will be forced to participate in this process. If the law is enacted, New Jersey would be the fourth state to address this issue with law. Statistics from other states that have enacted laws to provide compassionate aid in dying for terminally ill patients indicate that the great majority of patients who requested medication to aid in dying peacefully under the laws of those states were enrolled in hospice care at the time of death, including more than 90 percent of patients in Oregon since 1998 and between 72 and 86 percent of patients in Washington in each year since 2009. This suggests that those patients had previously utilized available treatment and comfort-care options at the time they requested compassionate aid in dying. The intent of this legislation is not to compel anyone to end life because of illness or depression nor will this

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measure force anyone in the process to go against any religious beliefs. This legislation would simply place the decision about how to conclude life in the hands of the individual. I respect that this is a very personal, passionate and, often, faith-based issue. We’re still in the midst of a long conversation on this proposal, and certainly, many strong opinions on this issue have yet to be heard. But the truth is, only these patients understand what it is like to have the last few months of life riddled with pain and angst, knowing that death is approaching. These patients have been betrayed by their bodies in the worst way. Rather than waiting for the inevitable in pain and misery, this bill gives terminally ill patients the opportunity to meet their end on their own terms. We cannot prevent terminally ill patients from dying, but we can at least allow them to do it with dignity. Assemblyman John Burzichelli (D) of Paulsboro, New Jersey, is Deputy Speaker of the General Assembly, representing the 3rd Legislative District in Gloucester, Salem and Cumberland counties.

New Jersey has created a new hospital funding program focused on chronic disease that rewards hospitals for achieving improved population health outcomes that will result in better health and reduced hospital admissions.

HOSPITALS WORKING TO

Nationally, our healthcare system is going through a transformation driven by an emphasis on improving the experience of care, developing population health strategies and reducing costs. As leaders in our state, healthcare and public health leaders need to adapt to the evolving health system and align our focus on ensuring improved quality and efficiency in healthcare delivery. In an effort to promote integration of public health and healthcare, the New Jersey Department of Health has expanded its participation in value-based purchasing initiatives, which link performance outcomes to financial rewards, thus encouraging high-quality and cost-efficient care.

Improve Population Health By Commissioner Mary E. Oâ&#x20AC;&#x2122;Dowd, MPH

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ew Jersey has created a new hospital funding experience data that will be essential in measuring program focused on chronic disease that rewards hospitals outcomes of the project. Another hospital, Robert Wood Johnson (RWJ) University for achieving improved population health outcomes that Hospital, launched its DSRIP program in November 2014 will result in better health and reduced hospital admissions. and is already seeing an impact on patients. This project The Delivery System Reform Incentive Payment (DSRIP) program is the first hospital subsidy program to align is focused on improving the quality of care provided to public health and hospital quality goals in a financial incenmedically underserved and uninsured populations, tive program. New Jersey is leading the nation as one of while reducing frequent and costly hospital readmissions. 1 only six states with this initiative. This project is a five-year RWJ’s program addresses the needs of low-income pilot program that will provide hospitals with $833 million in Medicaid and Charity Care patients and has expanded funding. The amount of funding given to individual hospitals to include self-pay patients, all of whom have been is dependent on specific benchmarks being met. diagnosed with chronic cardiac conditions or other The program is focused on chronic diseases because diagnoses that place them at high risk for readmission. they are among the most common, costly and RWJ’s DSRIP project is meant to serve preventable of all health problems in the as a bridge for patients between disUnited States.2 People with chronic concharge and the point when they “7 of 10 leading ditions account for 83 percent of access a primary care physician healthcare spending, and those with for a follow-up visit, according causes of death in five or more chronic conditions have an to Andrew Thomas, APN, New Jersey are average of almost 15 physician visits RWJ Interim Director of chronic diseases, with and fill more than 50 prescriptions Care Transition. During the in a year.3 Additionally, 7 of 10 “bridge” period, staff coorheart disease leading causes of death in New dinates follow-up appointbeing the Jersey are chronic diseases, with ments for patients, links heart disease being the number them to programs that help number one 4 one killer in our state. pay for their life-sustaining killer in The DSRIP program is focused medications, begins the process our state.4” on providing low-income Medicaid, of Medicaid enrollment (if eligible) NJ FamilyCare and Charity Care and identifies any other potential patients with a framework of care for risks the patients may face before follow-up managing their chronic health conditions. visits with primary care physicians. For example, the There are 49 New Jersey hospitals participating in the team will provide scales for the homes of congestive heart program, working on improvements in the following disfailure patients who must constantly weigh themselves to eases and medical conditions: HIV/AIDS, cardiac care, determine if they are retaining fluids. asthma, diabetes, obesity, pneumonia, behavioral health One case involving a homeless individual encoun5 and substance abuse. tered soon after the program’s launch illustrates DSRIP’s One of those hospitals, AtlantiCare Regional Medical potential impact on reducing hospital readmissions and Center in Atlantic City, has developed a DSRIP project improving the overall quality of care for underserved using a primary medical home model focused on improving populations. “After reviewing the patient’s record, you care for patients with diabetes and/or hypertension. As part could see that he returned to the emergency department of the project, AtlantiCare uses health coaches and a social almost every 30 days, give or take a few days,” Thomas worker in its care team to better meet the individual’s overall explained. “It turns out that he had been diagnosed with needs. The team also uses morning huddles and virtual epilepsy, and each time he came to the ED, he was visits to better coordinate care. The project began in discharged with a free, 30-day supply of medication to January 2014, and since then, more than 350 patients control his seizures. Once that ran out, he was back in the have been enrolled and are receiving care. The hospital ED following a seizure. This cycle continued because he is in the process of collecting outcome and customer could not afford the $8 it cost for his phenobarbital.”

MDADVISOR | SUMMER 2015

Thomas and his team secured the necessary funding to consistently pay for a long-term supply of medicine, and the man has returned to the emergency department only once during the past year. “I truly believe this may be the only way we can move the needle to provide safe, effective and efficient care while reducing healthcare costs,” Thomas said. RWJ’s efforts demonstrate how DSRIP can have an impact on a patient’s long-term health and well-being. Another benefit of this program is that many hospitals in the same region that long viewed one another as competitors are now working together to improve health outcomes in their communities. For example, southern New Jersey hospitals (AtlantiCare, Cape Regional Medical Center, Cooper University Hospital, Kennedy Health, Lourdes Health System and Virtua) came together in a collaborative to share ideas, resolve challenges and share best practices. Given the impact these chronic diseases have on healthcare costs and, more importantly, on the quality of life for patients, the DSRIP program has the potential to greatly improve residents’ health. The Henry J. Kaiser Family Foundation calls DSRIP one important element in the landscape of delivery system reform efforts that 1 states are pursuing. New Jersey is currently in the third year of this demonstration program, which has given hospitals time to develop the infrastructure for their project and collect baseline data. Next year, the Department of Health will gather data on patient outcomes that will demonstrate the program’s effect on the improvement of quality of care. When the pilot is complete, a thorough evaluation of the project will be prepared by Rutgers Center for State Health Policy, which will be shared with the healthcare industry. The evaluation and examination of other state approaches to DSRIP will help inform our next steps. Great collaboration has been fostered through the program among healthcare facilities and public health and community providers, which has benefited participants. The Department and hospitals share the goal of developing successful programs across the state that can be replicated as best practices. The Department looks forward to sharing the results of the pilot projects with providers to help create a more effective and efficient healthcare system that benefits all of New Jersey’s residents. For more information, please visit the DSRIP program website at https://dsrip.nj.gov/.

Mary E. O’Dowd, MPH, is the Former Commissioner of the New Jersey Department of Health. 1

Gates, A., Rudowitz, R., & Guyer, J. (2014, September 29). Kaiser policy brief: An overview of DSRIP waivers. http://kff. org/report-section/an-overview-of-delivery-system-reformincentive-payment-waivers-issue-brief.

Centers for Disease Control and Prevention. (2015, May [update]). Chronic disease overview. www.cdc.gov/chronicdisease/overview.

Partnership for Solutions. (2004, September). Making the case for ongoing care: September 2004 update. www.rwjf.org/ en/library/research/2004/09/chronic-conditions-.html.

New Jersey Department of Health, Center for Health Statistics. (2011). Leading causes of death. www26.state.nj.us/ doh-shad/indicator/complete_profile/LCODall.html.

State of New Jersey Department of Health. (2015). Delivery system reform incentive payment (DSRIP). https://dsrip.nj.gov.

MDADVISOR

WE’D LIKE TO SAY

THANK YOU to our New Jersey

healthcare partners

for joining us as

2015 EDWARD J. ILL

EXCELLENCE IN MEDICINE

SCHOLARSHIP HONOR ROLL MEMBERS in support of the Excellence in Medicine Scholarship Fund.

EXCELLENCE IN MEDICINE SOCIETY ✦ $15,000+ MDAdvantage Insurance Company of New Jersey Kern Augustine Conroy & Schoppmann, PC Murphy Healthcare Group – In Honor of Richard P. Mackessy, MD HEALTHCARE CHAMPION SOCIETY ✦ $10,000 – $14,999 Dr. and Mrs. George F. Heinrich – In Honor of M. Maral Mouradian, MD, & Amy B. Mansue Robert Wood Johnson Health System – In Honor of Amy B. Mansue Children’s Specialized Hospital – In Honor of Amy B. Mansue HEALTHCARE INNOVATOR SOCIETY ✦ $5,000 – $7,499 Patricia A. Costante Paul J. Hirsch, MD Vaslas Lepowsky Hauss & Danke LLP Morbelli Russo & Partners Advertising New Jersey Orthopaedic Institute & Vincent K. McInerney, MD – In Honor of Richard P. Mackessy, MD BD C. R. Bard, Inc. NJM Insurance Group HEALTHCARE ADVOCATE SOCIETY ✦ $2,500 – $4,999 Cammarano, Layton & Bombardieri, LLC Princeton Orthopaedic Associates, P.A. Saiber, LLC Robert P. Wise, FACHE MDAdvisor Editorial Board Roma Bank Community Foundation & Investors Bank

THANK YOU

HEALTHCARE SUPPORTER SOCIETY ✦ $1,000 – $2,499 Drs. Edgar & Bessie Sullivan Catherine & Ed Williams Dr. & Mrs. Harry M. Carnes – In Honor of Captain Joseph P. Costabile, MD Gennaro’s Restaurant & Catering Daniel & Nina Gowaty Eileen M. Moynihan, MD StoneHill Reinsurance Partners Jim & Anita Ventantonio Drs. Donald & Renee Chervenak – In Honor of Captain Joseph P. Costabile, MD Jeremy Hirsch Perr&Knight Newark Beth Israel Medical Center New Brunswick Development Corporation (DEVCO) – In Honor of Amy B. Mansue Dr. & Mrs. Joseph Reichman – In Honor of Captain Joseph P. Costabile, MD Willis Re, Inc

An Interview with Bernie Flynn:

INSIGHTS INTO LEADING A NEW JERSEY

INSURANCE COMPANY

“Manufacturers, many of which were based in Trenton, decided that they wanted to have an insurance company that they could trust to handle their workers’ compensation insurance obligations, and that’s how it all started.”

MDADVISOR | SUMMER 2015

Interviewed by Major General Maria Falca-Dodson, USAF (Ret.), and Janet S. Puro, MPH, MBA

Bernie Flynn, Esq., CPCU, is President and CEO of New Jersey Manufacturers Insurance Company (NJM), headquartered in West Trenton, New Jersey. Recently, Mr. Flynn responded to questions posed by Janet Puro and Maria Falca-Dodson and shared his insights into what it takes to lead a major insurance company in New Jersey, the challenges NJM faces in negotiating reimbursement rates with healthcare providers and his commitment to supporting economic development and community initiatives.

MDADVISOR

MDADVISOR: What is the history of New Jersey Manufacturers Insurance Group (NJM)? FLYNN: NJM insures over a million individuals here in New Jersey as well as more than 16,000 businesses. We were started in 1913 because of new workers’ compensation laws that had been passed in New Jersey and across the country. Manufacturers, many of which were based in Trenton, decided that they wanted to have an insurance company that they could trust to handle their workers’ compensation insurance obligations, and that’s how it all started. These manufacturers invested in us, and we began writing workers’ compensation business, and a few years after that investment occurred, we paid off our investors and stood on our own as an insurance company. Eventually, we also came to write auto insurance and homeowners’ insurance. You could get our insurance both then and now only if you were an employee of a company that was a member of what is now the New Jersey Business & Industry Association, so we consider ourselves to be a membership company. We also enjoy the opportunity to provide insurance to state employees because they can’t join the Business & Industry Association. We’ve grown to become the largest provider of workers’ compensation insurance in New Jersey, and we’re among the largest in writing automobile and homeowners’ insurance. MDADVISOR: You started your career in the Attorney General’s office. How and when did you move to the private sector to work for NJM? FLYNN: I started at NJM in 1993 and became President and CEO in 2008. Before beginning my NJM career, I worked for the New Jersey Attorney General as a Deputy Attorney General in the division of law, which is the civil arm of the Attorney General’s office. I started out being one of the attorneys representing the Commissioner of Transportation and then had an opportunity to do insurance work when Governor Florio came into office. Assistance was needed to

MDADVISOR | SUMMER 2015

deal with insurance litigation that occurred in response to the law that was passed in 1990 by Governor Florio and the Legislature called the Fair Automobile Insurance Reform (FAIR) Act. I was interested in the insurance regulatory space as a result of that experience and ended up working for the Commissioner of Insurance as one of the Deputy Attorneys General who represented the Department of Insurance (now the Department of Banking & Insurance). I loved my work at the Attorney General’s office and eventually ended up at NJM, which was a good fit because of my insurance regulatory experience. MDADVISOR: What would you say was the most important thing in your background that prepared you to lead NJM? FLYNN: I would say that the most important practical experience was understanding the insurance regulatory environment in New Jersey, appreciating the politics surrounding it and seeing how a company can work through those minefields. Beyond that practical experience, if you’re going to become a top leader in any organization, you need to understand how important it is to work effectively in a group, appreciating that no one individual has all of the answers. Being from a large family, I learned a lot about teamwork at a young age, and I have carried those lessons with me throughout my life. MDADVISOR: What was the most significant change you’ve seen since you’ve been with NJM? FLYNN: There have been two significant changes, the first being auto insurance reforms back in 2003 when Governor McGreevey came into office and committed himself to changing the auto insurance landscape. The reform was a bipartisan effort by the Legislature that really took the edge off our regulatory environment and made it easier to do business. We still have a fairly robust regulatory environment in this state, but the clear signal was that the leadership in the Governor’s office, the Insurance Commissioner and the Legislature wanted to support a much-improved marketplace that supported healthy competition among carriers. When GEICO signaled that it was coming into the state two years after that reform, we knew that the insurance marketplace was ready to heat up, and NJM has had to adjust. We were a company that operated very well in a dysfunctional regulatory environment,

and, now, we needed to operate very well in a highly competitive, very functional regulatory environment. Overall, the reforms have been very positive for consumers. The other big change has been technology–something that’s certainly not unique to the property/casualty insurance sector, but it’s had a tremendous impact. We have invested considerably in modernizing our systems here so that we are at the top tier with regard to our technical expertise. We have moved away from our mainframe legacy systems and have been getting into mobile technology. This progress enables us to be much more efficient and more responsive to policyholders’ needs. Consumers can go online to apply for insurance, get a quote and find an auto policy, and, if they’re in an accident, they can take a couple of pictures with a smartphone and send them into us so we can get the repair on the vehicle started right away. Those are all things that we and our industry are doing, and we will continue to build on that. MDADVISOR: You participate in the healthcare field significantly through your workers’ compensation and automobile lines of business. What has been your experience in negotiating rates with healthcare providers? FLYNN: We are involved in reimbursing medical professionals and hospitals in the hundreds of millions of dollars annually. Whenever someone is injured in an automobile accident, we pay the bills, and we are very pleased to have supported for decades the top-flight trauma system that we have here in New Jersey. We arguably have the best trauma system in the world right here in the combined North Jersey/Central Jersey/South Jersey region, and I have certainly seen firsthand the lifesaving services that have occurred at those facilities. That’s an expense for our policyholders and one that is very appropriate. And of course we are also paying for the less severe injuries, rehabilitation and physical therapy. Insurance carriers like NJM are a premium payer of healthcare services. We pay much more, typically, than the

MDADVISOR | SUMMER 2015

federal government pays or what other major health insurers pay for the same services. We don’t mind paying slightly higher rates, but I don’t believe there should be a dramatic difference; otherwise, insurance becomes unaffordable for the policyholders. I’ll admit to a continuing frustration that we can’t negotiate our rates down to be closer to what the federal government pays or what the health insurers pay as I’d like because we don’t have the same circumstances or leverage. We are always watching for market changes that may impact us, and that’s one of the concerns with the Affordable Care Act. When costs are reduced in certain areas, they could potentially shift into the auto and workers’ compensation area. We haven’t seen evidence of that dynamic to date in any meaningful way, but that’s something we have to combat in order to best support our own policyholders. MDADVISOR: What was the greatest challenge you have faced since being at the helm of NJM? FLYNN: Hurricane Sandy is the most dramatic event that we’ve had here in most of our careers. We were taking claim calls at a rate of 1,000 an hour in the first few days following the storm. In fact, while most businesses were shut down, we had more than 400 people available immediately following Sandy to take phone calls. We were actually well prepared for this type of storm, especially after having the experience with Hurricane Irene the year before. Our primary goal was to get checks in homeowners’ hands as quickly as possible so that when they were displaced, they could go to alternative living arrangements immediately. As a leader of a property/ casualty insurance company, I’d have to say that when you experience 57,000 claims and pay out close to $300 million from one event and can still consider it the best year you’ve ever had because you could be responsive during the worst time that our policyholders have ever experienced, there is much to be proud about.

“Hurricane Sandy is the most dramatic event that we’ve had here in most of our careers. We were taking claim calls at a rate of 1,000 an hour in the first few days following the storm. In fact, while most businesses were shut down, we had more than 400 people available immediately following Sandy to take phone calls.” MDADVISOR: What did you learn from events like Hurricanes Sandy and Irene that will help you to be more prepared for similar events in the future? FLYNN: We are able to bring in professional adjusters from other organizations, and having those relationships is part of our disaster recovery plan. Since we’re not a national writer and we don’t have a team of 500 adjusters going from disaster to disaster, we need to plan for it. We can up-staff to 500 adjusters if that’s what we need, and everything out there in the field is overseen by our own NJM supervisors. We’re ready for the next storm, but we’re hoping it doesn’t happen again. MDADVISOR: How do you protect against fraudulent claims, especially when you have an event like Hurricane Sandy?

FLYNN: We know our policyholders well, so we never go into any claim presuming fraud. It does happen occasionally– and we don’t like to see it, so we’re vigilant when we come across it. We have a fraud unit staffed by more than 40 people, and we regularly train all of our adjusters to look for indicators of fraud. With Hurricane Sandy, when we initially got hit by the storm and people called in claims from the shore area, we went down and took a look and saw houses that were devastated. There was nothing to do other than make sure we could get money out the door to assist people in need. However, if somebody calls us a year-and-a-half after the storm and says he was devastated by the storm and we hadn’t heard from him at all, that’s an indicator we would have to consider. A claim like this may be absolutely legitimate, but from a fraud prevention standpoint, we would look at that a little bit more closely. Whenever fraud is detected, we immediately send it to the Attorney General’s

Did you know… MDAdvantage MDAdvantage® provides customized on-site practice assessments and local education programs.

WE PROVIDE VALUE BEYOND INSURANCE.

Sponsors and supports the Edward J. Ill Excellence in Medicine Awards® and Scholarship Fund. Publishes MDAdvisor: A Journal for the Healthcare Community. Advocates for all New Jersey physicians.

Want to know more? Visit www.MDAdvantageonline.com

MDADVISOR

“As a company with New Jersey in our name, we’re trying to do as much as we can to support the state with civic and corporate engagement.” office and the insurance fraud prosecutor, and they take it from there with regard to penalty enforcement. We have to be vigilant in fraud prevention because if we’re not then our policyholders are forced to subsidize the costs. We want to do everything we can to eliminate it as much as possible from the system. MDADVISOR: Where do you see NJM headed in the next 5 to 10 years, besides being ready and able to respond to another superstorm, if the need arises? FLYNN: We have to be very nimble as an organization and think about the future in terms of 5, 10 and even 20 years, strategically speaking, and we need to anticipate where the needs of our policyholders are going to evolve over time. For example, what will be the impact of autonomous or self-driving vehicles? That being said, our number one objective now and always is to be there when our policyholders need us. We want to meet their expectations, both from a service standpoint and from a cost standpoint. Perhaps nothing demonstrates this commitment more than our dividend policy, under which we return all of our underwriting profit and some of our investment gains to policyholders. We want to continue to grow our business and increase our family of policyholders. I believe the future for NJM and its customers is bright. MDADVISOR: How have you been involved in supporting the economic development of New Jersey? FLYNN: I am a founding Board member with Choose New Jersey, which is an independent organization, inspired by Governor Christie, that is part of the Partnership for Action that is led by Lieutenant Governor Kim Guadagno. The goal is to attract business into the state and to retain business that is currently here, all toward the end of ensuring economic vitality and the creation of jobs. One of the unique features of Choose New Jersey is the makeup of the Board leadership. We have labor leaders around the

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table who are extremely engaged with the business community in supporting an engine here in this state that will continue to create jobs. Choose New Jersey is an example of a public/private partnership model where there is engagement between the administration, higher education and the business community, as well as labor. We have the hope that this organization will be sustained from administration to administration because it’s an economic development model that works. MDADVISOR: How important is civic engagement to you and to NJM? FLYNN: It’s very important. With New Jersey being our marketplace, we not only want to serve our policyholders with their insurance needs, but we also want to support our community. It’s not only about giving money to organizations, but we are also committed to sending volunteers and participating as a partner with local organizations such as the American Heart Association, Special Olympics of New Jersey and Junior Achievement. We go into the classroom, including me personally, with Junior Achievement and teach financial literacy in the three towns where we have offices, Parsippany, West Trenton and Hammonton. Here in the Ewing/Trenton area, where many of our employees reside, we’re helping to support Home Front in their campaign to refurbish a property so that they can have a new and improved home office and family preservation center where they will be supporting families at risk. As a company with New Jersey in our name, we’re trying to do as much as we can to support the state with civic and corporate engagement. At NJM, we live by the principles of stewardship, integrity and service. Those are the principles upon which we’ve built the company for 102 years. Maria Falca-Dodson is Vice President, Strategic Initiatives, and Janet S. Puro is Vice President, Business Development and Corporate Communications, at MDAdvantage Insurance Company.

By Steve Adubato, PhD

The healthcare landscape is constantly shifting, and one of the most significant changes in recent years has been how patients use technology to manage their own health. More and more patients are turning to the Internet to research symptoms, diagnoses and other information regarding a particular condition or illness they may be facing. In fact, the Internet is increasingly becoming the primary source for general and specific health information. Like it or not, the Internet has profoundly changed the patient-doctor relationship, and doctors must embrace the effects on patient care and learn how to incorporate the Internet into their own strategic plan for providing exceptional patient care.

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“Google claims that one of every 20 searches on its search engine is conducted to obtain health-related information. Although this can at times make patient visits more difficult, there are advantages as well.”

Since we now know the status quo is not an option, what specifically can you do to ensure you are meeting and exceeding your patients’ individual needs while also continuing to brand yourself in the marketplace? Consider the following: Provide clear, concise and consistent messages. All of us are inundated with commercials on television or pop-up ads on our computers promoting a certain medication or treatment that will make some sort of tremendous difference in our lives. More patients than ever before are getting inundated with mixed messages regarding their treatments, benefits and medications. So, who is responsible for helping these confused patients make sense of the mixed messages they are receiving? Although a team of professionals–nurses, front office staff, office managers and physician assistants–plays a significant role in the overall care of each patient, when it comes down to successful leadership, there can be only one captain steering the ship, and in the medical community, that captain is you, the physician. It is your job as the leader of your team to ensure that consistent and accurate

messages are being communicated to your patients at every level, including the marketing and branding of you and your practice and the dissemination of medical advice to the nurses and physician assistants supporting your efforts. This also means that you, as the leader, must pause to assess and adjust just exactly who your audience is (aka, your patients and their families) and what they expect from you and your team. You are your patient’s best advocate for his or her scope of care and treatment. You must communicate directly to your team what is and is not acceptable in connection with their interaction with patients, and that includes the type of communications that occur online. Embrace the positives of the Google culture. When patients visit your office, they likely have already researched their symptoms online and may already have a diagnosis in mind. Google claims that one of every 20 searches on its search engine is conducted to obtain health-related information. Although this can at times make patient visits more difficult, there are advantages as well. Patients are more fluent with terms and conditions if they have conducted

MDADVISOR

online research before the actual office visit, and an educated patient increases the value of the visit. Before attempting to clear up the inevitable misconceptions or misinformation found online, the best approach is to listen to and acknowledge a patient’s concerns. Physicians must remain attentive to these underlying emotions, recognize the patient’s perspective and allow the patient to feel respected and heard. Manage your online reputation. Most doctors have come to terms with the fact that their patients routinely go online for information about health concerns, symptoms and diagnoses. The more recent trend is using the Internet as the resource of choice for patients to connect with, learn more about and even rate their doctors. Patients are writing reviews of their doctors and dentists, and the number of platforms that facilitate these reviews is growing rapidly. Websites such as HealthGrades.com, RateMDs.com, Zocdoc.com, Vitals.com and Yelp.com are among the busiest, with other physician-rating sites popping up constantly.

As with other service industries, anyone can set up an online account and express opinions about a physician. In addition to dissatisfied patients, other categories of people who are often sources of false or biased physician reviews include drug addicts upset after being denied prescriptions, patients trying to get refunds or avoid paying medical bills, medical malpractice claimants, disgruntled employees and even competitors. So far, most physicians have a limited number of online reviews, resulting in a strong sampling bias. A small number of reviews written by people motivated to communicate negative experiences can be very damaging to professional reputations. False or biased reviews are especially challenging to physicians because of HIPAA restrictions. Unlike a restaurant owner who can use the online venue to practice damage control and remedy a customer’s bad experience, a physician should never respond to an angry patient online. Whether your reviews are positive or negative, you

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need to take action to protect yourself and your practice. Negative content published about physicians and other health professionals can detrimentally affect their online reputations and the success of their practices. Therefore, you must monitor what is being communicated about you and your team on social media as well as on websites and apps where your patients are sharing their experiences with others. Your reputation management plan should include the following: • Claim your identity by routinely typing your name and your practice name into the Internet search bar (or assign the task to someone in your office). You can also create a Google Alert through Google tools (www.google.com/alerts) that will send you an e-mail alerting you to any online activity that includes your name, and you can monitor Twitter mentions (www.topsy.com). • Encourage positive reviews from your patients. Simple ways to solicit reviews include postcards at the reception desk, links to review sites in your e-mail signature and verbally requesting a review when your staff calls to check up on your patients. Remember, patients mention a doctor’s bedside manner in online forums more than any other factor. You can do a lot to inspire would-be positive reviewers by making patients feel valued. • Consider purchasing some type of reputation monitoring software. Because there are dozens of websites where physicians can be reviewed, it is simply not practical to individually search each website regularly for potentially harmful reviews. • If you find yourself in a particularly difficult situation with an online review or comment, consider engaging an online reputation management service. Because HIPAA prevents doctors from discussing patients, always consult a reputation management professional or an attorney, instead of responding to a patient’s online comments. At the very least, take critical conversations offline. Often, patients just want their concerns heard, and a professional response from your practice may even turn a negative situation into a constructive one.

“The more recent trend is using the Internet as the resource of choice for patients to connect with, learn more about and even rate their doctors. Patients are writing reviews of their doctors and dentists, and the number of platforms that facilitate these reviews is growing rapidly.” Stay connected to your patients. Physicians have the increasingly challenging job of managing not only their practice but also the individualized messaging about who they are and the services they offer. When managing your brand, consider carefully the use of your website and social media to communicate the information you want your patients to know. While you certainly need to be cautious and strategic about your use of websites and social media, you cannot ignore these important avenues of communication, because your patients are already online–and that trend is only going to continue to grow. If patients can’t find the information they need from the medical community, they will get it elsewhere. Physicians who ignore the Internet lose their voice and are left in a position of having to dispel myths and calm patients’ fears. However, physicians who choose to embrace the Internet to provide clear information and direction to patients have the opportunity to guide the content with research-based facts. Interacting and engaging with your patients in various mediums lets them know you care about them, their needs and their concerns. Physicians can no longer hide behind the strategy of ignoring the Internet. In fact, the biggest risk of social media in healthcare may be in not using it at all. Steve Adubato, PhD, is a four-time Emmy Awardwinning anchor for Thirteen/WNET (PBS) and NJTV (PBS) and has appeared on the TODAY Show, CNN and FOX as a media and communication expert.

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TOP

TIPS

A broker’s role in a physician practice is significant because insureds rely in large part on their brokers to determine the appropriate types and amounts of coverage they should obtain and then to help place that coverage with a particular insurer. This tendency of insureds to rely on their brokers has grown over time, and the importance of the broker’s role has grown with it as insurance programs have become more complex. Because insurance coverage can be the largest expense for a medical practice, selecting and maintaining a long-term relationship with a conscientious insurance broker is an especially important decision that should be a high-priority concern of every physician. By law, insurance brokers owe a duty of care to their policyholder clients; they are legally required to represent a

FOR PHYSICIANS:

GETTING THE MOST OUT OF YOUR PARTNERSHIP WITH YOUR BROKER By Donald M. Chervenak, MD

policyholder’s interests. They have a duty to: 1) have the degree of skill and knowledge requisite to his or her employment responsibilities, 2) exercise good faith and reasonable skill, care and diligence in the execution of his or her employment responsibilities, 3) possess reasonable knowledge of available policies and terms of coverage in the area in which the insured seeks protection and 4) either procure the coverage necessary for the client’s exposure or advise the client of his or her inability to do so. Having a strong relationship with a conscientious and knowledgeable broker is a valuable asset to you and your practice. Make sure you are getting the optimal level of service from your broker by following these practical tips. While some may seem simple or self-evident, they are important nevertheless, and each step should not be overlooked.

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TIP

Comparison shop. When your policy is up for renewal, discuss with your broker what carriers he or she intends to get quotations from that year on your behalf. If you are interested in a particular carrier that you may or may not have considered in the past, be sure to request information on that carrier from your broker. Compare apples to apples. When your broker presents proposals to you, make sure you have a clear understanding of the differences among policies so that you can make an educated decision. Make sure you understand the differences that exist between the coverage types (i.e., claims-made versus occurrence) and make sure that the limits are comparable. In addition, some carriers have incorporated new types of coverage into their policies that protect physicians and their practices from the regulatory risks associated with data breaches, HIPAA violations and billing and coding errors. And even beyond the coverage, find out what types of value-added services are available from each carrier, including risk management services. Share your coverage concerns and priorities. In order for your broker to find the best coverage that suits your needs, he or she needs to understand your risk aversion, your top liability concerns and the factors imperative for your peace of mind.

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TIP

Define your needs and expectations clearly. A broker who understands both the client and the industry does a better job of representing the client in the marketplace. Your brokerâ&#x20AC;&#x2122;s primary responsibility is to pay attention to whatâ&#x20AC;&#x2122;s going on in the marketplace, to know what options are available and to keep up on any changes that are going to affect your coverage.

TIP

Consider your relationship a partnership. Building and maintaining a strong relationship with your broker takes a concerted effort on both sides. Make sure you are putting in the time to communicate with your broker on an ongoing basis, not just at renewal.

TIP

Ask many questions. Your broker knows a lot of information about your market and the carriers available to you. Capitalize on this by asking as many questions as you need to feel comfortable with your decision. Maintain an ongoing dialogue. A conscientious broker does not consider his or her work done once a policy is bound but instead keeps an open dialogue with his or her clients. You should receive information throughout the year that will help to protect you and your practice, including opportunities for premium discounts available through your carrier, as well as updates on new services and coverage options. Communicate your plans for the future. Consult with your broker any time you anticipate a change in your professional situation that may impact your insurance coverage. For instance, physicians reaching retirement age will want to understand the tail coverage options of their carrier. Physicians considering selling their practice to a larger group or healthcare organization will want to understand the implications the change will have on their ability to select insurance coverage. There may even be new coverage options that you didnâ&#x20AC;&#x2122;t even know existed, such as coverage tailored to employed physicians. Focus on risk prevention. Beyond providing assistance with selecting an insurance carrier, your broker can proactively assist with protecting the physicians in your practice. He or she can alert you to potential liability issues as they arise to make sure you are taking the appropriate precautions.

Donald M. Chervenak, MD, FACOG, is an obstetrician/ gynecologist at Florham Park OB/GYN in Florham Park, New Jersey.

By Sarah Armenia

From the MCAT to licensing exams and, ultimately, to maintenance of certification, testing is ubiquitous in the medical profession. As a new medical student, I have just started out on this standardized testing journey that I’m beginning to realize may have more to teach me than just memorized facts. For me, registering for the MCAT exam was a particularly emotional experience, as it represented the first defining step I took in my transition from a physician assistant student to a medical student. I began the process of studying for the MCAT with a resolve I had never seen before in myself, surpassing even the level of concentration I had attained in my musical training at Juilliard. It was not until after the entire process was over that I truly realized how important the experience had been in my development as a future physician. It takes a great deal of courage to walk into the MCAT and have years of studying tested in a single session; however, this is the reality we ultimately face in practice. Standardized tests are harbingers of the critical decisions we will make as we continue to have our knowledge tested on a daily basis. If you ask any doctor about the experience of studying for the MCAT, you are likely to be met with a mix of groans and sighs of relief that the experience is over. After being told during your entire pre-medical career that this is the most important test of your life, the pressure is intense. Months of stress and agony are met with an abrupt, unceremonious ending, as your efforts are quantified and presented on a sheet of paper–or, now, on a computer screen. A select group will skip off to medical school only to be met with a chilling

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reality–it is now time to start thinking about USMLE Step 1. It is easy to see why students can become fatigued by the seemingly relentless standardized testing encountered in the process of becoming a licensed physician. The process of studying can be emotionally draining and certainly tests one’s sanity. Indeed, standardized testing has been under increasing scrutiny as to whether or not it is an accurate predictor of future clinical performance. Although no one can ever be totally defined by a score on a single exam, by looking at standardized testing as a process instead of a single event and an isolated score, the resulting academic and personal development of the student can be realized. Will this relentless testing ever end? The harsh truth is: No. We will be evaluated on a daily basis by healthcare administration and even our patients on our fund of knowledge and delivery of care. Maintenance of certification requirements ensure that board-certified physicians will continue to be evaluated and assessed throughout their entire careers. And so, it is a challenge for all of us to make peace with that fact and to use it to our advantage as we move forward in our chosen fields of medicine. Testing is a necessary tool in demonstrating our abilities and ascending to the next stages of our careers in medicine. By embracing the process and maximizing the gains made during it, we can find success long after we read our score reports. Sarah Armenia is a graduate of the Seton Hall Physician Assistant Program, a medical student at Rutgers New Jersey Medical School, Class of 2019, and a 2014 Edward J. Ill Excellence in Medicine Scholarship Recipient.

MDAdvantage 100 Franklin Corner Road Lawrenceville, NJ 08648-2104

2016

EDWARD J. ILL EXCELLENCE IN MEDICINE AWARDS 速

RECOGNIZING EXCELLENCE

HONOR YOUR PROFESSION BY HONORING YOUR PEERS. Nominations Now Being Accepted. We are seeking your help in recognizing those exemplary physicians and leaders whose dedication to patient care, education, research and public service have significantly impacted the delivery of healthcare in New Jersey and around the nation. Nominations will be accepted through August 14, 2015. Log on to www.EJ Iawards.org to view the nomination guidelines and submit your application online. For additional information, contact us at 609-803-2350.