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T h e O f f i c i a l P u b l i c a t i o n o f t h e Lo s A n g e l e s Co u n t y M e d i c a l A s s o c i a t i o n

REPORTING ON THE ECONOMICS OF HEALTHCARE DELIVERY

A PUBLICATION OF PNN www.PhysiciansNewsNetwork.com

RISK TIP:

Don’t Be Defective in Dealing with Device Alerts and Recalls

LAW

DATA PRIVACY AND THE

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A N o r c A l G r o u p c o m pA N y


a pr i l 2014 | TAB LE OF CONT ENT S

Volume 145 Issue 4

6 DEPARTMENTS

16 16

6 Front Office | Practice Management Tips, hints, advice and resources

8 PNN | NEWS IN REVIEW

The latest headlines impacting the economics of healthcare delivery in Southern California

COVER STORY

10

data privacy and the law

If your medical practice has not updated your data compliance forms, it is time to engage in data protection compliance efforts. However, HIPAA is not the sole concern. There is a growing pool of regulations connected to data privacy.

16 United We Stand | AT WORK FOR YOU LACMA and CMA membership at work for you

From Your Association 4

President’s Letter | marshall morgan, MD

14 CEO’s Letter | Rocky Delgadillo

Physician Magazine (ISSN 1533-9254) is published monthly by LACMA Services Inc. (a subsidiary of the Los Angeles County Medical Association) at 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017. Periodicals Postage Paid at Los Angeles, California, and at additional mailing offices. Volume 143, No. 04 Copyright ©2012 by LACMA Services Inc. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to Physician Magazine, 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 9001 7. Advertising rates and information sent upon request.

A P R I L 2014 | w w w. p h y s i c i a n s n e w s n e t w o r k .c o m 1


editor

Sheri Carr 559.250.5942 | sheri@physiciansnewsnetwork.com ADVERTISING SALES

display ad sales / director of sales

SALES EXECUTIVE

CLASSIFIED ad sales

editorial advIsory board

The Los Angeles County Medi-

Headquarters

cal Association is a profes-

Physicians News Network Los Angeles County Medical Association 707 Wilshire Boulevard, Suite 3800 Los Angeles, CA 90017 Tel 213.683.9900 | Fax 213.226.0350 www.physiciansnewsnetwork.com

sional association representing physicians from every medical specialty and practice setting as well as medical students, interns and residents. For more

LACMA Officers President

President-elect Treasurer Secretary

than 100 years, LACMA has

Immediate Past President

been at the forefront of current medicine, ensuring that its members are represented in the

CMA Trustee

Councilor - District 9

Councilor - District 2

med student Councilor/usc keck Councilor-at-large

young physician councilor

ment relations and community

Councilor - District 5

cma trustee

ethnic physicians commitee representative Councilor - District 1

Councilor - District 17

efforts in both Los Angeles

Councilor - District 14

County and with the statewide

Chair of LACMA Delegation

California Medical Association,

Councilor - District 6

your physician leaders and staff

Councilor-at-large

Councilor - District 7

strive toward a common goal– that you might spend more time treating your patients and less time worrying about the challenges of managing a practice.

Marshall Morgan, MD Pedram Salimpour, MD Peter Richman, MD Vito Imbasciani, MD Samuel I. Fink, MD LACMA BOARD OF DIRECTORS

areas of public policy, govern-

relations. Through its advocacy

Christina Correia 213.226.0325 | christinac@lacmanet.org Kirk Bennett 925.272.0857 | kbennett@physiciansnewsnetwork.com Dari Pebdani 858.231.1231 | dpebdani@gmail.com David H. Aizuss, MD Troy Elander, MD Thomas Horowitz, DO Robert J. Rogers, MD

Councilor-at-large Councilor - SSGPF

Councilor - District 3

Councilor - District 10 Councilor - SCPMG

Alternate med student Councilor/ucla RESIDENT/FELLOW Councilor

cma trustee

Alternate Resident/Fellow Councilor Councilor-at-large

Councilor-at-large

cma trustee (resident)

David Aizuss, MD William Averill, MD Boris Bagdasarian, DO Erik Berg Stephanie Booth, MD Steven Chen, MD Jack Chou, MD Troy Elander, MD Hector Flores, MD C. Freeman, MD Sidney Gold, MD William Hale, MD David Hopp, MD Fred Ziel, MD Lawrence Kneisley Kambiz Kosari, MD Howard Krauss, MD Maria Lymberis, MD Carlos E. Martinez, MD Nassim Moradi, MD Ashish Parekh, MD Jennifer Phan Heidi Reich, MD Peter Richman, MD Sion Roy, MD Michael Sanchez, MD Nhat Tran, MD Sion Roy, MD

LACMA’s Board of Directors consists of a group of 30 dedicated physicians who are working hard to uphold your rights and the rights of your patients. They always welcome hearing your comments and concerns. You can contact them by emailing or calling Lisa Le, Director of Governance, at lisa@lacmanet.org or 213-226-0304.

Subscriptions Members of the Los Angeles County Medical Association: Physician Magazine is a benefit of your membership. Additional copies and back issues: $3 each. Nonmember subscriptions: $39 per year. Single copies: $5. To order or renew a subscription, make your check payable to Physician Magazine, 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017. To inform us of a delivery problem, call 213-683-9900. Acceptance of advertising in Physician Magazine in no way constitutes approval or endorsement by LACMA Services Inc. The Los Angeles County Medical Association reserves the right to reject any advertising. Opinions expressed by authors are their own and not necessarily those of Physician Magazine, LACMA Services Inc. or the Los Angeles County Medical Association. Physician Magazine reserves the right to edit all contributions for clarity and length, as well as to reject any material submitted. PM is not responsible for unsolicited manuscripts.


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1

LACMA members, call 800-842-3761 to see if you can save!

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2 Source: Business Insurance, https://www.businessinsurance.com/ article/20130925/NEWS08/130929901

SPONSORED BY:

Mercer Health & Benefits Insurance Services LLC • CA Ins. Lic. #0G39709 67103 (4/14) Copyright 2014 Mercer LLC. All rights reserved. 777 South Figueroa Street, Los Angeles, CA 90017 • 800-842-3761 CMACounty.Insurance.service@mercer.com • www.CountyCMAMemberInsurance.com


PR ES ID ENT ’S L ET T ER | MARS HALL MORGA N, MD

For n e ar ly 30 years, the Medical Board of California operated a Physician Diversion Program to protect patients while physicians suffering from drug and alcohol misuse were undergoing monitored rehabilitation. In 2008, the Board discontinued the Diversion Program and abandoned all efforts at rehabilitation. It now attempts to protect the public only by punitive actions against the licenses of physicians. This change positioned California as one of only a few states without access to an integrated, accessible system of services and resources for impaired physicians. This is a serious problem: Many, if not most, hospital Physician Well-being Committees, and nearly all medium and small physician groups, do not have access to the expertise and resources required to support physician health while assuring quality care to patients. There is indirect but persuasive evidence that a large number of California physicians who need such services are not receiving them. In 2009, the California Medical Association, the California Hospital Association and a number of defense-oriented malpractice firms pooled resources to create California Public Protection and Physician Health Inc. (CPPPH), an independent 501(c)(3) organization with funding sufficient for two to three years. Their goal was to write and pass legislation to establish, within state government but independent of the Medical Board, an entity that would replace the function previously served by the Diversion Program but with responsibility to address physician health not limited to drug and alcohol abuse but also medical and psychiatric issues. That could not be accomplished because of opposition from powerful individuals in the state

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government who opposed it. In the absence of legislative action, leaders, members and staff of CPPPH saw a profound need for a substantive, coherent, statewide mechanism to address physician health. They have done so. They created four regional networks and sponsor a recurrent series of regional conferences to train and mentor the people who actually do the work of supporting the wellness and well-being of doctors: members of the Physician Well-being Committee of hospital medical staffs and those who do equivalent work for medical groups. The CPPPH can and does provide those committees with the resources and expertise needed to safely and effectively identify, counsel and monitor physicians with substance abuse issues or disabilities related to medical and psychiatric illnesses, aging and disruptive behavior. CPPPH is our best hope for an appropriate, effective, statewide physician health process. The initial funding provided in 2011 was intended as a bridge to legislation that could not be accomplished. It is crucial that CPPPH continue the work it is doing for physicians and patients. They have created a two-year plan to develop sources of income, e.g., consulting services, identification of qualified service providers, conferences, grants and corporate sponsorships, which will allow the organization to become self-supporting. In the meantime, CPPPH must now engage in a second and final round of fund-raising, this time as a bridge to self-sufficiency. Part of the bridge has been constructed in the form of contributions from corporations and physician organizations, including LACMA, but more is needed. I strongly suggest that you visit the CPPPH website at CPPPH.org. After you explore the site, and see what they are doing, you may, like me, be moved to hit the “donate now” button at the bottom left of the webpage and make a generous contribution to this extraordinarily worthwhile organization. Marshall Morgan, MD, is a professor and chief of emergency medicine at the Ronald Reagan UCLA Medical Center and director of emergency medicine center at the David Geffen School of Medicine at UCLA. He is the 142nd president of the Los Angeles County Medical Association.


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PRACT I CE MA NAG EMENT | FRONT OFFICE

risk tip

Don’t Be Defective in Dealing with Device Alerts and Recalls Device manufacturers often contact physicians with issues regarding implantable devices.

Contact can range from an alert of issues with the device to a U.S. Food and Drug Administration (FDA) recall. The FDA classifies recalls into three categories: • Class I recalls are the most serious. They involve a health hazard with a reasonable probability that the use of the product will cause serious adverse health consequences or death. • Class II recalls present a remote possibility of adverse health consequences from the use of the product. • Class III recalls involve a situation where the use of the product is not likely to cause adverse health issues. The FDA has mandated that manufacturers must include a unique device identifier (UDI) on all devices, starting with implantable devices. Implementation of the UDI system is expected to begin in 2014. UDIs can be captured in the electronic health record and used for device-tracking over time. Physicians can be at risk for a malpractice suit if they do not handle defective device alerts and recalls properly. Take steps prior to and after surgery to decrease this risk and promote patient safety in case of an eventual device issue. Before a device is implanted, involve the patient in an informed consent discussion that encompasses the possible complications and side effects of device implantation. Once the device has been implanted, dictate in the postoperative report the 6 PHYSICIAN MA G A Z INE | A P R I L 2014

type of implanted device and its serial number or UDI, and copy the post-op report to the office record. Note the UDI number on the patient’s card in the office record on the first post-op visit. Assign a specific individual in your practice the responsibility of receiving, assessing, and acting on device recall information. If you receive a recall notification, follow these tips: • For Class I recalls, work with the surgical facility where the device was implanted to verify which patients have the device. Notify the patients immediately, and determine the appropriate course of action. • For Class II or III recalls, it is appropriate to inform patients of their options. Contact your patient safety risk manager to see if he or she can provide a sample letter to send to patients. • Document the date the notice was received, the source of the notice, the device or product name and model number, the names of patients in the practice who were notified, and actions taken. Monitor patient compliance with and response to the notification. • Follow the established process for properly handling explanted devices. Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.


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TO LEARN MORE VISIT: athenahealth.com/socaprint † This Guarantee covers ICD-10-CM codes and does not cover the ICD-10-PCS code set. Eligibility for the cash advance is limited to independent practices that (i) are live on athenahealth’s athenaOne services, or on our athenaCollector, athenaCommunicator and athenaClinicals services, by June 30, 2014; (ii) have an overall average days in accounts receivable (DAR) of more than 60 days in regard to transactions occurring on or after October 1, 2014; (iii) have Client-responsible DAR of seven days or less for such month; and (iv) are not in breach of the athenahealth Master Services Agreement; provided, however, that the total aggregate amount of cash advances made by athenahealth to its clients will not exceed $50 million dollars in the aggregate and cash advances made to each practice will be capped based on the number of MDs and mid-level providers in such practice. Additional terms and conditions apply; please see your sales representative for more information. †† If you don’t receive the Federal Stimulus reimbursement dollars for the first year you qualify, we will credit you 100% of your EHR service fees for up to six months until you do. This offer applies to HITECH Act reimbursement payments only. Additional terms, conditions, and limitations apply.


phy s i c i a nsnewsnetwo r k . co m | NEWS i n r evi ew

Read Full Stories and Subscribe to the PNN eNews BulletinS at www.PhysiciansNewsNetwork.com A SERVICE OF

NEWS NETWORK

The LOS ANGELES County Medical Association

PNN | LOCAL • TIMELY • RELEVANT

reporting on the economics of healthcare delivery

Health Plans Liable for Negligently Delegating Risk Los Angeles physicians who initially lost their bid to recoup money from a health plan when a Los Angeles County Superior Court judge dismissed the case have been allowed to proceed with their claim. In a precedent-setting opinion in Centinela Freeman Emergency Medical Assocs. v. Health Net et al, a California appellate court is allowing Centinela emergency care providers to move forward with their demands against the health plans that delegated risk to La Vida Independent Practice Association (IPA) knowing the association was in financial trouble. The ruling means California health plans can be held liable when they negligently delegate risk to an IPA that subsequently fails to reimburse providers. most read

Local Company Seeking LA Doctors for Virtual Office Visits Dr. Quang Dinh Vo is trying to recruit LA County doctors to use his new company, Qwikvisit, to visit with their patients using telemedicine. “I work in hospitals in Orange County and Los Angeles, and my goal is to get colleagues to create their profile on Qwikvisit and their patients to participate,” Dr. Vo told PNN. He expects to be up and running by April. By using telemedicine, doctors can bill for each visit using a modified billing code and can reduce overhead costs because no staff is needed to sign patients in and out. LACMA CEO: Duals Confusion Continues with DHCS Official’s Retirement Jane Ogle, deputy director of the Department of Health Care Services, recently wrote an email to LACMA’s leaders informing them of her retirement effective as of Feb. 28. Ogle’s retirement comes at a time of great uncertainty and confusion over the planned implementation of the dual eligible program for Medicare and 8 PHYSICIAN MA G A Z INE | A P R I L 2014

Medi-Cal patients called Cal MediConnect. On Jan. 28, leaders of LACMA and the Los Angeles County Podiatric Medical Society sent a letter to Ogle reiterating concerns that the proposed project would threaten the medical care of 200,000 mostly elderly, low-income and disabled patients in LA County and expressed their disapproval of the department’s failure to provide optout forms to patients. “Jane Ogle opted out on finishing the job with Cal MediConnect, and the confusion continues,” said Rocky Delgadillo, LACMA’s CEO. Survey: What’s the Average Wait Time to See LA Doctor? A recent survey from Merritt Hawkins found it takes on average 12 days to schedule an appointment with a physician in Los Angeles. On average, in Los Angeles it took 12 days to see a cardiologist; 14 days to see a dermatologist; 8 days to see an OB/GYN; 7 days to see an orthopedic surgeon; and 20 days to see a family doctor. Los Angeles wait times went down from 24 days in 2009 and 22 days in 2004 to 12 days in 2013. The average wait time to see a family practitioner fell from 59 days in 2009 to 20 days in 2013, the survey reported. The researchers attributed the improvement to practices employing more midlevel providers like nurse practitioners, better healthcare IT to help with scheduling and an increase in the number of urgent care centers—a rising trend in Los Angeles County and elsewhere. Cedars Sinai Researchers Study Patient Satisfaction, Postsurgical Pain A new study recently presented by a researcher and physician at the Cedars Sinai Medical Center in Los Angeles found that a patient’s perception of postsurgical pain is one of the most influential factors in evaluating physicians and hospitals. As patient satisfaction becomes more closely linked to reimbursement, physicians have to take these findings into account; however, pain management drugs have been getting bad publicity lately due to overprescription and cases of drug overdose.


WE TREAT DOCTORS RIGHT! 

reporting on the technology of healthcare delivery

Fitbit to Recall Force Wristband

Fitbit, a wearable tech maker, says it’s issuing a recall of its Force wristband after users reported issues with skin irritation. CEO and co-founder James Park posted a letter on Fitbit’s website stating that the company will no longer sell the Force and plans to issue full refunds. “While only 1.7% of Force users have reported any type of skin irritation, we care about every one of our customers,” says Park. “On behalf of the entire Fitbit team, I want to apologize to anyone affected.” The recently launched Fitbit Force is a wristband that lets you track activity and sleep and allows you to sync your results and review them through your computer or smartphone.

BevMD Introduces Beverage to End Pre-op Fasting

BevMD, a medical beverage company focused on optimizing patients’ pre-surgical experience, announced its first patented beverage. This drink can be safely consumed about two hours prior to surgery. It hydrates, nourishes, and assists in the recovery process and can improve post-operative outcomes. Clearfast, a carbohydrate-rich beverage designed and patented by anesthesiologist M. Lou Marsh, MD of BevMD, is the first product available in the United States that is specifically formulated for consumption by pre-operative patients. “More than 80 million surgical and diagnostic procedures requiring some form of anesthesia or sedation are performed annually in the U.S. alone,” said Dr. Marsh. “Though the risk of death or disability from the aspiration of stomach contents is extremely low, a majority of patients are still subjected to traditional, rigorous pre-operative fasting protocols. Patient noncompliance with fasting rules can lead to costly surgery delays, cancellations or, when undetected, can result in devastating regurgitation and aspiration. BevMD is leading the way to changing how millions of patients will be prepared for surgery every day across the country.” Clearfast was granted the American Society of Anesthesiologists’ seal of compliance with all of its fasting guidelines.

Read Full Stories and Subscribe to the PNN eNews Bulletins at www.PhysiciansNewsNetwork.com/iPNN

 

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  A P R I L 2014 | w w w. p h y s i c i a n s n e w s n e t w o r k .c o m 9

news i n r ev i ew | phy si c i a nsnewsnetwo r k . co m

 


News flash: Data privacy is a big deal.

LAW

DATA PRIVACY AND THE

By James Eischen, partner, Higgs Fletcher & Mack, and Austin Rutherford, Intern

The Federal Trade Commission (FTC) recently released a 2013 report again ranking identity theft as the top U.S. consumer complaint (nearly 300,000 complaints). U.S. Attorney General Eric Holder renewed the call for a U.S. national data breach notification law in response to ongoing concerns with identity theft plus the recent Target cyber-attack that accessed 40 million Americans’ credit card information. The Target event triggered consumer class actions, and now banks are suing Target for increased administrative costs (refunding transactions, opening new accounts, freezing accounts or blocking transactions). Attorney General Holder correctly observes that data breaches are common. The European Union (EU) recently called for strengthening EU data protection laws. Among requested improvements were a “general omnibus U.S. privacy law” and improved trust in EU-U.S. personal data transfers. This makes sense given evidence that the National Security Agency secretly eavesdropped on German Prime Minister Angela Merkel’s mobile phone calls. The German Federal Minister of Justice and Consumer Protection announced this month that consumer rights organizations will soon be able to sue businesses directly for breaches of German data protection law. Recently, the Financial Times reported that French Prime Minister Nicholas Sarkozy was taped during what were believed to be confidential internal government discussions (although not by the NSA). Waves of regulations are playing catch-up to rapidly escalating data breach events. Understanding how to navigate these regulations can avoid disaster. Why are there so many data privacy events and regulations? navigating the electronic ocean Communications and commerce evolved into the cloud, a digitized sea of data connecting every country and government. Maritime commerce once triggered the need to understand and manage international laws (and pirates and security concerns). Today we navigate an electronic ocean that must be rendered as secure as possible for commerce. This is a complex and global process. But look no further than California. In February 2014 the Torrance office of Sutherland Healthcare Solutions, a medical billing company, suffered a break-in with computer and hard-drive theft causing health data loss for up to 168,500 patients.

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The U.S. Office of Inspector General (OIG) has called for increased HIPAA audits and increased OCR HIPAA oversight. Those audits will happen. Will HIPAA-regulated medical practices, and businesses that may not realize they are HIPAA regulated, be ready? With sufficient effort toward HIPAA compliance, the answer should be “yes.” But neither medical practices nor businesses with decipherable electronic health information should assume that borrowed forms, Internet browsing for templates, or crossed fingers suffice.

is your practice really ready? Medical practices are accustomed to HIPAA regulatory compliance concerns. The HIPAA Final or Omnibus Rule, enacted in 2013, rendered virtually every person or entity holding decipherable electronic health information a “covered entity” subject to HIPAA regulation. In a sense, medical practices have an advantage: They are already familiar with steering through the dangerous waters of HIPAA Privacy and Security Rules (that is, keeping electronic medical information private and enacting documented efforts to maintain that privacy in scale to the business unit’s resources and technological platforms). But medical practices (and frankly any business with electronic health data) must realize that with data privacy a global issue, HIPAA compliance will become the subject of increased audits and regulatory action. In 2013, the Health and Human Services (HHS) Office for Civil Rights (OCR) fined a Massachusetts dermatologist $150,000 after an unencrypted thumb drive containing ePHI of 2,200 individuals was stolen from an employee’s car. The violations of HIPAA included an impermissible disclosure of ePHI (Privacy Rule violation), a failure to conduct an adequate risk analysis (Security Rule violation), and a failure to train workforce members (Security Rule violation). Other enforcement actions include Puerto Rico fining a plan subcontractor $7 million for mailings addressed to patients with identifiable health information in plain view. Last year the OCR fined an Arizona cardiologist $150,000 for failing to use a sufficiently secure online calendaring system.

more changes This year, HIPAA was the subject of yet another adjustment, a 2014 rule entitling patients to directly secure electronic laboratory results from labs. Without question, medical providers must more persistently watch and regularly update their HIPAA compliance forms (notice of privacy practices, business associate agreements with nonemployee contractors receiving ePHI, and internal risk assessment memo to reflect reasonable evalua-

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data pr i vacy & the law | fe atu r e

The California Attorney General’s Office recently sued Kaiser Permanente for delayed consumer notification of a non-health record data breach under California’s data breach notification statute. Forty-six states plus Washington, D.C., have data breach notification laws, along with New Mexico developing them. The California Attorney General has created both an eCrime Unit and a Privacy Enforcement and Protection Unit to pursue charges of violating the state and federal laws outlined in this article. You simply cannot ignore data privacy compliance!


fe atu r e | data pr i vacy & the law

Here are brief summaries of federal and state laws to consider: Genetic Information Nondiscrimination Act (GINA): Federal law prohibiting health plans from requesting or requiring an individual to take a genetic test, and from charging an individual higher premiums based solely on genetic predispositions. GINA also amends HIPAA Privacy Rule to clarify that genetic information is protected health information which cannot be used or disclosed for underwriting purposes. Children’s Online Privacy Protection Act (aCOPPA): Federal law requiring any operator of a website that collects and maintains personal information from children under 13 years old to post a privacy policy, provide parental notice, and obtain verifiable consent to collect the children’s information. Gramm Leach Bliley Act: Federal law requiring covered financial institutions to develop an information security program that is comprehensive, obtainable in written form, and appropriate to the size, complexity, and the nature of its activities. California Online Privacy Protection Act (CalOPPA): California state law requiring website operators doing business with California residents to create and maintain specific privacy policies. Most recently, and the first of its kind, CalOPPA requires the operator to explain its policies and procedures toward Do Not Track signals. California Shine the Light Act: California law requiring businesses collecting personal information from California consumers to give the consumer a choice to share the information, and provide a means for the consumer to know to whom and what categories of their information have been shared. California AB 1950: California law requiring a covered business to use “reasonable security” measures to protect personal information. These security measures can be customized by the business appropriate to the nature of the information. A business that discloses personal information about a California resident must require, by contract, the third party to implement equally reasonable security procedures and practices. California Breach Notification Law: California law requiring California businesses, or businesses that own or license computerized data that includes personal information of California residents, to disclose the discovery, or reasonable belief, of a breach of personal information. As Kaiser discovered, the state is willing to litigate to help stimulate improved compliance with this law. California “Social Eraser” Law: California state law requiring all operators of websites directed to minors (California residents under 18), or with actual knowledge that minors use the website, to provide the option for minors to erase content upon request. California Attorney General Recommendations to Mobile App Developers (January. 2013) outlines the California AG’s recommendations on minimizing data leak surprises for state citizens from unexpected privacy disclosure practices. App developers should: (1) create a checklist of data the app uses or accesses, (2) limit data collection to that necessary for basic functionality, (3) develop a clear, simple, and conspicuous privacy policy, and (4) use enhanced measures to draw user’s attention to data privacy practices. And California is not alone in this effort; other state attorneys general are acting to demand or stimulate improved privacy compliance. California Confidentiality of Medical Information Act (CMIA): California state law seeking to protect an individual’s medical information, in either electronic or paper format, from unauthorized disclosures to third parties by requiring patient authorization for disclosure. While some California physicians may still think they avoid HIPAA by remaining “all paper,” they may underestimate how frequently paper records are digitized, and may also fail to understand that California’s version of HIPAA is not avoided with paper records. California Patient Access to Health Records Act (PAHRA): California law giving patients the right to see and copy their medical records (with some exceptions) that are maintained by healthcare providers. Patients may also request changes to records they believe are inaccurate or incomplete. Federally, HIPAA/HITECH mandates patient access to electronic healthcare records.

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tions of security measures as new technology solutions are adopted). If your medical practice has not updated your data compliance forms, or you are a business that holds decipherable health data without realizing HIPAA regulates you: It is time to engage in data protection compliance efforts. Do not let your ship sink under the weight of avoidable data leak regulations and litigation. Do not assume HIPAA is the sole concern. As referenced above, there is a growing pool of regulations connected to data privacy. And privacy regulation is by no means limited to the healthcare industry. It has become a basic component of doing business in corporate America, and internationally. stay active and updated Regulations can trigger frustration, and they can protect important fundamental rights. Piracy can seem romantic or entertaining from a distance, until you are a victim. Then it becomes very real, immediate and dangerous. The rapidly increased global interest in data privacy compliance means that your HIPAA compliance cannot be passive or presumed. It must be active and updated. Electronic events occur with rapidity unthinkable in prior times. That means your ability to be seaworthy in the digital ocean will be tested by regulators, and criminals. You may have very little time to steer clear of hazards. More than ever, your passengers expect you to run a tight ship. We all know how that movie ends about the beautiful unsinkable ship without sufficient lifeboats that could not turn quickly enough to avoid an iceberg in icy water. A partner with Higgs Fletcher & Mack, LLP, James J. Eischen Jr. is a California attorney with over 27 years of experience. A graduate from the University of California at Davis law school, his expertise includes representing medical groups/ physicians, software developers, Internet platforms, telemedicine solutions, and device manufacturing companies regarding all aspects of reimbursement and data protection compliance. Over the last four years, Mr. Eischen became a national expert in structuring consumer- and patient-funded models for delivering innovative healthcare solutions. He provides healthcare compliance presentations at American Association of Private Physicians (AAPP) and World Link physician conferences throughout the country. His practice includes general corporate business planning and real estate law for a wide variety of U.S. and international commercial interests. An intern at Higgs Fletcher & Mack, LLP, Austin Rutherford is a second-year law student at the University of San Diego School of Law. He is interested in focusing his future career on business transactions and emerging companies. He graduated with a cum laude degree in philosophy and political science from Santa Clara University in 2012.

______________________________

http://www.ftc.gov/news-events/press-releases/2014/02/ftc-announces-top-national-consumer-complaints-2013 Cal Civ. Code §§ 1798.29, 1798.82 http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/genetic/ 15 U.S.C. §§ 6501–6506; see also Federal Trade Commission, 6-Step COPPA Compliance Plan for Business, http://business.ftc.gov/documents/bus84-childrensonline-privacy-protection-rule-six-step-compliance-plan-your-business Amended various provisions of titles 12 and 15 of the United States Code. Cal. Bus. & Prof. Code §§ 22575–22579. Cal. Bus. & Prof. Code § 22575(b)(5). Cal. Civ. Code § 1798.83. Cal. Civ. Code 1798.81.5. Cal Civ. Code §§ 1798.29, 1798.82. Cal. Bus. & Prof. Code §§ 22580–22582. Kamala Harris, Privacy on the Go: Recommendations for the Mobile Ecosystem, http://oag.ca.gov/system/files/attachments/press_releases/privacy_on_the_go.pdf? Cal. Civ. Code §§ 56.05–56.37. Cal. Health & Safety Code §§ 123100-123149.1. Cal. Health & Safety Code § 123111.

HIPAA Violations and Enforcement

Failure to comply with HIPAA can result in civil and criminal penalties including: Civil Penalties The Secretary of the Department of Health and Human Services (HHS) has discretion in determining the amount of the penalty based on the nature and extent of the violation and the nature and extent of the harm resulting from the violation. The Secretary is still prohibited from imposing civil penalties (except in cases of willful neglect) if the violation is corrected within 30 days (this time period may be extended). Criminal Penalties Covered entities and specified individuals who “knowingly” obtain or disclose individually identifiable health information in violation of the Administrative Simplification Regulations face a fine of up to $50,000, as well as imprisonment up to one year. Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five years in prison. Finally, offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain or malicious harm permit fines of $250,000, and imprisonment for up to ten years. Covered Entity and Specified Individuals The Department of Justice concluded that the criminal penalties for a violation of HIPAA are directly applicable to covered entities—including health plans, healthcare clearinghouses, healthcare providers who transmit claims in electronic form, and Medicare prescription drug card sponsors. Individuals such as directors, employees, or officers of the covered entity, where the covered entity is not an individual, may also be directly criminally liable under HIPAA in accordance with principles of “corporate criminal liability.” Where an individual of a covered entity is not directly liable under HIPAA, they can still be charged with conspiracy or aiding and abetting. No Private Cause of Action While HIPAA protects the health information of individuals, it does not create a private cause of action for those aggrieved (65 FR 82566). State law, however, may provide other theories of liability. A P R I L 2014 | w w w. p h y s i c i a n s n e w s n e t w o r k .c o m 1 3


a ssoci at i on ha ppen i ngs | lacm a news

ceo’s letter

This spring se a son, LACMA is looking forward to seeing many blossoming opportunities. For one, we are pleased that a number of potentially very large and influential health groups and organizations plan to join our growing organization. LACMA is also steadily gaining stature in the LA community and far beyond as seen by the rising interest of members of the media calling on LACMA’s physician members for their expertise. With all the news surrounding healthcare changes, LACMA is becoming the “go to” source’ for physicians and advocacy. Most recently, we have seen Robert Bitonte, MD, provide his valuable insights for an article in the Los Angeles Times focusing on medical necessity. In another recent LA Times story focusing on the rate of early elective deliveries of babies in hospitals, Parissa Moradi, MD, also provided key commentary. We look forward to a rising crop of LACMA members lending their expertise to all the critical issues being discussed in the media and the wider community. But even during this time of awakening, challenges remain. Among the major issues is the deeply flawed dual-eligible demonstration program, Cal MediConnect, which continues to give rise to much confusion among patients. After expressing our concerns that opt-out forms would not be provided to patients (after reassurances that patients would have a choice), LACMA received the following email from Jane Ogle, deputy director of the Department of Health Care Services. “I have enjoyed working at the DHCS and I sincerely appreciate having had the chance to work with all of you on the Coordinated Care Initiative,” Ogle said in the email, referring to her unexpected retirement. Ogle opted out on finishing the job with Cal MediConnect; patients and physicians are trying to sort through the confusing issues remaining. In this age when thousands of newly insured are entering LA County’s health system, the challenges of how to address the shortage of primary care physicians is also a huge burden on our health system. There could be a shortage of up to 45,000 primary care doctors in the U.S. by 2020, according to the Association of American Medical Colleges. But there is no solution to the crisis. Finally, the fight to preserve MICRA continues to take center stage. With certain groups pushing a measure that would raise the cap on pain and suffering damages from the current $250,000 to $1.1 million—as well as require doctors to be drug tested and to check a statewide database when prescribing certain medications to clamp down on prescription drug abuse—we need to fight for providers’ accessibility to MICRA and for patients’ rights to get the medical care they deserve. We will do our part and continue our efforts to solicit financial support to make sure that MICRA is preserved. This is the time for all physicians to get involved so we can tackle these critical issues together. Let’s strive to improve our yields during this time of change.

Rocky Delgadillo Chief Executive Officer

1 4 PHYSICIAN MA G A Z INE | A P R I L 2014


The Medical Injury Compensation Reform Act (MICRA) is California’s hard-fought law to provide for injured patients and stable medical liability rates. But this year California’s Trial Lawyers have launched an attack to undermine MICRA and its protections and we need your help. Membership has never been so valuable!

WAYS LACMA/CMA IS WORKING FOR YOU! Los Angeles physicians are saving an average of $84,770 this year. Are you a LACMA/CMA member? 2012 LOS ANGELES COUNTY MEDICAL ASSOCIATION MICRA SAVINGS CHART General Surgery

Internal Medicine

OB/GYN

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$41,775

$10,343

$49,804

$33,974

Miami & Dade Counties, FL

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$46,372

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Nassau & Suffolk Counties, NY

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$34,032

$204,684

$121,983

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$35,139

$108,020

$88,160

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$38,514

$171,504

$118,744

MICRA Savings

$104,439

$28,171

$121,700

$84,770

Los Angeles County Medical Association 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017 Phone: (213) 683-9900 Fax: (213) 226-0353 * Medical Liability Monitor - Annual Rate Survey Issue, Vol. 37, No. 10, October 2012. Annual rates with limits of $1 million/$3 million.

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White Coat Buzz

by Halaine Rose, LACMA Alliance District 2 president and CMA Alliance Board member

One hundred medical students from across California joined physicians at the California Democratic Party Convention on March 7 and 8 at the LA Convention Center. Their white coat presence along with their energy and enthusiasmwas powerful as they handed out information about the Nov. 4 anti-MICRA ballot proposition, emphasizing decreased access to care and increased costs, the inevitable consequences of the proposition. The students and physicians of numerous specialties talked about the adverse impact on patients—children, seniors, veterans, Latino groups, women’s organizations, health clinics. LACMA president, Marshall Morgan, MD, CMA president Richard Thorpe, MD, along with LACMA members David Aizuss, MD, Hector Flores, MD, Susan Reynolds, MD, and Holt Rose, MD, were seen among the doctors participating with medical students from UC Davis, UC San Francisco, UCLA, USC, UC San Diego, UC Irivine, Western, Touro and Stanford.

Medicare ICD-10 Front-end Testing Week Extended CMA STAFF

Due to the success of the first week of ICD-10 testing, Noridian has partnered with Centers for Medicare & Medicaid Services (CMS) to continue acceptance testing for EDI submitters and vendors for an indefinite period. The purpose of acceptance testing is to ensure that base system functionality and front end editing have been updated for ICD-10 and are functioning correctly. Acceptance testing will help ensure you are ready for the October 2014 implementation of ICD-10. The California Medical Association (CMA) encourages all direct EDI submitters and vendors to test with Noridian. Those who wish to take advantage of this opportunity must register. Additional information is available at the Noridian EDISS ICD-10 Resource Center. Billing experts advise physicians to start preparing for the ICD-10 transition now if they haven’t yet done so. Steps to take include upgrading software systems, testing those updated systems, training staff and updating payer contracts and fee schedules. The American Medical Association (AMA) offers free educational resources that can help physicians get started. CMA has also partnered with AAPC to provide various ICD-10 training courses to members at a discounted rate. For more information, visit www.cmanet.org/aapc.


CMA STAFF

Three major managed care payors offering coverage through Covered California have provided additional information to their contracted providers on their exchange/ mirror products. Together, these three payors – Health Net, Anthem Blue Cross and Blue Shield of California – account for approximately 75% of enrollment in Covered California products to date. The notices, sent to physicians within the past few weeks, were cobranded with Covered California and contain additional information to help providers navigate the exchange. The Health Net notice, sent on March 7, includes information such as the exchange/mirror products in which the physician is listed as participating, the product types that are offered in different regions and what information is on patient ID cards. Blue Shield sent two notices, one for its EPO and one for its PPO. The notices, sent on March 14, were very comprehensive, containing clarification on “mirror� products, a plan summary that includes copayment, coinsurance and deductible information, sample ID cards, answers to frequently asked questions, a map indicating

which product types are offered by county and additional useful tools. Anthem Blue Cross’s notice, sent on March 17, includes answers to frequently asked questions, clarifies that it is offering a narrowed network for its exchange/ mirror product enrollees, a breakdown of products sold by county, reported provider network size and a helpful plan name guide to assist practices in identifying their exchange/mirror product patients. While the notices were sent only to contracting physicians, the information may also be helpful to non-contracting physicians. To help practices navigate the exchange, CMA has also published several “Surviving Covered California� tip sheets, which are available free to members in CMA’s exchange resource center at www.cmanet.org/exchange. There you will also find many other exchange resources, including a comprehensive exchange toolkit, “CMA’s Got You Covered: A physician’s guide to Covered California, the state’s health benefit exchange.� Contact: CMA’s reimbursement helpline, (888) 4015911 or economicservices@cmanet.org.

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Located in Vista, California, Vista Community Clinic is a private, nonprofit outpatient community clinic located in North San Diego County serving people who experience social, cultural or economic barriers to health care in a comprehensive, high quality setting. Position Part-time Psychiatry MD or DO or part-time or full-time Family Medicine/Psychiatry MD or DO. Responsibilities Provide consultation-liaison services for patients suffering from both psychiatric and medical disorders by focusing on the evaluation and treatment of patients serving adolescents, adult, seniors and their families. Preferably able to serve children as well, but not required. Requirements · Graduation from a recognized school of medicine · Valid California medical license as MD or DO; Board certified or eligible · Authorized to practice psychiatry in California · Certified as a diplomat in the American Board of Psychiatry and Neurology in psychiatry · Completion of a psychiatric residency or family medicine/psychiatry residency in an ACGME approved residency program · Psychiatrist with Medicare and California Medicaid numbers prior to start of employment · Valid DEA certificate · 2 years experience working fulltime as psychiatrists and MD or DO in child and adult psychiatry Contact Us: Visit our website at www.vistacommunityclinic.org Forward resume to hr@vistacommunityclinic.org or fax resume to 760 414 3702. EOE/M/F/D/V

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Savings & Discounts Aimed at meeting both your professional and personal needs, LACMA offers you additional discounts and savings on Auto & Home Insurance, UPS services, Staples office supplies, Financial Planning, HIPAA Compliance Kits, and more!

For Joining LACMA and CMA Working together, the Los Angeles County Medical Association and the California Medical Association are strong advocates for all physicians and for the profession of medicine. Of the many reasons for joining LACMA and CMA, 10 stand out.

CMA develops toolkits, guides, webinars, and resources on all things related to today’s changing healthcare landscape—all FREE with membership. In addition, LACMA provides access to important and local CME-accredited events.

Free Legal Assistance

Legislative Advocacy LACMA and CMA are distinguished by their successes. Dual membership provides for unparalleled legislative advocacy at the local, state, and federal level on behalf of our members.

FREE Reimbursement Assistance Tired of fighting with payors? CMA’s Economic Services experts recovered over 7.8 million dollars for members since 2010.

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Through an exclusive partnership with the medical supply manufacturing and distribution company, LACMA saves members a minimum of 10% on your medical supplies, equipment, and medical waste with compliance.

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Socialize and network with members of the medical community

Find or create opportunities for your practice

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State-of-the-Art Communication Information is power. LACMA and CMA produce several publications full of valuable information including the award-winning Physician Magazine, Physicians’ News Network, and CMA Practice Resources, full of tips and tools for your practice.

Access to your Physician Advocate If you come across a challenge and you are not sure what to do, call LACMA to support your practice and professional needs.

is the best time to join LACMA and CMA For more information on member benefits and resources, visit lacmanet.org/Membership or call (213) 226-0356 Los Angeles County Medical Association o 707 Wilshire Blvd, Suite 3800 o Los Angeles, CA o 90017 o FAX: (213) 226-0353


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