New Jersey HIPAA Health Law Lawyer & Attorney : Fox Rothschild LLP Law Firm : Serving Newark, Jersey City, Paterson, Princeton, Mercer County

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In a June 10 HHS News Release, Secretary Mike Leavitt named the 12 communities that will participate in a 5-year national Medicare demonstration project that provides incentive payments to physicians for using certified electronic health records (EHR) to improve the quality of patient care (the "EHR Demo Project").  The communities selected to work with the CMS on the EHR Demo Project are:

• Alabama
• Delaware
• Jacksonville, FL (multi-county)
• Georgia
• Maine
• Louisiana
• Maryland/Washington, DC
• Oklahoma
• Pittsburgh, PA (multi-county)
• South Dakota (multi-state)
• Virginia
• Madison, WI (multi-county)

Over the five-year span of the project, total financial incentives and bonus payments provided to participating physician practices may be up to $58,000 per physician or $290,000 per practice.  Secretary Leavitt states:

"The use of electronic health records, and of health information technology as a whole, has the ability to transform the way health care is delivered in our nation [and] we believe that EHRs can help physicians deliver better, more efficient care for their patients, in part by reducing medical errors. This project is designed to demonstrate these benefits and help increase the use of this technology in practices where adoption has been the slowest at the individual physician and small practice level."

Although in some respects it is disappointing that New Jersey was not among the communities selected to be a part of the EHR Demo Project, perhaps it is an indication that physicians in this state are ahead of the curve with EHR adoption.  If this is indeed the case, New Jersey may already be well on its way to improving patient care and reducing health care delivery costs through the use of technology ..... making it a "winner" too. 

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May 23 is the compliance date for the National Provider Identifier (NPI) to be used exclusively for electronic health care claims under HIPAA.  Providers who do not use their assigned NPI after this date may find health insurers starting to reject and return electronic claims.  Although millions of NPI numbers have been issued, it is unclear how may providers are in compliance.  As a result, the next several weeks-to-months are likely to be bumpy as providers begin to find that claims they believe are compliant are rejected.  Some commentators have predicted that if the industry experiences severe problems starting over the Memorial Day Weekend, CMS might relax the deadline.  Health Data Management noted, however, that providers that get too many claim rejections may resubmit the claims on paper. That will enable providers to get paid, but slow the process considerably and adversely affect cash flow.

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On May 13th, the Office of the Governor announced several direct appointments to the New Jersey Health Information Technology (NJ-HIT) Commission, and I am extremely pleased to pass along that I have been appointed to the attorney seat on the Commission.  I look forward to bringing my experience and enthusiasm to the table, and contributing to the success of the Commission's goals.

The NJ-HIT Commission was created by the New Jersey Health Information Technology Promotion Act, and its members, with the assistance of the Department of Banking and Insurance, are charged with developing, implementing and overseeing the establishment and creation of a state-wide health information technology plan utilizing electronic medical records.  Among other things, the Commission will be looking to the national standards for the State's HIT system for security, privacy, data content, format, vocabulary and information transfer standards.

The Commission will ultimately include over 19 members of the public, including representatives from professional health care organizations from across the State.

In 1994, Thomas Edison State College released a health care information networks and technology study that showed that New Jersey could save as much as $760 million by migrating from paper-based systems to an electronic network.

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Last week, the Office for Civil Rights (OCR) added a new data section on its Compliance and Enforcement Web Site.  The new section can be viewed at www.hhs.gov/ocr/privacy/enforcement/data.html.  The public can now access enhanced information about several aspects of OCR's enforcement program, including:

• Charts showing state-specific case investigation results;
• Calendar-year enforcement-results graphs and charts;
• Calendar-year graph showing complaint receipts; and
• Yearly variation in the issues in cases resolved through corrective action.

Below is a chart posted on OCR's new data section illustrating enforcement results for New Jersey:

 Another interesting chart lists the top five types of complaints for each of the last 5 years.  It is worth noting that between 2003-2007, the top 4 types of complaints were exactly the same, in the following order: 

• #1 - Impermissible Uses and Disclosures
• #2 - Safeguards
• #3 - Access
• #4 - Minimum Necessary

The last spot has changed from 2003 through 2007, with last year's number 5 spot being taken by "Notice" issues.

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In general, HIPAA requires a written authorization from an individual before a health care provider can make a communication about a product or service that encourages recipients of the communication to purchase or use the product or service.  However, certain mailings and communications with individuals are permissible without having to obtain prior written authorization because they are not considered "marketing" as defined by the HIPAA Privacy Rule.

The following are a few examples of communications that HIPAA does not consider "marketing":

-- Reminders (e.g., "get your annual pap" letter)
-- Providing information about how to manage a particular condition (e.g., tips on diabetes control)
-- General information about new developments in health care
-- Information about health & wellness classes, support groups, health fairs etc.
-- Announcements of a new specialty group or new medical equipment at your facility

Thus, even though many of us who receive such information in the mail consider such flyers to be at least loosely linked to the “marketing efforts” of the sender, HIPAA considers the foregoing to be “communications essential for quality health care.”  Such communications are not subject to HIPAA’s restrictions otherwise applicable to using patient health information for “marketing” purposes.  Thus, a written authorization is generally not required for a health care provider to mail such information to former or current patients.  

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***Interested parties must register with TESC in order to attend ****

When:    Monday August 6, 2007 from 9:00-12:00.    

Where:   Thomas Edison State College, Prudence Hall, 101 West State Street, Trenton, NJ  

Topic:     NJ RHIO Discussion Forum to share findings, conclusions and recommendations based upon information collected regarding the level of interest in a statewide health information exchange and the degree of economic commitment needed for sustainability. 

Presenters:  Department of Banking and Insurance,  Department of Health and Senior Services,  Department of Human Services,  New Jersey Hospital Association,  Horizon Blue Cross

If you are unable to attend (or it is too late to register), check back after August 6th because I will be posting a summary of the meeting on this Blog under the "New Jersey" category.

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