InformaticsMD on NPR Affiliate KNPR regarding electronic medical record privacy: St. Rose hospital group used patient information to solicit patient lobbying?

Radio station News 88.9 KNPR, the NPR affiliate in Las Vegas did a segment today on the following news story.  The station's Senior Producer had invited me to participate via phone regarding patient privacy issues.

Emphases mine:

 

http://www.reviewjournal.com/news/federal-complaint-alleges-st-rose-hospitals-violated-patient-privacy

February 10, 2014 - Updated  February 11, 2014
Federal complaint alleges St. Rose Hospitals violated patient privacy

By STEVEN SLIVKA
LAS VEGAS REVIEW-JOURNAL

Dignity Health, the owner of St. Rose Dominican Hospitals, is facing a federal complaint alleging it violated patient privacy by using patient records as leverage in a contract dispute.
According to a Monday announcement from the Nevada Health Services Coalition, Dignity Health used patient records to contact those with coalition member plans after agreements between the two agencies fell through in January, something it contends violates the Health Insurance Portability and Accountability Act, or HIPAA. The complaint was filed with the U.S. Department of Health and Human Services Office of Civil Rights.

The complaint contends St. Rose contacted former patients in an attempt to persuade them to take action with their health plans favorable to St. Rose. The complaint also said that St. Rose claimed their actions were simply to be “informative.”

“It’s our position that patient data collected in the course of medical treatment should not be used to lobby or gain leverage in contract negotiations,” said Christine Carafelli, executive director of the coalition.

The Nevada Health Services Coalition is a nonprofit entity that negotiates hospital contracts for discounted health care service rates for 19 member group organizations, totaling approximately 230,000 Nevada residents.

A spokesperson for St. Rose said they would issue a statement on Tuesday. 

The segment has now completed.  It was hosted by Dave Becker of KNPR.

A representative of the Health Services Coalition (http://www.lvhsc.org/), a local organization of union, casino and local government health funds who bargain together for maximum leverage, participated, as did a hospital VP. 

The coalition is accusing the St. Rose hospital group (a division of Dignity Health) of using patient records to contact patients to urge them to lobby for the hospital in contract negotiations.

I was asked for an opinion on the acceptability of access to patient information in an organization's EHR systems (including PHI such as name, address and other contact information) for purposes of soliciting the patients to lobby the insurers on behalf of the healthcare organization for better terms.

My opinion was clear, which I summarize as follows:

1.  Hospitals do not "own" patient data to use as they please.  Is is not a simple business asset, like typewriters - or computers.  Any belief that a hospital can treat patient records as such, to be used as they pleased, would reflect arrogance;

2.  The HIPAA privacy rule and its exceptions (viewable at http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/, section under "Permitted Uses and Disclosures") would preclude the use of patient's private and protected information in an EHR for selective solicitation for lobbying on behalf of the hospital;

3.  Who accessed the patient information, and exactly what they accessed, is not clear, and an electronic audit trail needs to be disclosed as to these issues;

4.  Harm could potentially come to patients if someone who accessed the information, who otherwise might not have, used it to advantage for other purposes.  This includes, for example, uses outside of the medical sphere (e.g., personal use by, say, a neighbor or competitor).  I am aware of cases of such abuse, as is HHS and so are hospitals (see my blog query links on medical record privacy and confidentiality at http://hcrenewal.blogspot.com/search/label/medical%20record%20confidentiality and http://hcrenewal.blogspot.com/search/label/medical%20record%20privacy); and:

5.  The hospital could have accomplished such goals transparently, safely, and without access to private health information, by putting an ad on the radio (or newspaper etc.), or mailing a general newsletter such as I often receive from area hospitals, even hospitals where I was never a patient.

A hospital VP contributed soothing words that the hospital respects patient privacy, trusts its employees and doesn't wish this matter to become a stumbling block in negotiations.  However, in my opinion the hospital violated the HIPAA privacy rules and potentially put patient privacy at risk. 

No amount of soothing, deflecting executive language and shifting of the discussion can change that, and a full disclosure accounting would be proper. 

(I note the HIPAA privacy rules do not state "For informational purposes only.  Use patient information however you want if you trust your employees and you think the risk is low..")

That is, assuming an audit trail of sufficient detail is recorded in their EHRs, assuming it is turned on, and assuming it can be trusted in light of the HHS OIG report of Dec. 2013 where many hospitals admitted EHR audit trails can be deleted or edited by a person with appropriate credentials.  (See my Dec. 10, 2013 post "44% of hospitals reported to HHS that they can delete the contents of their EHR audit logs whenever they'd like" at http://hcrenewal.blogspot.com/2013/12/44-of-hospitals-reported-to-oig-that.html).

The segment audio is online here: http://www.knpr.org/son/archive/detail2.cfm?SegmentID=10939

-- SS 

Feb. 14, 2014 Addendum:

A thought experiment demonstrates just how far from propriety, in my opinion, this affair is:

If a hospital can use confidential information in this manner, to enlist patients as de facto lobbyists regarding an insurer, then why could not a hospital use other data - e.g., patients' disease burden, smoking status or even sexual orientation to ask them to lobby, say, a politician to gain some advantage, such as certificate-of-need approval for expansion, or anti-competitive legislation?  Or, to ask patients to participate in political activities for/against some politician or group that might hold views or conduct activities favorable/unfavorable to the hospital's interests?

-- SS

Another Sign of Resistance? - Doctors Sue Hospital Systems Alleged to Put Money Ahead of Mission

In two recent instances, physician groups have filed lawsuits against hospital systems alleging that managers were directly putting revenue ahead of patient welfare.  Although so far this is all about allegations, and nothing has been decided in courts of law, the details provided in the current news coverage are disturbing.

We will present the cases in the order that news reports were published.

Prime Healthcare Services

California Watch reported on a lawsuit filed against Prime Healthcare Services, a California based for-profit hospital system that has got its share of unfavorable media coverage.  In summary,

A dozen Southern California doctors are accusing the leadership of a Prime Healthcare Services hospital of refusing to notify them about their patients because they won’t engage in profit-driven practices, according to a request for a restraining order filed this week.

The San Bernardino County physician group suing Chino Valley Medical Center and its director say it has been asked to needlessly admit patients from the emergency room into hospital beds, according to the lawsuit filed Wednesday in San Bernardino County Superior Court. The group’s doctors also have been urged to document patient conditions as more complex or severe than they are, the filing says.

The doctors suing the hospital maintain that both practices are meant to drive up hospital bills. The result of their refusal to go along, they say, is that they’re not receiving what they characterize as legally mandated notifications when their patients land in the hospital.

 The physicians have asked the judge to lift the alleged freeze in communication, saying it puts fragile patients in danger. 

The article described one particularly concerning incident

[The lawsuit] ... claims one patient with a serious breathing condition was admitted without her doctor’s knowledge. During her stay, Chino Valley staff operated to remove her gallbladder.

'Because (Inland) was not contacted, no doctor gave the required pulmonary clearance nor did the patient receive proper respiratory treatment prior to surgery,' the lawsuit says.

The suit alleges that such practices put patients 'at serious risk of injury and even death.'

The article also described allegations that at the root of the problem was the hospital system's management's insistence on revenue ahead of all other concerns:

The physician group suing Chino Valley holds contracts with about a dozen managed care firms that expect group doctors to handle local members’ care in the case of a hospitalization.

The Inland doctors say that instead, they’ve been stonewalled. In their lawsuit, they say the silence is a result of their refusal to follow the direction of the hospital’s president and chief medical officer, Dr. James Lally, a defendant in the case.

Lally suggested that the physicians document serious medical conditions, such as a certain type of pneumonia that Medicare pays hospitals a premium to treat, the suit says.

Lally also discouraged doctors from putting patients on 'observation' status, according to the suit. That means a doctor will monitor a patient’s condition, rather than sending him or her home or admitting the patient to a hospital bed.

The lawsuit alleges that Lally prefers doctors to admit patients into the hospital so the hospital can receive 'significantly higher Medicare reimbursements.'

This is not the first time that Prime has been accused of mischief:

A yearlong California Watch series documented high rates of lucrative and severe medical conditions at Prime hospitals, as well as an aggressive approach to admitting ER patients into hospitals, rather than treating them in the ER and sending them home.

State hospital data analyzed by California Watch showed that Prime hospitals admitted about 63 percent of Medicare-funded ER patients into hospitals in 2009, compared with 39 percent at the state’s other leading for-profit chain, Tenet Healthcare Corp. In response, Prime said the analysis 'utterly fails to consider the medical basis for admissions.'

The U.S. Justice Department is investigating Prime’s billing practices, according to a document the chain filed as part of a hospital purchase plan. Dr. Prem Reddy, founder of the Ontario, Calif.-based chain, has overseen rapid growth since Prime’s 2001 start as the company expanded into a coast-to-coast 21-hospital chain.

Also,

Prime Healthcare has been criticized for aggressively admitting paying patients since its founding. Reddy once referred to an ER as a 'gold mine,' according to court testimony from the medical director of the first hospital taken over by the Prime founder. The reference, which the medical director said during a 2005 trial, was to numerous Kaiser and Medicare patients who could be admitted for further care.

Another doctor told the Orange County Board of Supervisors in 2006 that when Prime took over Huntington Beach Hospital, doctors were urged to admit insured patients with maladies as minor as a headache.

Yet, Prime Healthcare claims to honor the value of compassion:

 We provide an environment that is caring and conducive to healing the whole person physically, emotionally and spiritually. We respect the individual needs, desires and rights of our patients.

Dignity Health

Our second story comes from Nevada courtesy the Las Vegas Sun.   It involves Dignity Health, a multi-state non-profit health system.  The story basics are:

Two former St. Rose Dominican Hospital emergency room doctors say they were forced to transfer patients from one St. Rose hospital to another so its owners and their boss could profit — at the expense of patient safety.

The doctors allege in similar lawsuits that the frequent patient transfers among the three St. Rose hospital campuses — Rose de Lima and Siena in Henderson and San Martin in the southwest valley — put profit ahead of patient care. When they resisted, they say they were retaliated against and eventually fired.

The 3-year-old ambulance company that was used to shuttle patients was partly owned by both the hospital company and the director of the emergency department at the Siena campus at the time, Dr. Richard Henderson. According to their lawsuits, Henderson pushed hard in emails to ER doctors to promote patient shuttling and authorized bonuses to doctors who transferred the most patients to other St. Rose facilities.

Again, there was one telling incident:

Both lawsuits invoke the case of a gravely sick 16-day-old baby who arrived at St. Rose de Lima hospital, where a doctor determined the child needed pediatric critical care services at the Siena campus and requested a Henderson Fire Department unit for transport.

But according to the lawsuits, Henderson ordered that Community Ambulance transport the child instead. He made the request despite longer wait times for Community Ambulance compared to Henderson Fire Department’s quicker response times of 10 minutes or less, according to the lawsuits.

This article also described how money allegedly came before patient care:

The court papers include email exchanges between Henderson and the other doctors in the ER group. In a November 2010 email, he discusses ways to punish doctors who do fewer patient transfers and reward those who tally more transfers:

'(T)op quarter $1,000, next quarter $500. Bottom quarter up or out talk at annual evaluation.' In other words, according to doctors who received the email, Henderson proposed that doctors would be divided into strata based on who recommended the most transfers, with the top group winning bonus money while those who performed the least would eventually be terminated.

Transferring patients was such a priority that doctors were ordered to fill out non-transfer forms, explaining a decision not to transfer patients.

In another email, Henderson expressed concern that doctors were too quick to rule out transfers: 'How do you weed out the people that call a runny nose ‘unstable for transfer’? The performance we (admin) are looking for are transfers. Suggestions?'

A former member of the medical staff put it this way: There was constant pressure to transfer transfer transfer.'

Note that Dignity Health was until recently called Catholic Healthcare West (look here).  It still claims the mission:

 We are committed to furthering the healing ministry of Jesus. We dedicate our resources to:

• Delivering compassionate, high-quality, affordable health services;
• Serving and advocating for our sisters and brothers who are poor and disenfranchised; and
• Partnering with others in the community to improve the quality of life.

Note also that under its former name, Catholic Healthcare West has received our previous attention, for accusations that it overcharged uninsured patients (look here),  which it later settled (look here), and for settling a lawsuit claiming the system filed false Medicare claims (look here). 

Summary

 Just another day at the office....  Here are two more examples of how large health care organizations, in this case, large hospital systems, seem to put short-term revenue ahead of all other concerns, and in particular, ahead of patient welfare.  In both cases, the alleged practices seemed to make a mockery of the hospital systems high-flown mission or values statements.  In both cases, the hospital systems had records of past questionable behavior.  Yet many hospital systems have grown rich and powerful, and made their leaders personally rich, by trading on their reputation for community care and service, and marketing their warm and fuzzy missions and values. 

Over the years, we have documented over and over how leadership of health care organizations have subverted their organizations' missions and the values of health care professionals.  Yet for a long time, many health care professionals just kept their noses to their grindstones, ignoring what was going on or suffered in silence.  Now at least a few have broken the silence.  Health care professionals and society at large needs to hold large health care organizations' leadership accountable for their missions, and push out leaders who put their own pocketbooks and their organizations' revenue ahead of patients' and the public's health.