Web-Tones

Bill Clinton: It's 5 minutes 2 midnight for health care in America!

2009-11-13T10:02:17-05:00

It's 5 minutes 2 midnight (read to bottom of post): This video shows Bill Clinton at his best. He simply has no living equal when it comes to getting at the heart of the matter on a policy question. Here's the $$ quote (paraphrasing):

Historically, everyone that has ever bet against America has been wrong. Why? Because we always knew when it was five minutes to midnight and managed to make the right decision.

This is Clinton's riff from a famous quote by Winston Churchill (again paraphrasing):

Americans always find a way to do the right thing, after exhausting every other possible alternative.

I wouldn't bet against America on healthcare, not because of some US government takeover of the health care system (a meme that is pure fiction), but rather because we STILL HAVE the most resilient entrepreneurial economy that the planet has ever known. I have written often about how American health care entrepreneurs will rise to the occasion and that we are going to innovate our way out of this health care mess. Why? Because 16% of GDP is unsustainable and we will bankrupt the future of our children and our grandchildren if we don't fix it.

I was recently asked at a conference Q&A session if the EHR incentives of the HITECH Act would provide enough of an ROI to get providers to move? My long answer was NO. But if laggard providers don't believe that nimble competitors at this very moment are plotting their demise, then they don't understand that this is not your daddy's health care industry any longer, and yes it's 5 minutes to midnight and a bet against American ingenuity is a losing bet.

Check out a FREE EHR Checklist. For more information on healthcare innovation and the HITECH / HIPAA Privacy and Security Rules go to The HIPAA Survival Guide website or sign up for Digital Business Law Group's free monthly compliance newsletter.

Note: We will start conducting HITECH / HIPAA Risk Management Webinars beginning in January, 2010 that may also be of interest. These webinars will be managed as a forum of "round-table" discussions on the pertinent issues, with many opportunities for audience participation and questions. Our intention is to bring these complex issues down to a practical level with guidance for attendees.

HHS & Meaningful Use: Innovation Happens!

2009-11-12T07:10:19-05:00

HHS now has a subsection of its website dedicated to "meaningful use (MU)." We just presented at the WHIT World Healthcare Congress and will be posting our talk and slides shortly. Part of what we covered is our definition of MU. This is a term of art that has gone through two rounds of public comment with CMS/ONC expected to issue a "blessed version" in first quarter 2010.

The controversy surrounding MU will continue, but if the vendors displaying their wares at the WHIT Conference are a harbinger of things to come, and we believe they are, then innovation is increasing at alarming rate, and those providers that choose to remain on the sidelines waiting for the US Government to clarify every last term in the HITECH Act are going to get their "clocks cleaned" by more nimble competitors.

Some providers (perhaps many) are going to resist, but it doesn't matter anymore, the relentless push of the marketplace will force change. Health care, as a whole, simply cannot remain the uber laggard. Why? Because a large enough percentage of providers will find ways to innovate, stimulus package or no stimulus package, and these providers will change the rules of the game. IBM thought it would never happen to them. Ditto MS. Does any one really believe that time will stand still for the health care industry? NO industry gets a free pass on this train. None.

Check out a FREE EHR Checklist. For more information on HITECH / HIPAA Privacy and Security Rules go to The HIPAA Survival Guide website or sign up for Digital Business Law Group's free monthly compliance newsletter.

HHS: New Sheriff in Town?

2009-11-03T09:09:48-05:00

On October 30, 2009 HHS issued the following release:

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued an interim final rule today to conform the enforcement regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to currently effective statutory revisions made pursuant to the Health Information Technology for Economic and Clinical Health (HITECH) Act, which was enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA).

In this interim final rule, published today in the Federal Register, HHS amends HIPAA’s enforcement regulations that relate to the imposition of civil money penalties to incorporate the HITECH Act’s categories of violations, tiered ranges of civil money penalty amounts, and revised limitations on the Secretary’s authority to impose civil money penalties for established violations of HIPAA’s Administrative Simplification Rules. This interim final rule does not make amendments with respect to those enforcement provisions of the HITECH Act that are not yet effective under the applicable statutory provisions. This interim final rule is effective 30 days after today.

If you are trying to follow along with the maze of HITECH's effective dates I suggest that you start here. HHS's Interim Final Rule ("IFR"), in general, relates to HITECH Section 13410-Improved Enforcement. The bottom line is that the "new Sheriff" has far more authority under HITECH to impose more stringent civil fines. Couple that with, among other things, HITECH fines returning to HHS' Office of Civil Rights coffers and you have a dramatically altered HITECH/HIPAA regulatory landscape. The full text of the IFR can be found here, along with HHS' commentary regarding same. If you want to review the sections of the Social Security Act that HITECH 13410 revises click here.

Danger: Smart Government at Work?

2009-10-30T07:26:29-04:00

The Implementation Workgroup Testimony. Great post by John Halamka summarizing our current status regarding implementation of the beseline standards required to effectively exchange healthcare data across a number of domains (e.g. ePerscribing, Labs, administrative transactions, etc.). What is encouraging is that these folks have "grokked" the lessons of historically successful standards development initiatives. Here is a gross oversimplification of these lessons:

Keep the standards lightweight for widespread adoption
Target the simple use cases first
Implement early and often

Notice also in John's post he links to an online, government sponsored forum, for achieving widespread collaboration on this work. The is proof that the power behind enabling technologies is starting to permeate government led initiatives, which should be a cause for celebration. President Obama gets it and correctly sums this up in his mantra of: "we don't need big government or small government, what we need is smart government."

John also makes a subtle but important distinction when he states that privacy and security concerns clearly need to be addressed as standards are developed, concurrent with said development, but of the two having the correct privacy policy in place is the more important. Why is that? Let me attempt an answer to this premise. Security, although often non trivial to implement based on the technical complexity, is a problem that has already been solved in other industries, it is an engineering problem. We are good at solving engineering problems (e.g. insert "man on the moon" meme).

A privacy policy, however, is culturally and organizationally complex (i.e. a wicked problem) and historically we have not been so good at solving these kinds of problems. All the really tough problems facing us (and the planet) are wicked problems. We should collectively become more fluent in problem identification because if we don't understand the nature of the problem, we have little hope of solving it effectively or efficiently.

HIT/EHR Implementations are Wicked Problems!

2009-10-27T09:00:26-04:00

The Health Care Blog: Is Healthcare IT Ready for its Big Coming Out Party?. It should go without saying, but I will say it anyway, because each industry seems to learn these lessons in their own unique way, that HIT implementations are by definition wicked problems. Whether a covered entity ("CE") goes with the market leader is no guarantee of success. We will be reading much more about EHR disasters in the coming months and years as the health care industry becomes the latest casualty of the people, process and platform conundrum.

Succinctly stated, HIT/EHR implementations are wicked problems to a large degree because people and process issues are ignored while providers focus on technology. All three components are mission critical and clearly, given the complexity, even the platform (read technology) component is "totally non trivial" to get right. So what is the solution? There are NO cookbook solutions, that is part of the definition of a wicked problem. Expect to be confronted with significant "unexpected challenges" and be prepared to iterate your way through them; in short, the best advice is to fail forward fast.

As counter intuitive as fail forward fast may seem (i.e. even more so in the heath care industry where anything that smacks of failure is anathema), this is right prescription but will almost universally not be followed. Why? Because as a society we appear to be hell bent on using engineering methodologies even in cases where agile methodologies are clearly called for. The latter has "failure cycles" built-in while the former is obsessed with getting the right answer.

There is no right answer. The answer will be different for every CE by definition. Add to this mix a completely transformed legal regulatory landscape and the challenges ahead appear daunting to say the least. If you want a fighting chance to succeed then you must start with accepting the premise that your organization must first change the way it thinks about the problem. This is no small feat.