HealthBlawg

Health Care Social Media – How to Engage Online Without Getting into Trouble (Part II)

I have been asked to write up some of the core takeaways from the health care social media presentations I have been giving recently, so I am sharing a version of this narrative on HealthBlawg, in two parts.  You may wish to begin with Part I.  

Professional responsibility and malpractice liability

The American Medical Association has promulgated a social media policy; so has the Veterans Administration.  The two represent very different approaches.  The AMA essentially advocates proceeding with caution, and being cognizant of the damage that one’s own social media activities – and one’s colleagues’ – may do to the profession.  The VA, on the other hand, is out in front on this issue – just as it was with electronic health records – encouraging the use of social media tools to disseminate information and engage patients and caregivers in productive dialogue likely to improve overall wellbeing and health care outcomes.

Patient care should not be provided in open social media forums, but appropriate disclaimers on blogs, Facebook pages, YouTube channel pages, and the like, should be sufficient protection for providers seeking to use these tools for sharing of general advice and information.

As in other settings, there are emergency exceptions.  If the only way to communicate lifesaving information to a patient is via a public social media channel, then a clinician should not refrain from doing based on a concern about a privacy violation.

Daily deal websites

Groupon, Living Social and other daily deal websites are being used by health care providers -- though thus far mostly by those that are not covered by traditional commercial or governmental health insurance (e.g., dental, chiropractic, acupuncture services).  This may change as the health insurance landscape changes over time.  There are a number of legal issues, and their resolution will depend, in part, on where you are situated, since many of the relevant rules are state laws, which vary.  For example:

• Groupon collects 50% of the price of the groupon as its fee; is that illegal fee-splitting under applicable state law?
• Is the 50% fee an illegal kickback in exchange for a referral?  Are you subject to federal laws in this area in addition to any state laws?
• Do provider agreements with third party payors prohibit the offering of discounts to plan subscribers?  (If you can get over the first two issues, you may need to screen out patients who are insured by carriers who limit your ability to discount or risk being in default under an agreement with your biggest customer.)
• There is at least one more issue to consider, as well:  State laws on gift certificates and their requirements touching on expiration dates.  Lawsuits have been filed alleging that the relatively short life of the daily deal violates state gift certificate laws. 

With the proliferation of high-deductible health plans, and FSAs, HSAs and the like, the general public is becoming more price sensitive in paying for health care services; while health care providers need to become more creative in order to address this issue, they must also remember that they are subject to a wide-ranging set of regulations above and beyond other consumer-facing businesses.

Social Media Policies and Procedures

Despite the legal landscape, it is possible for a health care provider to develop a robust social media program.  The critical first step is developing a set of policies that respects the legal and regulatory limits, and that is consistent with the organization's level of readiness to engage through social media.  Establishing clear guidelines will allow clinicians and staff to participate in the online conversation without having to review individual posts on a regular basis with legal and regulatory advisors. An existing policy from another organization may be used as a starting point in the development process, but local customization is key. 

An external-facing social media policy should set limits and expectations for people who come to the organization's web properties – web site, Facebook page, blog, YouTube channel, Twitter stream, etc. -- so that, for example, a poster who violates the terms of service will be on notice that a hospital whose staff should be monitoring social media accounts at least daily may decide to take down a post (on a forum such as Facebook) if it does not comply with the policy.

An internal set of policies and procedures is also needed to address internal operational and policy issues for both official and unofficial channels. Staff need to be sensitive to the fact that they are, in effect, brand ambassadors on a 24/7 basis, and that if they mention their employer in their own posts on their personal Twitter accounts or Facebook pages, they should do so consistent with company policy – noting that “tweets are my own” or words to that effect.  Some organizations may desire to insist on all employees' “radio silence” except for designated spokespersons.

The best policies are those that are developed through an inclusive process, rather than a top-down process, so that the employees most likely to be active on social media may offer input to the process sand also feel ownership of the final product in a way that will promote adherence.

No matter what the tenor of an individual organization’s policies may be, they must be implemented – they do no good up on the shelf.  Staff must be trained on the policies, and are retrained as policies are updated on at least an annual basis.  Adherence to the social media policies should be a condition of employment, just the same as adherence to any other employer policy, and the distribution of policy documents and training may be integrated with a broader employment process within your organization.

Sine this is a rapidly changing arena – and since social media comfort levels in an organization may change relatively rapidly – social media policies should be reviewed on a regular basis, at least annually.

Conclusion

The cat is out of the bag.  Even if you wanted to avoid social media entirely, it is simply too late to attempt to do so.  Even if your practice or institution does not have an active social media presence, it is likely that others are already discussing you on line.  It is important to set up a social media monitoring program right away, if you do not already have one in place, so that you may respond in the real world to issues flagged in cyberspace.

You can become an active participant in health care social media and stay on the right side of the law, and these days it is becoming more and more imperative to use this toolset for marketing, patient communication and care management.

 

Be sure to check out Part I of this two-part series on health care social media, which lays out the range of issues and concerns and goes into greater detail on HIPAA issues.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting  

Me too! It's not fair! The tragedy of the commons in the health care marketplace

There are at least two conversations going on in the health care marketplace today, each focused on one of two key questions. One is: How can we achieve the Triple Aim? The other is: Why do they get to do that?  (It's not fair! I want more!)  

Until we stop asking the second question, we can't answer the first question. Why? Because all too often the answer to the second question is the equivalent of: It's OK, Timmy, I'll buy you TWO lollipops; pick whichever ones you want.  

It's the tragedy of the commons, transposed to the health care marketplace.

Recent cases in point:

• Avastin
• Tufts Medical Center - Blue Cross Blue Shield of Massachusetts grudge match
• Mammography and PSA guidelines

1.    Avastin.  Late last year, the FDA yanked its breast cancer treatment approval for Avastin, based on a finding that it does not meet the "safe and effective" standard. CMS says it will still pay for the drug anyway, as will many commercial payors, based on physician judgment.

2.    Tufts Medical Center - Blue Cross Blue Shield of Massachusetts. The contract negotiation (out in public view) focused, in part, on Tufts' complaint that BCBSMA pays way more for health care services provided by another network, Partners Health Care, and that it should be compensated on the same scale.  (Others have noticed this disparity too, and have found that higher payments were not accompanied by higher quality -- see reports by Massachusetts state agencies.)  In the context of the present discussion, we may wish to consider whether Partners should be paid less, rather than whether Tufts Medical Center should be paid more.  This episode, according to some, will pave the way for more regulations.

3.    Mammography and PSA guidelines.  Evidence-based medicine says fewer tests are needed, yet consumer demand based on anecdotal evidence, or unwillingness to shift gears becasue of expaectations based on prior recommendations, remains in place, and some payors elect to continue to pay for testing in siutuations that the evidence says testing is not warranted. 

(These are just a few examples "ripped from the headlines" to make a point -- please don't attack my conclusions if you disagree with the specifics of these examples offered, and I invite you to offer additional examples.)

The health care marketplace is, not to put too fine a point on it, imperfect. Often, patients demand goods or services based on direct-to-consumer advertising or peer recommendations without an evicence-based clinical need, physicians are happy to order the drug or the test because they have little or no economic incentive to refuse (and perceive an economic incentive to comply -- avoidance of a potential malpractice case over a missed diagnosis, for example), and patients have little or no exposure to the actual cost of the drug or test at issue.  Things are changing, to be sure: the patient co-pay for the demanded drug may be a little higher or the patient may have a high-deductible health plan, the physician may have a slight disincentive to ordering the more expensive drug or test, but thus far these economic incentives have not been significant enough to shift behavior in a significant manner, and the commons -- the money available for all public and private sector spending, on everything -- has been laid waste: diverted, a few dollars at a time, into the gaping maw of the health care beast.  The result is not improved health status -- just increased health care spending, and decreased spending on everything else.  

Unfettered patient choice coupled with payor-provider risk sharing seems to some to be a recipe for disaster (see: myriad predictions of ACO-induced doom and gloom). CMS is staking out a claim in this new territory, and the folks at the Center for Innovation are being quite frank about it: We have a big chunk of change at our disposal right now to help change the health care marketplace, but in the future we will all have to do more with less.  

At least one national physician group has finally come around to this way of thinking: Per NPR, The American College of Physicians greeted the new year by issuing the latest edition of its ethics manual, which includes the following passage:

In making recommendations to patients, designing practice guidelines and formularies, and making decisions on medical benefits review boards, physicians' considered judgments should reflect the best available evidence in the biomedical literature, including data on the cost-effectiveness of different clinical approaches.

ACP President Virginia Hood told NPR:

We also have to realize that if we don't think about how resources are used in an overall sense then there won't be enough health care dollars for our individual patients. So while concentrating on our individual patients and what they need we also to think on this bigger level both for their benefit and for the well-being of the community at large.

It seems to me that there is a way forward, but it will have to involve a delicate mix of market and regulatory models.  Adding ethics into the mix may be the way to pull us out of the purely economic tragedy of the commons.  

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

Health Care Social Media – How to Engage Online Without Getting into Trouble (Part I)

I have been asked recently to write up some of the core takeaways from the health care social media presentations I have been giving recently, so I am sharing a version of this narrative on HealthBlawg, in two parts.  Check back later this week for Part II. 

Introduction

“Why do you rob banks?”

“That’s where the money is.”

The legendary bank robber Willie Sutton, when asked, gave this straightforward response explaining his motivation.  A similar motivation may be ascribed to the early adopters among health care providers who have established beachheads on various social media properties on line.  Why be active in on line social networks?  That’s where the people are: patients, caregivers, potential collaborators and referral sources, like many, many other people, are using social media more and more.  Facebook has become nearly ubiquitous, and its user base is growing not only among the younger set, but also among the older set, who are signing up so they can see pictures of their grandkids.  In today’s wired society, on line social networking is the new word of mouth.  Word-of-mouth referrals, personal recommendations, have always been prized; we have simply moved many of those conversations on line.

Over half of Americans rely on the internet when looking for health care information.  Many on line searches are conducted on behalf of another person.  Most people expect their health care providers to be on line, providing trustworthy information – and the day of the static website has passed.  In addition, a growing subset of the population is comprised of “e-patients” – the “e” stands for educated, engaged and empowered – who seek out health care providers prepared to engage with them both in person and on line.

Only about twenty percent of U.S. hospitals have a social media presence, and likely a similar proportion of other health care providers.  Thus, while some health care providers have been using social media for years, there is still an opportunity to reap the benefits of being an early adopter.  Whether or not a provider is on line, others are likely discussing that provider – on review sites, on Facebook, even on Twitter – so whether or not one establishes a social media presence, it is imperative to establish a listening post to keep abreast of what is already being posted on line – complaints, recommendations and other information will come to light, and steps may be taken in the real world to ameliorate situations giving rise to complaints and to capitalize on praise and referrals.

Finally, health care reform is pushing health care providers into social media.  The Meaningful Use regulations will soon require that providers seeking incentive payments for adoption of electronic health records must make greater use of personal health record portals, and programs like the Medicare Shared Savings Program, or Accountable Care Organization program, require patient-centeredness and patient engagement, which in this day and age require the use of online social tools.

With all of these motivating factors, why are health care providers reticent, and slow to adopt the use of social media tools?  There are numerous legal and regulatory issues triggered by the use of social media and some health care providers are put off by the perception of the risk involved.  However, there are legal and regulatory risks (and attendant market and business risks) to the decision to remain uninvolved.

The key issues for consideration include the following:

• Privacy and security rules, under HIPAA as well as other federal and state laws, and the ever-diminishing ability to fully de-identify protected health information
• Professional responsibility codes, including both professional society codes of ethics and state regulations promulgated by boards of registration in medicine
• Malpractice liability for professional advice rendered via social media
• Issues raised by daily deal sites such as Groupon and Living Social, including anti-kickback, fee-splitting, insurance contracts, state insurance laws and gift certificate laws
• Liability under Federal Trade Commission rules for failure to disclose a financial relationship in conjunction with an online rating, review or other commentary
• Trouble with the National Labor Relations Board if employee discussion of working conditions in unreasonably limited (even in non-union shops)

If not managed appropriately, it is clear that these issues may lead to significant liabilities, ranging from civil and administrative fines, to negative publicity, to private lawsuits predicated on HIPAA or state law violations.  (Even though HIPAA does not provide for third-party liability some state laws do, and creative lawsuits may seek to bootstrap private liability on a HIPAA violation as well.)

However, it is possible to manage all of these issues through the development of comprehensive social media policies – both outward-facing (i.e., to patients and the general public) and inward-facing (i.e., to physicians, other clinicians, and other staff) that are tailored to a specific medical practice or other health care organization.  The policies themselves must be tailored to local conditions, because each practice, each health care organization is at a slightly different point on its own health care social media journey, its comfort level with social media tools, and its thoughts about how to use these tools, and to what end.

Here is further detail about several of the key categories of legal issues identified above:

HIPAA and other privacy concerns

Privacy concerns arising from HIPAA and state privacy laws start from the proposition that only a patient has the right to authorize the release of his or her own private health information.  Thus, while an individual patient is free to blog about her medical condition or experience with the health care system without implicating HIPAA or other privacy rules, provider-generated social media content with identifiable patient information used without consent would raise red flags.  Provider discussions of cases on social media should follow the “elevator rule” or the “coffee shop rule” – If you wouldn’t say it in a crowded elevator or coffee shop, don’t post it online.

As one emergency room physician recently learned the hard way (she was dismissed by her employer and sanctioned by her state medical board), even a de-identified Facebook post about a patient may easily be re-identified using information from third-party sources.  The HIPAA rules list eighteen categories of identifying information that must be stripped from a record or patient story in order for it to be considered de-identified. Number eighteen is, essentially, anything else that may be used to re-identify the de-identified information.  Since we are, collectively, doubling the amount of information posted online on a regular basis, that which is de-identified today may well be easily re-dentified tomorrow. 

Thus, the best practice would be to write about composite/fictionalized patients, or simply get patient consent.  Providers may wish to rewrite their HIPAA NPPs (notice of privacy practices) to include some level of consent to communication with or about a patient on Facebook, for example, if that is something that would make sense, and that might happen on a regular basis. 

Other disclosures made inadvertently may lead to difficulties as well.  For example:

• A cell phone photo taken in a hospital emergency room of a friend proudly displaying a newly-stitched wound may inadvertently capture the image of another patient in the background. That post may be a HIPAA violation attributable to the hospital, even if it did not post the photo. 
• An employee of a public hospital tweets her displeasure in seeing a clinic staffed up for the convenience of a political figure seeking service off-hours.  Her public sharing of identifiable health information led to her being fired.
• Positive test results posted by a patient on Facebook might invite response on a human level, but the response must be more measured.  For example, if a patient posts on a hospital Facebook wall after getting some good test results, “I'm cancer free one year later,” hospital staff can't post much more than “Congrats; everyone should check out our cancer center's web page.”  Even in a situation like this, where the patient self-identifies first, there is no consent to unlimited public discussion of his condition.

 

Please check back later this week for Part II, which will touch on professional responsibility and malpractice issues, daily deal sites and the development of policies and procedures for provider organizations engaged in the use of health care social media.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting 

Microsoft GE Healthcare joint venture - A sign of weakness or strength?

Microsoft and GE Healthcare announced a joint venture yesterday (as-yet unnamed), trumpeted as bringing together the best of both companies' offerings in the health care provider market. (More from the NY Times.) Late in the day, I spoke with Brandon Savage, Chief Medical Officer at GE Healthcare, and Nate McLemore, General Manager of Microsoft Health Solutions Group.  They had a great deal to say about the companies' shared vision of the use of platform technology to enable care teams to deliver the right decision at the right time, noting that their core products complement each other rather than overlap.

The centerpiece of the collaboration will be an amalgamation (so to speak) of the two companies' strengths around Amalga (the Microsoft product) and Qualibria (the GE product). Brandon and Nate described the challenges facing these products thus: Qualibria needs to be able to pull in data from multiple sources better (Microsoft can help), and Amalga needs to be able to share best practices across sites better (GE can help).  

Put another way (to quote John Moore at Chilmark Research), Amalga is "more a toolset than a product." McLemore acknowledged that provider organizations need to make a substantial investment in customization in order to realize benefits from using Amalga, and noted that one of the keys to the synergy with GE is that GE can build the applications needed to unlock the value from Amalga for customers who can't or won't do it themselves.  While there have been some providers that have walked away from Amalga, there are some notable success stories (e.g. New York Presbyterian's dramatic reduction in DVT thanks to information extracted and interventions facilitated by Amalga's analytical tools).  (We should note that there a number of products that carry or have carried the Amalga brand; one of them, Amalga HIS, was sold to Orion Health in a deal that should close soon.)

Qualibria (the GE Healthcare product) is a tool to capture and disseminate medical knowledge and clinical decision rules developed by leading health systems and/or by individual client institutions (see further explanation of Qualibria a little more than halfway through the linked post).  

Savage and McLemore emphasized that their current focus is on population health -- Amalga and Qualibria both allow health care providers to manage populations of patients based on the aggregate date crunched by the two systems.  They also focused on the openness of the products they are building -- even though one might think of GE Healthcare as a "legacy" or "big iron" EHR vendor -- and emphasized the ability of legacy EHR vendors to integrate EHR assets in place with the analytics and clinical decision support provided by Amalga and Qualibria.

The scope of the joint venture announced raises two potential regulatory concerns:

• First, there may be antitrust regulatory review needed before the transaction can proceed.

• Second, if these products can do all that Savage and McLemore say they can, then the FDA may step in to regulate them as medical devices. Thus far, the agency has asserted its jurisdiction with respect to certain mobile medical apps; Amalga and Qualibria are certainly more powerful than your average iPhone or Android app.  ONC and FDA are duking it out over ultimate EHR jurisdiction and, prompted by ONC, the IOM released its recommendation that a third agency be created to regulate EHRs just last month.  (Join a lively discussion of the report here.) 

This is not GE Healthcare's first joint venture.  GE's joint venture with Intel -- kicked off about a year ago -- by contrast, is more focused on the patient, on the individual receiving home health services, and on the hardware that could be left in a patient's home and transmit data to the patient's health care providers, as needed.

It seems a little odd that Microsoft HealthVault is remaining at Microsoft rather than being moved into the new venture, particularly since Microsoft was, within the past year, talking up the integration of HealthVault and Amalga.  It remains to be seen whether HealthVault will follow the Google Health PHR into oblivion.  Peter Neupert, who has headed up Microsoft's Health Solutions Group, will be retiring from Microsoft, and will consult to the new entity on a part-time basis.  

This seems like the end of an era at Microsoft, with a division whose core product was acquired from an entrepreneurial hospital group about six years back.  As GE Healthcare folks would say, it looks like another case of "reverse innovation" -- except this time, instead of looking for reverse innovation from GE Healthcare technologies in developing countries, GE and Microsoft are hoping to do in a smaller setting what they have been unable to do in their corporate home settings.  As the CEO of the GE-Intel joint venture said recently: "My instructions are to drive the bus as if I stole it."  The new bus sounds like it will be driven by GE Healthcare, with a payload of Microsoft HSG IP in an engineering environment driven by Microsoft culture.  We'll have to wait and see whether and when it arrives at its final destination.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting 

Deja Vu All Over Again: David Harlow speaks with Gene Lindsey, MD, President and CEO of Atrius Health and Harvard Vanguard Medical Associates

Recently, I had the opportunity to speak with Gene Lindsey, President and CEO of Atrius Health and Harvard Vanguard Medical Associates. Atrius is a 1000-physician allliance of six medical groups in eastern and central Massachusetts; Harvard Vanguard is the largest of those groups.  We discussed some current developments in the health care regulatory landscape and marketplace, and Atrius' approach to positioning itself for success -- as well as its definition of success -- in the current environment, in domains ranging from improvinmg medical education to achieving the Triple Aim. 

Gene is a student of the history of his organizations (he's been a part of their operations, and those of their predecessor, Harvard Community Health Plan, since the 1970s), and he traces current discussions about health care quality and cost back to the thinking and writing of HCHP's founder, Dr. Richard Ebert. He described delving into Ebert's papers in "the bowels" of Countway Library at Harvard Medical School (Ebert was Dean there when he founded HCHP) and is clearly committed to the framework of collaborative, physician-led efforts to manage health care and control costs. He's taking his organization through a Lean process of cost-cutting, and is working to further Atrius's early successes under the proto-ACO Blue Cross Blue Shield of Massachsuetts Alternative Quality Contract (AQC).  Atrius Health's first year's results under the AQC look promising, though researchers writing in the New England Journal of Medicine concluded that further study is needed.  Gene says he has another two years' data, and the results continue to look good.

The audio file of my interview with Gene Lindsey is available for download/podcast.  It runs about 25 minutes. A full transcript is at the end of this post (and in the linked Gene Lindsey, CEO, Atrius Health, interview transcript).

In thinking about how to create a high-performing health care system, Gene observed: "as Atul Gawande says, the issue is that we’re not without knowledge, we’re just inept in applying that knowledge."  He predicts that the next several decades will be devoted to figuring out how to apply the knowledge we already have.  

He wrapped up our coversation by tying his work at Atrius to the IOM's six domains of quality, making a strong statement about his organization's commitment to patient-centeredness:

We have constructed our organizational activities around what the IOM called the six domains of quality, the most important of which is patient-centricity.  We need to design the system to be a benefit to the people who come to us for care - they are our reason for existence. That’s not been true in the past. In the past we’ve designed it for a lot of other reasons, but not always and specifically to benefit the care of people.  Sometimes it’s for the convenience of physicians, sometimes it’s for the perpetuation of august institutions - whatever it’s been, but it’s not always been that the patient’s been at the center of it.  Lucian Leape, whose name you introduced earlier, focused us on safety. The other issues . . . care needs to be timely if it’s going to be safe and patient-centered, it needs to be efficient and effective if we’re going to have a society that continues to exist, and the last and most important of the domains is it’s got to be equitably delivered -- and probably that has been the biggest conundrum for our country.  How do we get the last 15% of our citizens covered in a fashion that doesn’t destroy the economics for the rest of us? [T]hat in and of itself is the most compelling reason to look hard at why and how we waste resources.  

During our conversation, Gene jokingly called me an anarchist, due to my hyperbolic characterization of the Lucian Leape Institute's recommendations about re-inventing medical education in the US. The truth is, we need to put a little bit of the anarchist in each of us to work if we want to achieve meaningful change to our broken health care system.

Keep an eye on the man with the bowtie.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

 

HealthBlawg :: David Harlow’s Health Care Law Blog

Interview of Dr. Gene Lindsey, President and CEO of Atrius Health 

 and Harvard Vanguard Medical Associates

November 30, 2011

David Harlow:  Hello, this is David Harlow on HealthBlawg and I have with me today Dr. Gene Lindsey, President and CEO of Atrius Health, an alliance of 6 medical group practices in Eastern and Central Massachusetts with over 1000 physicians at 50 locations.  Dr. Lindsey also serves as President and CEO of Harvard Vanguard Medical Associates, the largest of the groups.  He started practicing at Harvard Vanguard’s predecessor, Harvard Community Health Plan, over 35 years ago and has held a variety of leadership positions in these and related entities through the years.  Gene, thank you for joining us today.

Gene Lindsey:  I’m glad to be here David, thank you very much for inviting me.

David Harlow:  My pleasure.  So you’ve had some firsthand experience practicing in the early days at one of the country’s leading HMOs - in fact, working with our soon-to-be-former CMS administrator Don Berwick. How are those days and that experience similar to the current environment where so many folks are focused on accountable care organizations and new payment systems?  Many have said these look a lot like capitation - though we’re not allowed to say capitation these days, and of course we have some new bells and whistles.  I wonder if you could speak to some of the similarities and differences and, since we didn’t fix the healthcare system for good back in the ’70s, what’s different this time around?

Gene Lindsey:  Well, that’s one of my favorite questions, David.  It is déjà vu all over again for me in many ways, in that there is certainly a sort of a pioneer spirit that’s associated with our organization now that feels very reminiscent of the spirit that existed when I joined the organization in 1975.  In fact, the term “capitation” was not a term that we used back then. Dr. Robert Ebert, who was the dean of the Harvard Medical School and through whose vision Harvard Community Health Plan evolved, used the phrase “prepayment” and it was his concept which we still share today: that fee-for-service medicine led to a fragmentation of care that was deleterious to the concept of wellness and to the preservation of health.  And so some of the terms that were popular at that time really focused more on health maintenance and so we call them HMOs, Health Maintenance Organizations - it’s too bad that these three-letter acronyms became four-letter words.  But I think that that was because of the fact that the larger market that wasn’t driven by Dr. Ebert’s vision of wellness but was more economically focused on institutional bottom lines sort of took the spirit of the process and diverted it in a different direction; but the early days of Harvard Community Health Plan included not only Don Berwick, but other people who have gone on and made huge contributions like Glenn Steele who was a surgeon here - he is now the CEO of Geisinger.  Glenn was a surgeon at Harvard Community Health Plan from the mid 70s through the late 80s.  There was Glenn Hackbarth, who is the current chair of MedPAC, who was one of my predecessors as the CEO of Harvard Vanguard.  So our organization has always been focused on the future and always been focused on what we can do in the moment to improve the health of the individuals who come to us for care.

David Harlow:  So you said the word “pioneer,” so I wanted to ask you about what you’re doing in the pioneer arena as we’re moving towards ACO development, and my understanding is that you’re moving in that direction on behalf of the organization.  I’d like to get your thoughts on the Pioneer ACO structure and how that relates to your present activities, or activities over the past year or so under the alternative quality contract with Blue Cross Blue Shield of Massachusetts.

Gene Lindsey:  Well I certainly am in support of the Affordable Care Act, in particular the part of the Affordable Care Act that’s looking at the development of new practice models through CMMI, and on various occasions we have had conversations with people at CMMI and CMS -  they’ve asked us for our input in how to create programs that will be potentially successful.  Their goal is obviously to simultaneously reduce the healthcare spend while improving the quality of the care that’s provided, and our organization literally has adopted as a major portion of its reason for existence the success of what the IHI has called the triple aim: better care for individuals and better care for communities at an affordable cost. 

The ACO movement, I believe, is the national extension of Dr. Ebert’s ideals.  We’ve been looking for an economic model that actually supports the fact that care that’s going to be most effective will probably be care that’s delivered in a variety of environments that are difficult to harness in a fee-for-service way.  I think that we have sort of gotten as far as we can get in terms of health improvement and efficiency paying for care only in a hospital or in an office, and the advantage that Dr. Ebert saw 42 years ago was prepayment, was that many programs that utilize time and energy of clinicians outside the office and hospital environment were going to be the fulcrum of what we could accomplish with patients.  Now in this moment that means trying to take care out of the office into the space where the patient lives, and our organization does that through things like a patient portal on our website that allows them to have direct communication with their physician or with other caregivers in our system. We’d like to have programs of wellness, behavior modification, things of that sort, that go beyond the scope of the 15-minute appointment, and actually often take our clinicians into the home for the homebound elderly in ways that are very difficult to support – again, if there’s a turnstile in front of the office that a patient has to walk through to economically support the system. 

So those ideas all feel to me like they’re exploratory and in that regard the concept of it being a pioneer effort seems very appropriate.  I think in the commercial area - you referred to the AQC, I believe - we’ve learned a lot over the last 3 years because what the AQC contract had as a very laudable direction was moving from volume-based reimbursement to value-based reimbursement.  And when it started for us we didn’t know for sure how to begin that journey but what we did quickly learn was – and I know that you have a prior relationship with Marc Bard – Marc preaches that the whole success will be on the basis of moving from a concept of individual effort to group effort.  He talks about moving from I to WE and that’s exactly what was necessary to be successful within the AQC - to begin to assemble groups of clinicians and healthcare professionals to look at rosters of patients, to look at results in a collective fashion, to put together programs that would allow outreach to people whose health needed particular attention in one area or another - congestive heart failure and diabetes have been certainly big areas of focus, we’re beginning to try to put together programs that help with mental health issues and also with the new epidemic of obesity.  So all of these programmatic approaches to problems that are shared by patients is what we refer to as population medicine and you can do more, and do more effectively, if you approach it in terms of programs - and those are all not possible to support very effectively in a fee-for-service system.  But if you can group the budgets from many patients together as a resource then in fact you can very efficiently fund programs that do promote wellness which, over a series of years, will reduce the total spend on healthcare because it’ll be avoiding a lot of long term complicated problems that are otherwise going to be an individual drain on the collective healthcare spend.  So we’re learning a lot - it’s a fun time - my only regret in this is that I’m old as I am and I don’t have that many more years left to go because I think the next 20 years of healthcare is going to be a really fantastic place to be.

David Harlow:  Yes, we are certainly in interesting times.  You said a couple of things I wanted to follow up on.  One is on the question of seeing results and system savings from the approach that you describe.  There was a recent piece in The New England Journal of Medicine looking at initial experience under the AQC which basically said, if I remember correctly, looks good, looks like we’re moving in the right direction, but further study is needed.  Is there any information that you could bring to bear on that observation from prior experience with Atrius, with Harvard Vanguard, with Harvard Community Health Plan, that would tend to support the idea that this is actually going to work?

Gene Lindsey:  Yes, in fact that article was based on just the very earliest results from the first year and I’m aware of the results of the next year already and almost two years’ more data, and the data has continued to improve.  We’ve learned a lot, our initial efforts for instance in the quality areas led to what I would say is the reproduction of a typical dose-response curve.  You had a sharp improvement that then began to plateau off, and that’s not a surprise because I think that each time you do something new it has an effect, and the effect will carry you so far towards the goal, but then you have to come up with what’s next that’ll get you a little further so it’s a very interesting concept of continuous improvement.  And in fact much of the results that we’ve achieved have been through the adoption of continuous improvement in the form of Lean process management so that the results that we’ve achieved so far are the results of a very fledgling organization with Lean and I’m very excited that as our process improvement skills increase, our ability to yield results within the AQC-type payment mechanisms will improve as well. 

What we’re really driving for is improved health. We talk about outcomes, and ultimately, to get the sort of outcomes we need and want, we have to go through a process of creating professionals who know how to affect behavior.  And then we have to have those skills connect with patients in such a fashion that the patients begin to be involved in improving their health.  And that is a series of adaptive changes that takes time and so I think that it’s a long climb, but we’re well on our way, and it is a good example of the phrase that you sometimes hear, which is “act your way into learning.” We really, every time we do something, whether it works or not, it clarifies to us what will lead to more success - and that’s really the adventure of it.  I think physicians by nature are heuristic, they like to solve problems, the people who work with us - our other healthcare professionals - have found that this adds a new meaning to their work; they all went into healthcare because they have strong empathetic tendencies, they want to see improvement, it’s been frustrating for them to be embedded in systems that don’t deliver results,  and the hope of being involved in something that actually approaches what they dreamed of when they went into healthcare - I think it’s been a personally regenerative sort of process for a lot of folks.  It’s sort of exciting to be around. 

David Harlow:  It sounds like it. I’m wondering as you’re talking a lot about retraining and redirecting and refocusing folks who have been practicing clinicians for a while, and earlier this year or last year the Lucian Leape Institute issued a recommendation to blow up medical education and start again, basically saying – look, we haven’t really addressed the issues of medical errors and cost and to do so we really need to reinvent medical education.  Do you see that as a reasonable approach? An organization like yours is of a size that can afford, in the scheme of things, to engage in this sort of reinvention, but most medicine is still practiced in smaller settings and folks can’t really do that.

Gene Lindsey:  I think you’ve thrown me enough to talk about for maybe 3 hours right there, in that last little soliloquy. Let me just begin with a first thought.  The core of the reason for the formation of Harvard Community Health Plan was to do just that - to change medical education.  Dr. Ebert envisioned it as a teaching practice. I’m a student of history, in a way, and I’ve gone to the Countway library archives, with permission of his wife, and gone down into the bowels of the building where all of his papers are stored and actually read what he wrote back in the ‘60s.  And he imagined then that much of the problem lay in medical education, in the fragmentation of the education that residents and interns and medical students received, where they learned about the kidney and then they learned about the heart and then they learned about the lungs, but they never learned about the whole person.  And he didn’t believe it that was possible in a hospital environment, which is very artificial in a way and he felt that the education needed to move into the ambulatory environment where people could actually see their patients closer to where they lived and closer to where the behaviors that created disease actually occurred.  So that’s not a new thought, and I think it is true that we need to be continuously redesigning medical education - in fact I read recently that some of our medical schools across the country, the one that I remember reading about, Jefferson Medical School for instance in Philadelphia, I think, has a program where they actually admit medical students to the hospital overnight so they can have the experience of being in the hospital to understand what it’s like from the point of view of the patient.  And I think that there’s been a lot of activity towards trying to introduce into the lives of medical students how to assess readiness for behavioral change and things of that sort.  So the progress is slow but it’s not non-existent - I do believe that it needs to continue.  I can tell you that every medical student who graduates from Harvard Medical School now has some sort of experience within Harvard Vanguard.  So it’s not as if we’re at zero; we may not be up to full speed but there is progress towards the issue of retraining, and revamping medical education, and I think Dr. Leape’s Institute is correct that process needs to - I assume that they’re using a lot of hyperbole in their statement and trying to --.

David Harlow:  I don’t think they said they’re going to blow it up - that was me -

Gene Lindsey:  That was you, okay -

David Harlow:  That was me -

Gene Lindsey:  Okay, so you’re the anarchist, okay - but it does need to continuously improve, that’s for sure, in this direction.  So I think that’s also a part of what’s encouraging in the moment.  The term that I’ve really come back to again and again and again are the issues of adaptive change both for patients and also for healthcare professionals. The ways in which we have worked have created a lot of understanding scientifically and yet, as Atul Gawande says, the issue is that we’re not without knowledge, we’re just inept in applying that knowledge. So I see this period of time, over the next 20 years, as the way in which we develop the systems that actually bring the fruits of the bench science and the medical technology that’s developed over the last 30 years to the benefit of more and more people in a more and more efficient fashion.  And that’s about organization and that’s about teamwork and that’s about redeployment.  It’s certainly true that as in many other industries we’re still shackled by the fixed investments that we have and so it’s about a process of, as a society, moving away from nonperforming assets and all of that is difficult because there is a sense of loss that’s associated with it, and that’s got to be balanced by a continuous reminder to ourselves of what it is we’re trying to achieve because that’s the only way that you can find the emotional energy to do the hard things that are necessary to get to a better level.  I don’t believe you can do it for money; I think you have to do it because you believe that it will be better for the community - for the same reasons that you plant flowers around your home: because you want it to look better and to be aesthetically something that provides you a gratification that just a focus on finance can’t ever bring.

David Harlow:  Well, hopefully, it has some of these desired results because otherwise we’re going to bankrupt ourselves.  I heard an interesting figure last month, or earlier this month, where somebody said that in order to support our expanding healthcare spend at the federal level, by 2050 our marginal tax rate will have to be 93%.

Gene Lindsey:  Absolutely.

David Harlow:  So we do have to focus on costs.

Gene Lindsey:  I was in a conversation recently with Jay Gonzales who is the Secretary of Administration and Finance for our State, Massachusetts. Right now we’re spending 41 cents of every dollar that the state collects as taxes on healthcare. You don’t have to be an economist to know that that’s probably not a good idea; it doesn’t leave us much left over for roads, for public safety, for schools, for the cultural things that add meaning to our lives.  It pretty much just makes it about supporting a hospital-based system and that’s really -- I don’t think, I can’t think of anyone who would prefer to go to the hospital versus the symphony.  It’s just not right – now, so let me clarify something: all of the stuff that I’m talking about is not in my mind a sense of adding more dollars to the system, I think that I’m a total proponent of the concept that we have allocated enough of our economy to healthcare we’re just not spending it effectively and efficiently.  If there is any phrase that reverberates through my mind on a daily basis it’s efficient, effective, and that’s the thing that’s appealing to me and if you remember those are two of the six domains of quality.  We have constructed our organizational activities around what the IOM called the six domains of quality, the most important of which is patient-centricity.  We need to design the system to be a benefit to the people who come to us for care - they are our reason for existence. That’s not been true in the past. In the past we’ve designed it for a lot of other reasons, but not always and specifically to benefit the care of people.  Sometimes it’s for the convenience of physicians, sometimes it’s for the perpetuation of august institutions - whatever it’s been, but it’s not always been that the patient’s been at the center of it.  Lucian Leape, whose name you introduced earlier, focused us on safety. The other issues - just quickly -  care needs to be timely if it’s going to be safe and patient-centered, it needs to be efficient and effective if we’re going to have a society that continues to exist, and the last and most important of the domains is it’s got to be equitably delivered -- and probably that has been the biggest conundrum for our country.  How do we get the last 15% of our citizens covered in a fashion that doesn’t destroy the economics for the rest of us and that in and of itself is the most compelling reason to look hard at why and how we waste resources. 

David Harlow:  Well thank you Gene.  I think I’d like to end it there wrap it up there and you’ve given us a lot to think about today and again I thank you for joining me on HealthBlawg. 

Gene Lindsey:  Thank you David.  I really appreciate this opportunity.

David Harlow:  I’ve been speaking with Dr. Gene Lindsey, CEO and President of Atrius Health and Harvard Vanguard Medical Associates.  Thanks again, Gene.

Gene Lindsey:  Thank you David.

Let's Talk Health Care

Harvard Pilgrim Health Care is re-launching Let's Talk Health Care, which started life as former CEO Charlie Baker's blog. There's a series of related discussions going on now in the Let's Talk Health Care Linked In group, sponsored by Harvard Pilgrim.  I've been participating (at the request of the group organizer; disclosure: client) and would like to invite you to do the same.

A salient characteristic of the site and of the group is the focus on three broad categories of care and cost: fostering health and wellness, balancing quality and cost, and redefining care coordination -- all of which are informed by a focus on chronic health care issues.

One of the great successes of modern medicine is the conquest of most infectious disease.  (Equitable global distribution of the tools necessary for eradication is another story -- and some of the more compelling chapters of that story are being told these days by The Bill and Melinda Gates Foundation.) One of the great failures of the modern consumer state is the development of the contemporary couch potato, inactive and over-laden with processed foods, e.g., government-subsidized high fructose corn syrup.  Let's Talk Health Care, like most contemporary health-focused web properties and their sponsors, is laser-focused on wellness (well, OK, everyone has an agenda, and Harvard Pilgrim is an insurance company, so the focus spreads from wellness to encompass a broader focus on affordability of care as well). Targeting prevention and management of chronic diseases that sap health from people, productivity from their employers, and cold, hard cash from all of us is critical; employees, employers, and buyers of goods and services are all called upon to pay the piper, so we have a community of interest here.

As an example of the conversations going on in the group, take a current thread that I kicked off, regarding employers partnering with employees around health care and wellness.  I invite you to join in and offer your perspectives -- what works, what doesn't work, what would you do if you were king or queen of the world, etc.  In my humble opinion, a ton of resources are spent on wellness programs in an unscientific manner -- meaning they are not necessarily spent addressing issues that are, or should be, of great concern to the employee population targeted, and they are not necessarily spent on interventions that work, or that work on a long-term basis. For example, the health reform law is throwing additional money in this direction: $200 million in grants will be available to small employers kicking off wellness programs since the law was passed, and the law also provides the opportunity for employers to subsidize health insurance premiums in exchange for wellness program participation (the maximum premium discount has been raised from 20% to 30%).  Unfortunately, observations of some participants in this on-line conversation support my understanding of the situation here -- incentives to participate in wellness programs in the form of cash (or insurance premium discounts) do not seem to motivate folks sufficiently.  

Collectively, we need to get a bigger bang for the buck in this arena -- and to do that, we need to spend our money more wisely.  Some people are focused on figuring out just how to do that, including, for example, BJ Fogg ("Persuasive Technology"), who I was glad to see present at a conference here in Boston a year or so ago, and entrepreneurs behind such online offerings as HealthMonth and StickK (as well as numerous folks behind stealth and beta sites in this space, some of whom I'm working with now) -- which seek to encourage healthy behavior modification in part by keying into the social levers that affect human behavior.

The goal here is to get the conversation going, and to surface ideas that can benefit all of us --employers, employees, payors and providers.  

The days of couch potatoes saying "I'll take a pill for that" are over.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

Occupy With Grace

As patients, as family members, as friends, as health care providers, we have all faced end-of-life issues at one time or another, and we will face them again.  And again. 

This weekend, for the fourth year in a row, the "Engage With Grace" message is being broadcast virally, through a "blog rally," at a time when many people are with family and friends over the long weekend.  The point is: we all need to have the potentially uncomfortable conversation with people close to us about what kind of treatment we would want, and they would want, if incapable of making or communicating health care decisions.  

(If you are interested in also exploring other aspects of patient self-determination, then I invite you to check out a few other resources: (1) e-patients.net, the blog of the Society for Participatory Medicine, and please consider joining the Society, (2) The Walking Gallery and other work of Regina Holliday, patient activist and artist and (3) my Health 2.0 vlog - brief interviews on the topic of data liberation.) 

End-of-life decision-making has long been an issue of great personal and professional interest to me, and I am proud to have played a role in having out-of-hospital DNR orders recognized in Massachusetts by EMS providers, as an example. 

Download your copies of the Massachusetts health care proxy form or other states' proxy or living will forms -- and add specific instructions about nutrition, hydration, and anything else that is important to you so that everything is crystal clear.  My mom kept a stack of living will forms in the dining room when I was growing up, and was not shy about raising the issue with dinner guests and offering to witness their advance directives.  Having the conversation is a starting point; we all need to follow through and make sure that our loved ones' wishes are documented, placed in medical records, discussed with physicians and other caregivers, and honored. 

When I have the opportunity to speak to groups of lawyers or health care providers, I often ask for a show of hands: how many of you have health care proxies?  The percentage seems to have increased over time, but it is still not where it needs to be.  If groups that should be above average in this respect are not all raising their hands, then we clearly have a lot to do in terms of educating the general public about the need to have the sometimes difficult conversation with friends and family members.  That's what the Engage With Grace project is all about.  And with that, I turn over this post to Engage With Grace:

Occupy With Grace

Once again, this Thanksgiving we are grateful to all the people who keep this mission alive day after day: to ensure that each and every one of us understands, communicates, and has honored their end of life wishes.

Seems almost more fitting than usual this year, the year of making change happen. 2011 gave us the Arab Spring, people on the ground using social media to organize a real political revolution. And now, love it or hate it - it's the Occupy Wall Street movement that's got people talking.

Smart people (like our good friend Susannah Fox) have made the point that unlike those political and economic movements, our mission isn't an issue we need to raise our fists about - it's an issue we have the luxury of being able to hold hands about.

Occupy With Grace Logo

It's a mission that's driven by all the personal stories we've heard of people who've seen their loved ones suffer unnecessarily at the end of their lives.

It's driven by that ripping-off-the-band-aid feeling of relief you get when you've finally broached the subject of end of life wishes with your family, free from the burden of just not knowing what they'd want for themselves, and knowing you could advocate for these wishes if your loved one weren't able to speak up for themselves.

And it's driven by knowing that this is a conversation that needs to happen early, and often. One of the greatest gifts you can give the ones you love is making sure you're all on the same page. In the words of the amazing Atul Gawande, you only die once! Die the way you want. Make sure your loved ones get that same gift. And there is a way to engage in this topic with grace!

Here are the five questions, read them, consider them, answer them (you can securely save your answers at the Engage with Grace site), share your answers with your loved ones. It doesn't matter what your answers are, it just matters that you know them for yourself, and for your loved ones. And they for you.

The One Slide

We all know the power of a group that decides to assemble. In fact, we recently spent an amazing couple days with the members of the Coalition to Transform Advanced Care, or C-TAC, working together to channel so much of the extraordinary work that organizations are already doing to improve the quality of care for our country's sickest and most vulnerable.

Noted journalist Eleanor Clift gave an amazing talk, finding a way to weave humor and joy into her telling of the story she shared in this Health Affairs article. She elegantly sums up (as only she can) the reason that we have this blog rally every year:

For too many physicians, that conversation is hard to have, and families, too, are reluctant to initiate a discussion about what Mom or Dad might want until they're in a crisis, which isn't the best time to make these kinds of decisions. Ideally, that conversation should begin at the kitchen table with family members, rather than in a doctor's office.

It's a conversation you need to have wherever and whenever you can, and the more people you can rope into it, the better! Make this conversation a part of your Thanksgiving weekend, there will be a right moment, you just might not realize how right it was until you begin the conversation.

This is a time to be inspired, informed - to tackle our challenges in real, substantive, and scalable ways. Participating in this blog rally is just one small, yet huge, way that we can each keep that fire burning in our bellies, long after the turkey dinner is gone.

Wishing you and yours a happy and healthy holiday season. Let's Engage with Grace together.

To learn more please go to www.engagewithgrace.org.This post was developed by Alexandra Drane and the Engage With Grace team.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

Privacy and Security: Joke or No Joke?

The Wall of Shame welcomes Sutter Health. Another computer with unencrypted protected health information on over 4 million patients - gone. Now, those guys are pretty smart, so why don't they encrypt all computers with PHI?  One of life's persistent questions.  I mean, I can accept the fact that a health plan operator like Cignet Health might have issues with getting a grip on HIPAA compliance, but Sutter Health?What were they thinking? Can't happen here?  Encryption is a drag?  It's an easy way to avoid major egg-on-face and to avoid spending significant coin on PR, credit reporting services, and potentially on court judgments -- all in addition to significant administrative fines payable to HHS and state regulators.

So the federales are piloting the HIPAA audit program. I know it's required by the HITECH Act, but who believes that it will motivate behavior change?  Anyone?  Sutter Health was clearly not motivated to seek a safe harbor that would have made the loss of 4 million patient records a non-event.  I know encryption can be a drag, but I'm not a techie. If you are, I invite you to educate me (and the other non-techies out there) on the question of how miserable it really is to have to deal with encrypted data; if you're really a techie, write a program to enable light-touch encryption that doesn't interfere with use of data.

Whether or not encryption is miserable, we should be asking: Why is this data on a barely secured computer (password-protected desktop) in the first place? Shouldn't it be stored on a server that stays in a secure facility, or in a secure private cloud?

Furthermore, as data loss incidents like this keep happening -- even among other industry leaders (see, e.g., Mass General) -- perhaps we need a new framework for thinking about access to health information. If we knew for sure that employment and insurance decisions would not be affected by the availability of otherwise private health record information, perhaps we would be more sanguine about their release. Perhaps government resources would be better spent on beefing up education and enforcement in those arenas (vs. auditing and enforcing compliance with privacy and security standards).

David Harlow 
The Harlow Group LLC
Health Care Law and Consulting 

TEDxCambridge 2011 Twitter Feed

I'm at TEDxCambridge today.  Should be interesting.  Follow along on Twitter at #TEDxC or right here:

David Harlow 
The Harlow Group LLC
Health Care Law and Consulting 

David Harlow quoted on HIPAA and Health Care Social Media in AIS Health's Health Business Daily and Report on Patient Privacy; Speaking at HANYS Social Media Conference Today

I was interviewed for an article on AIS Health that came out last week. The title of this article -- on health care social media and regulatory and legal issues that health care providers may face in using these tools -- struck me as being tinged with hysteria (hence the selection of the artwork accompanying this post):

HIPAA Dangers Lurk on Facebook; Ongoing Policy Revisions Are Advised

Cooler heads should prevail.

There are clearly things to be concerned about when embarking upon the implementation of social media tactics in the service of broader strategies and organizational goals.  Decisions about goals must be made.  Terms and conditions for staff, on the one hand, and patients, families and caregivers, on the other, need to be clear and comprehensive.  And expectations regarding employee use of social media, whether as an "official" voice of the organization, or as a person known to be associated with the institution and therefore acting as a brand ambassador whenever on line or in real life, need to be carefully developed and communicated.

I'm speaking today at the Healthcare Association of New York State (HANYS) social media conference, about these and related issues.  Just this morning, in my hotel-delivered newspaper, there's a front-page story on Facebook and privacy concerns.  These issues are persistent, no matter what platform you are using, or are considering using. As I have said before, at a policy level, your approach needs to be platform-agnostic.

Overall, careful planning will improve the chances that a health care provider will be able to effectively leverage the reach of social media for its message without running afoul of legal and regulatory land mines.

David Harlow 
The Harlow Group LLC
Health Care Law and Consulting