Slide 1
Robert L. CoffieldFlaherty, Sensabaugh & Bonasso, PLLC
Gerald Jud E. DeLossMinneapolis, Minnesota
PHRs, Health 2.0 and the Impact of Social Media on Health
Care
American Health Lawyers AssociationAnnual Meeting July 1,
2009
7/1/2009Robert L. Coffield, Esq.1
PHR DefinedA tool for collecting, tracking and sharing
important, up-to-date information about an individuals health or
the health of someone in their careAmerican Health Information
Management Association ("AHIMA") and American Medical Informatics
Association ("AMIA")
7/1/2009Robert L. Coffield, Esq.2
HITECH DefinitionAn electronic record of PHR identifiable health
information . . . on an individual that can be drawn from multiple
sources and that is managed, shared, and controlled by or primarily
for the individual
7/1/2009Robert L. Coffield, Esq.3
PHR 1.0First generation PHRsStand-alone PHRsRequire patients to
gather and enter their own informationTethered PHRsProvided by a
health plan, provider, or employer sponsor who populates the PHR
with information
7/1/2009Robert L. Coffield, Esq.4
PHR 2.0Not merely a data collection application Platform for the
electronic aggregation and storage of health informationFoundation
for various applicationsPersonal Health Information Networks part
of NHIN
7/1/2009Robert L. Coffield, Esq.5
Impact of PHRsComprehensive shift in the way health information
is used, maintained, and storedImpact on means and methods for
patients, health care providers and payers to maintain, use,
control, and disclose health informationThe current, decentralized
system of records maintained by multiple providers and entities at
multiple locationsTransformed into a centralized record maintenance
system that may rely on personal health information networks
("PHINs"), where the PHR serves as the central repository
7/1/2009Robert L. Coffield, Esq.6
Data OwnershipWho owns health information?The physician?The
plan/insurer?The patient? Under traditional theory, providers own
the medical records they maintain, subject to the patients rights
of access in the information contained in the record
7/1/2009Robert L. Coffield, Esq.7
Data OwnershipPhysicians and other healthcare providersMaintain
ownership of health information results in a greater likelihood of
maintaining a relationship with the patientPatient who desires to
change providers faces difficult task in locating all sources of
the health information and requesting that it be transferred to a
new providerRehash in the form of health intake questionnaires,
health and physical history examinations, and tests which may not
have been adequately communicated
7/1/2009Robert L. Coffield, Esq.8
Data OwnershipPlan ownershipUnderwriting and utilization review
activitiesWhether coverage may be extended or whether a
pre-existing condition is presentAggregate the data in records or
de-identify the information to be used, disclosed, sold, or
manipulated for a variety of medical and economical reasons
7/1/2009Robert L. Coffield, Esq.9
Data OwnershipThe PHR VendorPatient privacy advocates have
expressed concern over what use PHR vendors will put to the health
informationAn individual executes an authorization then the vendor
may use or disclose the health information in any manner it wishes,
since HIPAA would no longer applyNew HITECH Act provisions
(discussed below) will place limits on these uses but some PHR
vendors have taken an initial position that HITECH will not apply
because an authorization, among other things, wll relieve them of
compliance
7/1/2009Robert L. Coffield, Esq.10
Patient OwnershipPatient ownershipResults in framework where
medical, expense, well-being, and utilization are aligned within
one partyPatient has an incentive to keep costs to a minimum by
avoiding multiple or repetitive proceduresPatient has an incentive
to or at least the means to monitor their health or well-being by
becoming actively involved in the process Patients have an
incentive minimize the unauthorized disclosure or use of their
health information
7/1/2009Robert L. Coffield, Esq.11
DiscriminationUnder HIPAA, a group health plan is prohibited
from disclosing protected health information to a plan sponsor
(typically an employer) for other than plan administration
functionsIn addition, the plan sponsor must certify that it will
not use or disclose the protected health information for
employment-related actionsHealth plans, including group health
plans offering PHRs to their enrolleesMust ensure that the PHR is
either not accessible by the group planAny health information
contained within the PHR which is accessible by the group plan is
not shared with the plan sponsor for other than administration
functions
7/1/2009Robert L. Coffield, Esq.12
DiscriminationIn addition to HIPAA, employers and possibly
insurers -- must consider the implications Americans with
Disabilities Act (ADA)Family and Medical Leave Act (FMLA)Similar
State laws
7/1/2009Robert L. Coffield, Esq.13
HITECH ActUnder the HITECH Act, a personal health record meansAn
electronic record of PHR identifiable health information . . . on
an individual that can be drawn from multiple sources and that is
managed, shared, and controlled by or primarily for the
individual.PHR identifiable health information is broadly defined
as individually identifiable health information, relying on the
HIPAA definition and includes, with respect to an individual,
information . . . that is provided by or on behalf of the
individual and that identifies the individual or with respect to
which there is a reasonable basis to believe that the information
can be used to identify the individual.
7/1/2009Robert L. Coffield, Esq.14
HITECH ActBreach Notification RequirementsThe HITECH Act imposes
breach notification requirements on PHR vendors and entities that
offer products and services through, or that access information
from, a PHRRequires each vendor of PHRs, and each designated PHR
entity, following the discovery of a breach of security involving
unsecured PHR identifiable health information that is in a PHR
maintained or offered by such vendor, to provide notice to the
Federal Trade Commission (FTC) and to any United States citizen or
resident whose unsecured health information is acquired by an
unauthorized person as a result of the breach Third party service
provider that provides services to a vendor of PHRs or a designated
PHR entity in connection with offering or maintaining PHRs (or
related products or services) and that accesses, maintains,
retains, modifies, records, stores, destroys, or otherwise holds,
uses, or discloses unsecured PHR identifiable health information
must notify the PHR vendor (or the designated PHR entity) of a
breach of such information, which notice shall include
identification of each affected individual
7/1/2009Robert L. Coffield, Esq.15
HITECH ActThe HITECH Act generally requires that breach notices
be sent without unreasonable delay and in no case later than 60
calendar days after discoveryNotices to affected individuals
generally must be sent by first class mail or may be sent by
electronic mail if the individual has expressed a preference for it
or, in an urgent situation, by telephoneFurther, if 10 or more
individuals require notification for which there is insufficient or
out-of-date contact information, then the notifying entity is
required to place a conspicuous posting on its website homepage or
place a notice in major print or broadcast media, including major
media in geographic areas where the individuals affected by the
breach likely resideIf the breach involves more than 500 residents
of a state (or jurisdiction), a PHR vendor or designated PHR entity
also must provide notice to prominent media outlets serving the
areaA PHR vendor or designated PHR entity must notify the FTC
immediately if the breach involves more than 500 individuals. The
FTC must notify HHS of such breaches Violations of the notification
requirements related to PHR identifiable health information will be
treated as unfair and deceptive acts or practices under the Federal
Trade Commission Act
7/1/2009Robert L. Coffield, Esq.16
WHAT IS SOCIAL MEDIA?
technology + mobile tools + information + community +
user-generated content + collaboration + social interaction
Do YOU use social media and networks? Are you LinkedIn? Do you
Facebook?Do you Tweet? Do you have a blog? Do you read/comment on
blogs?Do you use RSS? Do you regularly look at your online
reputation via Google.Are you lifestreaming via Posterous?Do you
know what Google Wave is?11% of American adults use a service like
Facebook/Twitter to share updates about themselves or to see the
update of others. Pew Internet & American Life Project, Dec.
2008Where are YOU?
Where Is EVERYONE? 210 Years of Information. Thomas Baekdal
http://www.baekdal.com
7/1/2009Robert L. Coffield, Esq.202009 Everything is social.
Traditional websites are dying because of relentless force of
constant stream of rich information from social networks.
A Glimpse Into the State of Social Media200M active users; 100M
log on every day; 30M mobile usersIf country 5th largest behind
China, India, US & IndonesiaAverage user has 120 friendsFastest
growing demographic over 35850M photos uploaded each month1B pieces
of content shared each week
A Glimpse Into the State of Social MediaAmazing growth! Unique
monthly visitors:Jan. 2008: 500,000Dec. 2008: 4.43 MMarch 2009: 8 M
Largest user demographic: 35-49 Users more mobile less tethered by
technologyTwitter replacing RSS and Google search real time
results
WEB 2.0THENAuthor-GeneratedControlled messageReadStatic
WebSoftware ReleaseDesktop ComputingCentral dataWorld Wide Web
NOWDynamic and User-GeneratedMental chatter & wisdom of
crowd Read, write and collaborateParticipatory WebSoftware as
ServiceCloud ComputingDecentralized dataWorld Live Web
social media = 297 hospitals + youtube + facebook + twitter +
blogs
social media = doctor + disruptor + technology + e-visits +
health stream
hairball + health data + technology + consumer rights + viral
campaign = e-social media health movement
The WORLD has changed . . .
. . . and so has the HIT landscape.
7/1/2009Robert L. Coffield, Esq.28Stepping back and thinking
outside (inside) the box
Without CHANGE . . .
Is it a time for HEALTH CONSUMERISM? Demographics Pig In Python
(79M Baby Boomers)Rise in chronic illness and complexity of
treatmentRising cost of health care and cost shift (employer you
and me)Governments inability to afford uninsured/universal
coveragePersonalized medicine and genomicsThe role of PHRs and
HEALTH 2.0:Shift to consumer-centric (PHR) model of health
dataHealth consumer is at the center of integrated medical info
networkNew technology tools to treat and reduce/manage chronic
conditionMobile health to monitor/feed health data (the desktop to
the pocket)Cost transparency/reform to the current reimbursement
modelConsumerism drives the need to get information and exercise
control over yours/my health and care decisions
WHAT IS HEALTH 2.0?
Health 2.0 by Scott Shreeve MD. Creative Commons Attribution,
Non-Commercial, Share Alike 2.5 License.Updated on 5/30/07.
Health 2.0 = social software + web/cloud based + light weight
tools + consumer/provider collaboration
HOW IS HEALTH 2.0 IMPACTING CONSUMER DRIVEN CAREHealth 1.0Opaque
SystemPassive PatientPhysician AuthorityInsurance AdversarySystem
GeneratedHealth Care
Health 2.0TransparencyEngaged ConsumerPhysician AdvisorHealth
Plan AdvocateUser GeneratedHealth and Wellness
Personal Health Records
Personal Health Records
PHR and Health Platform
Personalized Health Search
Personalized Physician Search
Collaborative Medical Information Wikis
Physician Social Community
Web BasedPractice Management
Virtual Concierge e-Health Practice
Practice Management Tools
Health Support Community
Disease Communities Capturing & Sharing Outcome Data
Consumer Facing Health Tools
Consumer Facing Health Tools
Personal Health Tools
Health Consumer Tools
Reinvented Health Care Marketplace
Consumer Health Financial Tools
Health Financial Tools
Insurance Coverage/Discovery
Blogging/Med Mal/Privacy
Medical Identity Theft/Privacy
Negative Review/Libel
Contract Law/Libel/Litigation
EHRs/PHRs/HIEs/Malpractice
User Agreement/Contract Law
Health Data Ownership
Privacy/Regulatory
Patient Rights/Privacy
Discovery/Employment
Employment(from 30 ways to lose your job on Twitter)
Legal Ethics
ONE SLIDE PROJECT: Engage With Grace Project
Questions
Robert L. CoffieldFlaherty, Sensabaugh & Bonasso, PLLCHealth
Care Law [email protected]: @bobcoffield
Gerald Jud E. DeLoss Minneapolis, MinnesotaMinnesota Health IT
[email protected]: @gdeloss
Slides Available via SlideShare
engagewithgrace.org TheOneSlideProject
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