How Much Is That HIPAA In The Window?

Back in the years when I worked for a YMCA summer camp, counselors took great delight in telling ghost stories guaranteed to scare the daylights out of their campers. As they sat around the campfire describing the terrible fate awaiting the unfortunate teenager who encountered Greenie (a favorite monster made out of fallen leaves who could be heard in the rustling of the night wind through the forest), the counselors would place bets on which sleeping bags would be soaking wet in the morning.

Whether it’s the monster hiding under the bed, in the closet, or in the laundry room, childhood fears are easily manipulated by adults. With careful aim, a red-hot button can be pushed which triggers an irrational response that defies common sense. The level of paranoia in full-grown professionals that can be spiked by a perceived threat is often astounding.

A tremendous amount of fear, loathing and paranoia has been gripping the medical transcription community as it struggles to comprehend and comply with the proposed new HIPAA regulations. Some MTs and MTSOs are terrified that Big Brother will come pounding on their doors, backed by tanks, helicopters and storm troopers toting AK-47 machine guns who are determined to impose a $25,000 fine for failing to encrypt a file.

“The sky is falling,” they shriek. “The skyis falling! What if I get fined for noncompliance?”

While the more paranoid members of the MT community fear they might have to build a bomb shelter to protect their transcribed documents, others have not been so quick to panic. In fact, there is a distinct subset of fairly level-headed medical transcriptionists who have sat on the sidelines for the past year wondering if all the hysteria surrounding issues of HIPAA compliance isn’t another case of policy wonking gone bad. They wonder if the Empress Donna Shalala (or whoever ends up publishing the final draft of HIPAA at the Department of Health & Human Services) is wearing no clothes.

“But it’s the law!” cry the true believers. “HIPAA is the law!”

Let me tell you something, folks. There are laws against jaywalking, smoking marijuana, driving under the influence of alcohol, and performing oral sex. However, lots of people -- including some physicians I know -- do these things all the time as part of their activities of daily living. If they’re not afraid of losing their licenses and going to jail for being human, should medical transcriptionists be cowering in abject terror at the mere thought that HIPAA is on the horizon?

I think not.

In his brilliantly written book entitled The Tipping Point (ISBN # 0-316-31696-2), author Malcolm Gladwell stresses that little things make a big difference in how a concept can infiltrate and impact society. Gladwell theorizes that ideas spread like plagues and must reach a critical or “tipping point” before they can gain a solid foothold in any culture. Citing situations as diverse as the midnight ride of Paul Revere, the spread of the AIDS virus, the drop in the crime rate on New York’s subways and the rebirth in popularity of Hush Puppies shoes, the author does much more than merely illustrate how ideas spread and gain acceptance. With fascinating insight, Gladwell explains how, despite the best of intentions, some products and policies can fail for market-driven reasons that their creators never anticipated.

Much of Gladwell’s theory is based on what he calls “the stickiness factor.” In other words, in order for a message to be accepted and embraced, its packaging – as well as the content of the message – must be so irresistible that it will “tip” over to mass market appeal.

Let’s stop for a minute and think about how successfully the new HIPAA regulations are being marketed. Most people in healthcare understand the need to maintain confidentiality of medical records. Indeed, some of us are rather strident champions of the concept. But we work in a culture which embraces a severe double standard. When it comes to protecting patient confidentiality, many doctors stick to the old routine of “Do as I say, not as I do.”

I need look no further than my own client base to find one physician (a former Chairman of his hospital’s Medical Records Committee) who routinely dictates reports over a cell phone from his first class seat on an airplane. Should medical transcriptionists be lying awake at night worried that someone might pass by their monitors and read a single word on their screen when this doctor’s seat mate can probably read the patient’s chart as my client continues to dictate while popping peanuts into his mouth?

There are plenty of medical transcriptionists in this nation who could start pointing fingers and naming physicians whose activities of daily living routinely compromise the confidentiality of their patients’ medical records. “It just strikes me as putting a Band-Aid on a gaping wound for me to be worried about this level of security when the information is being dictated in earshot of who knows how many people. I transcribe tapes dictated by a doctor as he is walking around and driving his car,” notes transcriptionistRae Morrill. “If he stops fast, his recorder will go out the window, tape and all. Whether all the charts are piled up on his front seat or whether he is dictating all this from memory, I have no clue. With another regular client, I heard they found a chart in the doctor's wife's trunk.... apparently because they had traded cars at some point!”

So let’s start talking about pressures of the marketplace. I recently received a call from a potential client that handled Workers’ Comp reports for a nationwide community of physicians. The client wanted a toll-free 800 number, 24-hour turnaround and insisted that all work be done in MS Word v. 6.0. After I fell off the chair laughing, I politely explained that my company had no intentions of working in Word 6.0 and doubted that anyone currently working in Word 97 or Word 2000 would want to try coping with the quirks of Word 6.0. Why, I asked, was the issue of Word 6.0 non-negotiable? “Because it’s for the government.”

The government doesn’t always get things right. Those in the business sector have already discovered that files created in Word 97 or Word 2000 are not backwards compatible with Word 6.0 So, in order to take on a government contract, should an MTSO revamp his service to accommodate a client’s demand for obsolete software? Or should he tell the government that it has a choice of upgrading its operations to the latest version of MS Word or taking a hike?

There are two factors in the above-mentioned situation which prevent it from “tipping” toward success: ease and cost of implementation. If it were easy for an MTSO to have all of its medical transcriptionists convert over to using Word 6.0, that would eliminate one obstacle to success. But what are the costs of installation and training? And who is supposed to swallow those costs?

The question of who pays for certain changes hangs over the proposed HIPAA regulations like a cloud of doom – particularly when one considers the issue of producing an audit trail of any and all people who have opened a file. Keep in mind that, in the process of transcribing a dictated report, a text file is created by the medical transcriptionist which may be opened by one, or possibly two proofreaders before being sent to the client. Only after that text file has been delivered to the client (and is integrated into the client’s electronic medical record system) does HIPAA’s audit trail really become important.

But as hospitals and other healthcare facilities prepare to develop Chain of Trust Business Partner agreements, those which demand an audit trail from MTSOs may be in for a big surprise. “This would require switching to an operating system that keeps file access logs and allows you to set read/write/execute permissions per file. That feature allows you to set which user or group of users have what kind of access from the OS,” explains Mike DeTuri. "Unfortunately, DOS and Windows 9x or ME won't cut it. So this kind of control would require switching your OS to something like Linux, Windows NT or Windows 2000. You would essentially have to become a system administrator for your home computer.”

The current philosophy is that if MTSOs do not toe the line, they will not get the work. Aren’t we forgetting something? Hospitals don’t want to pay any more than they have to for medical transcription. Hospitals that are struggling to get their overflow dictation transcribed frequently balk at the prices being quoted in the marketplace.

But MTSOs who are forced to swallow the capital costs of switching over to a new operating system and reinventing their service in order to meet HIPAA’s requirements are going to pass those costs right along to their customers with rate hikes that might double the cost of transcription. Why? It doesn’t matter whether you are a one-person operation, a small to medium-sized MTSO or an industry giant like MedQuist with 8,000 transcriptionists. Changing operating systems is a costly project.

• If you are an employer, how many new machines must you provide to people who are working at home?

• What about the training costs involved in bringing home-based MTs online who eventually leave your service to go work somewhere else?

If your business depends on working with independent contractors, will your insistence that ICs switch to a different operating system put so much control in your hands that it makes it impossible to use independent contractors? Would that level of control force you to reclassify your business/IC relationship as an employer/employee relationship? Because if it does, an MTSO could easily become liable for past taxes and some very unpleasant tax penalties.

Who’s going to pay for all this? How are they going to pay for it? I’ll tell you how they’ll pay for it. MTSOs will pass the costs on to their customers in a very creative way. They’ll look at what banks have done with ATM fees, what airlines have done by adding “fuel surcharges,” and what regional airports have done by charging “facility usage” fees to each passenger who gets on or off a plane. Imagine the following scenario:

As they try to force transcription vendors into compliance with the new HIPAA regulations, hospitals and other healthcare providers start to demand that MTSOs produce an audit trail as a necessary part of their contracts. In order to cover the costs of changing all their operating systems over to Linux, Windows-NT or Windows 2000, the membership of the Medical Transcription Industry Alliance (MTIA) votes to adopt a new, industry-wide processing fee of $3 per document which covers the creation and formatting of a new file by a transcriptionist. This fee also allows one or two people to access the file for purposes of proofreading or “quality assurance” before it is delivered to the client. This new billable item opens up the doors for an additional revenue stream within the medical transcription industry. Multiply that processing fee times the number of documents produced by each MTSO and you have an instant remedy for the costs of changing operating systems. When hospital administrators and purchasing agents go ballistic at the unexpected extra cost for medical transcription, they find themselves confronted with some nasty questions:

• It costs MTSOs money to provide this new service that is being demanded by you, the client. Did you think we were going to do this for free?

• You say you don’t want to pay the industry’s new processing fee? Considering the number of physicians who mark their reports “Signed But Not Read,” are you telling us that you’re unwilling to pay for quality assurance? Would you use that defense in a JCAHO audit?

• Which is more important to you from a risk management standpoint? An audit trail to ensure compliance with the new HIPAA regulations or a level of quality assurance that will not compromise the quality of patient care? Because if you want these services, you have to be willing to pay for them.

In 1999, the government unilaterally decided that employers could be held responsible for maintaining OSHA standards in the home offices of employees who were telecommuting. As soon as the business sector realized the cost of performing onsite inspections in the private homes of their employees (environments over which employers had no control), and the fact that this regulation would leave them vulnerable to all kinds of liability for Workers’ Compensation claims, it wasted no time in flexing its muscle to send a sobering message to Washington. With a stunning vehemence and unanimity, the business sector told OSHA to take its new regulation and stick it where the sun doesn’t shine. And do you know what happened? The government backed down.

It happened in 1999.

And it can happen again.