Final Stage 2 Meaningful Use Regulations

The final version of the Meaningful Use regulations, including the final Stage 2 requirements, were published at the end of August.  A copy of the full regulations can be found here: 2012-21050 (you can also get these from the Federal Register’s web site; the final regulations were published on September 4, 2012.)  The final version of the Stage 2 regulations are similar to the interim regulations that were published earlier this year (and discussed in this post).  However, the final regulations made some changes to what’s in store for providers trying to obtain their incentive payments from the interim regulations.  This article is intended to briefly cover these changes.

Core Criteria Changes

First, the Stage 2 metrics for specific Core criteria were reduced from the interim regulation targets.  For example, for provider use of computerized order entry (§ 495.6(j)(1)), the interim regulations for Stage 2 required that 60% of orders be computerized.  The final regulations softened this so that only 60% of medication orders be electronic, leaving the target of 30% for lab and radiology orders where it had been under Stage 1.  Also, the Stage 2 target for electronic prescriptions in the interim regulation was to be 65% of all prescriptions (up from 40% in Stage 1).  In the final Stage 2 regulation, the metric has been reduced to 50%.

There was also a reduction in the final Stage 2 metrics for (j)(13) and (j)(14) requirements for patients that transition care.  The interim Stage 2 regulations had a metric of 65% of patients with transitions of care have a medication reconciliation performed, and for outgoing transitions, the provider prepare a care summary for the receiving provider.  The final regulations reduce this metric to 50% where it stood when these were Stage 1 Menu criterion.

The final regulations also reduced the target metric for the criterion for using electronic messaging to communicate with patients in (j)(17).  The interim regulations had set the metric at 10%; the final regulations reduce this to 5%.

However, there are other changes that may pose some dilemmas for providers.  The interim Stage 2 core criterion include one for patient electronic access to health information.  This originally was a Stage 1 Menu criterion; it becomes a core criterion in Stage 2.  The metric in the interim Stage 2 regulation was that 50% of patients receive timely access to information in their chart (up from 10% in Stage 1).  However, in the final Stage 2 regulation, there is a second aspect to the metric – namely, that 5% of patients actually download information made available to them.  It is not clear how this will be measured by the software, and it is also not clear how providers will cause patients to download the data made available to them.

An additional metric was added to (j)(14) between the interim and final Stage 2 regulations.  Not only must 50% of patients have a care summary prepared by the provider as part of the transition of care, but 10% of these transitions must involve the electronic exchange of data between the two providers.  This core requirement will tend to incentivize referral patterns between providers that are able to send and receive electronic data between them or through regional health information exchanges.  As a result, those that are unable to participate in such exchanges will become increasingly isolated.

Menu Criteria Changes

There were also two changes in the Menu criteria between the interim and final Stage 2 regulations.  First, the target metric for the first menu criterion, access to imaging results in the EHR, was reduced to 10% in the final regulations from 40% in the interim regulations.  Second, a new menu criterion was added to encourage providers to actually document notes into structured data within the EHR system, and setting the metric to 30% of patients seen during the period.


Trademarks 101

What are trademarks?

Trademarks are a word or words, an image, or other similar marking that identify the source of a product or service.  Historically, trademarks were used in various aspects of commerce, including marking goods that were shipped so that, in the event of a shipwreck, the owner of the goods could claim them instead of the goods escheating to the crown.  In the age of guilds, individual craftsmen would have a mark they would apply to goods they individually made so that the guild would be able to trace a product back to its individual maker in the event that the good did not meet the standards of the guild.  Trademarks have even been found on ancient goods in the Roman empire.[1]  Marks have been around for a long time and serve an important purpose.

Today, there are numerous trademarks that are almost universally recognized: Coke, Pepsi, McDonald’s, Cisco, IBM, HP, Ford, Facebook.[2]  All of these words signify a particular maker of a product or service – Coke and Pepsi represent their respective soft drink products; McDonald’s represents a certain brand of fast food (as distinguishable from Checker’s, Red Robin, Wendy’s, Burger King, and many others); Cisco, IBM, and HP are all respective computer and software makers; Ford for cars; Facebook for a web site that introduced the world to social media.

Why should I register a mark?

Intellectual Property, of which trademarks are one kind, presents specific challenges for those that want to own and protect it from use by others.  Unlike physical property, which you can touch (and potentially can protect by a lock, fence, or gate), intellectual property is intangible.  As a result, securing IP requires a different action to protect it from infringement or dilution by others.  Prosecuting and securing a registration is an important way to mark out the boundaries of your intellectual property.  The research required prior to registration of a mark helps a prospective trademark owner determine if a proposed mark is already in use, and if so, for what product or service.

This research is important to help a prospective trademark owner from using a mark that infringes on someone else’s intellectual property, thereby avoiding unnecessary litigation.  In addition, a “cleared” mark is more likely to be distinctive as a brand for its associated product or service, which of course is the whole point of having a brand name in the first place – to distinguish your product in the market place.

Registration of a trademark that is in use in commerce also helps a mark owner to protect that mark from use by others without authorization, as the registration itself represents constructive notice to a would be mark user to not use the mark.[3]  In addition, a mark registration helps simplify a trademark owner’s infringement law suit against unlicensed users, as a registered mark carries with it the presumption of validity as to the mark (and five years after registration, the registration itself becomes conclusive evidence of ownership as to the registered mark).[4]  Moreover, registration provides an owner with more remedies than an unregistered mark owner under federal law.[5]

So while registration is not mandatory, there are strong incentives for a trademark owner to register his mark, particularly if you plan to be in business for the longer term with a particular product or service.

In addition, a substantial portion of the value of businesses today comes from a business’ intellectual property, including the brand names used to distinguish its products and services in the market.  In fact, as we move further into an “information economy,” I would conservatively estimate that a majority of a business’ value comes from its intellectual property.  Identifying and protecting a brand name is a key step in the business planning process for any business.  Also, because of the widespread adoption and use of the internet globally, protecting one’s brand name from infringement is more important than it ever has been for business.

[1] See Francis, Collins, “Patent Law,” 5th Edition at page 983 and footnote a that provides further reading material for the history of trademarks.

[2] Marks referenced above are the property of their respective owners.  None of the mark owners are affiliated or suggested to endorse the statements of the author of this article.

[3] See 15 U.S.C. § 1072.

[4] See 15 U.S.C. §§ 1065, 1115(b).

[5] See, for example, 15 U.S.C. § 1111.

Cloud Computing Primer for Attorneys

The following is my presentation file from the annual Maryland State Bar Association meeting.  I was a panelist on the topic of Cloud Computing: Fact or Fiction on June 15, 2012.  My presentation discussed some of the basic issues about cloud computing, such as what it is, the cost savings that may be possible by moving to the cloud, some of the security issues with computing, and some of the ethics issues that practicing attorneys face when making decisions about computing systems.

If you have any questions about this presentation, please feel free to email or call me to discuss them.  Thanks.

Cloud Computing Fact or Fiction

FarmVille, CityVille, This-Ville That-Ville

There are an almost endless number of online games.  Some of them end in -ville.  For that, we have game maker Zynga to thank.  Zynga recently had an initial public offering (IPO), where they became a publicly traded company.  (Zynga, by the way, had set its initial stock price at $10 per share.  Today it is trading down, though the stock had a brief period over $10/share around the time that Facebook announced it would be doing its own IPO later this year.  This impacts Zynga because Zynga itself primarily makes games, like Farmville, to be played on Facebook.)  Farmville and the other games out there used to be grouped under the category of massively multiplayer online games.  I think people stopped using this because the MMOG (or MMORPG for online role playing games) shorthand didn’t spell out anything cool.  And we all have the attention span of six seconds.  I just changed the channel.

What’s surprising is that an online game maker would have an IPO.  It used to be that game makers were local mom and pop shops with a few employees (some of whom were here in Hunt Valley, Maryland, like good old Microprose).  But game makers have become increasingly complex, in some ways like movie production houses.  Games themselves have also pushed the technology envelope.  New games were often an excuse for computer owners to buy a new computer (including yours truly) so that one would have sufficient RAM and a fast enough video card to play the new game du jour.  Given that, the overall online gaming market continues to grow, and the need to access larger amounts of capital to create new games (both in dollars and human capital), it seems likely that more game makers will become publicly traded businesses (or be acquired by existing, large companies like Sony or Disney).

Farmville itself, and its ken, employ several tactics to increase their profit.  First off, activities on Farmville take a certain amount of time to occur.  For example, certain crops on your farm take a variable amount of time to grow, ranging from a few hours (in real time) or a few days.  If you are in a hurry, you can convert real money into game currency, and speed up certain tasks.  In Farmville, it doesn’t appear that there is a way to convert Farmville currency back into real dollars (though this is the case in other systems, such as Second Life).  In addition, there is substantial advertising within the gaming system itself which generates a certain amount of value back to Zynga.  Farmville also has a social component, in that users can become neighboring farmers, and can share resources or tend to each other’s farms.  Farmville attempts to exploit the network effect of allowing users to belong to a virtual community of other game users.  By that I mean that the more users of the game, the more they interact, and the interactions create more users, causing a positive feedback loop that increases the value of the game to its users and Zynga.

There are a lot of online games these days.  Civilization has been working on a release within Facebook.  Ultima (an Electronic Arts game) has operated its own online system on various shards (servers) throughout the world.  Ultima has also recently been advertising a release of its system on Facebook.  EA, by the way, is also a publicly traded company.  Ultima itself has been available for a long time (I have fond memories of trying to complete Ultima III on an old PC).  Blizzard’s World of Warcraft, along with dozens of others, are out there.  For WoW users, lists in-game items available for purchase with real money.  In fact, there have arisen a number of game “sweat shops” where employees work on building up inventory for various online games to offer those virtual items for sale for real currency.  As an industry, it appears that these games are here to stay.

The interesting question is whether online computer gaming can be applied within the regular business world. seems to think so.

Klout and You

Klout is an online influence metric.  The site gathers information from your twitter, linkedin, facebook, google+, instagram, and other online social media web sites, and calculates a score of how your online postings influence others on the good, ole interweb.  This is an interesting metric because, if you are trying to have an impact on other users, you can experiment and see if your Klout score improves or declines.  Having a metric is helpful because the internet can be a very large echo chamber, with no outside way to measure if all the bouncing around off the rocks has any actual impact on your readership.

Try Klout out yourself and see what your current score is.  See how posting more content on various social media web sites impacts others that may follow what you are posting.  Where Klout looks for its scoring is also interesting – you might investigate whether you should join one or more of those web properties.  For example, I do have a google+ account, but rarely spend a lot of time with it.  There are a number of people that have added me to their circles and post content on google+, but I don’t spend too much time on it.  However, I thought I would check it out today.  The Dalai Lama posted a comment that we ought to use the time we have in a meaningful way.  Nice.  If you aren’t using social media to get out your message, maybe now is a good time to start doing something!

Our Conflicted Love Affair With Apple

America, and probably much of the world, loves Apple.  The company’s stock price recently has exceeded $600 per share and its market capitalization is around 1/2 of a trillion dollars.  We buy millions of iPhones and iPads, and i-This’s and i-That’s.  But there is another side to Apple and probably many of the brands that we buy in the U.S.: China.  Oh, how conflicted we are about our life’s love!

Mike Daisey has been making the rounds telling of woes he claims to have personally observed in the manufacturing center of China for Apple products.  The only problem is that Mike’s story involves a little dramatic license because he has a larger agenda which, by the way, is not journalism.  On the other hand, factories in China that make Apple products, such as Foxconn‘s, actually have blown up here and there, killing workers and causing injury to others.  Apple has hit back in recent months with assertions that it has created jobs in the U.S. directly and indirectly through supporting industries.  But there is a simple equation in all the noise: Apple makes its products outside of the U.S. because this makes commercial sense.  Part of its ability to trounce the tablet market is that Apple has negotiated larger volume, longer term, and lower-cost component parts contracts with particular suppliers because of its overall market volume.  And, of course, Apple is cool (or a cult, depending on who you ask).

As a result, Apple products remain priced so that we can buy them and Apple continues to make a healthy profit margin, in part fueling an increase in the share price of Apple from its 2002 price of under $60/share (though it probably helps that Apple is also planning to offer a dividend with all the billions in cash it has on hand, and that Apple is also planning some kind of share buy back).  Factory conditions in other countries are a problem, just as they have been in the United States.  Safety, wage and hour rules, and employee benefits do increase the cost to manufacture goods.  The question for us, though, is should we support subcontractors that avoid these costs so we can buy cheaper products at home?  Is such a business model sustainable?  What do you think?

Mac OS X Viruses: Rare but they happen

Thanks to the MacAttorney, Randy B. Singer.  Randy emailed to his mailing list about a recent virus making the rounds for Mac users.  This “Mac Flashback Trojan” has apparently infected some Mac computers.  Here is an article on how to check if your computer is infected, and how to go about resolving the issue.

For many Mac OS X users, you should have already received a Java update from Apple that will patch this problem.  If not, you can check for operating system updates by clicking on Apple icon in the upper left corner of your desktop and going to Software Update.  If a patch for Java is listed, be sure to install it promptly to protect your computer from viruses like these.

The “Hon” Controversy

If you are from Bawlmer, you probably say “hon.”  It is a local tradition.  The word is a part of our local vernacular.  However, Denise Whiting, owner of a restaurant named “Cafe Hon” registered the word “hon” as a trademark with the federal patent and trademark office.  The registrations online (which Whiting has subsequently abandoned after a public outcry) include these uses: (a) retail gift shops (see: Hon Trademark Reg) (IC 035), (b) paper goods, namely, bumper stickers, napkins, note cards, gift cards, greeting cards, stationery, wrapping paper, gift bags, note pads, note paper, calendars, pens (see: Hon Trademark Reg 2) (IC 016), and (c) restaurant services (see: Hon Trademark Reg 3) (IC 043).  Ms. Whiting’s use with her restaurant was not controversial, as Cafe Hon has been around for quite some time in Baltimore.  The public outcry was over her registrations for various goods with the “Hon” logo.

Trademarks, whether registered or not, are intended to identify the source of goods of a product or service.  Trademarks, in one way or another, have been in use by craftsmen and traders for thousands of years.  Trademarks serve an important purpose in commerce today, in that brand names distinguish a particular maker’s goods from competitors.  Businesses may invest millions of dollars over time in building up brand name recognition with the public.  Brands, with time, become associated with a particular product’s quality or attributes (the taste of Coke is strongly associated with its mark, and distinguishes it from Pepsi and other soft drink products).

In the “Hon” controversy, the public outrage was over Whiting’s claim of exclusivity for gift shop goods. Interestingly, even though the baseball team, the Orioles, evokes strong public response and is strongly identified with Baltimore, there is not much controversy over their trademarks or their exclusive right to use those marks on t-shirts and baseball hats (and a whole lot of other merchandise based on their trademark registration: O’s Trademark Reg).  I suppose the public doesn’t claim to own the “O’s” (that’s Peter Angelos, hon), but is there that much of a difference?  I haven’t seen any bumper stickers inviting the Orioles to sue to challenge the “O’s” trademark registration.

Property rights, whether the right is to a physical thing or an intangible, are limited by certain public interests.  For a piece of real property, you have to pay your property taxes or risk the loss of title to your property.  The public may also have certain limited rights to enter your property (like the sidewalk that runs through the front yards of many homes in Maryland).  And the air roughly 100 feet above your home is not yours, either.  The exclusive rights in intellectual property are also limited by certain public interests.  For example, there is the concept of the “public domain” in copyright law.  Original works of authorship can be dedicated to the public domain, or end up there after a certain period of time from when the work was originally created (a work today doesn’t end up in the public domain for quite some time, but older works created before the 1920’s are generally in the public domain).

The Lanham Act provides the statutory basis for trademark registrations in the U.S.  Section 1052 identifies certain exceptions to the right to register a particular mark.  Unlike the U.S. Copyright Act, which provides for a “public domain” of works that otherwise would be entitled to protection, the Lanham Act has a much more limited set of circumstances that would prevent registration of a mark.  For example, immoral or deceptive marks can’t be registered.  The coat or flag of a state can’t be registered as a mark.  A living person’s name, portrait or signature can’t be registered without that person’s consent.  The mark cannot be confusingly similar to another registered mark.  The mark cannot be merely descriptive of the product (e.g., “Table” brand tables won’t work).  But, words in the public vernacular are not necessarily protected by these exceptions.  As subsection (f) notes, a mark that has become distinctive over time as to that person’s goods can be registered.

Irregardless of the Lanham Act, Whiting abandoned her marks after local outcry about “Hon.”  There was a strong sense among some in the public that “you just can’t do that” with the word “Hon.”  Some invited Whiting to sue them so that they could challenge her marks in court.  The Baltimore Sun ran a number of articles on the controversy.  Public opinion was against the registration of the word “Hon.”  Ultimately, Whiting abandoned or “Hon” marks in response to it all.  Tempest in a teapot?  Maybe.  But don’t mess with our “Hons.”

101 Shortcuts You Wish You Knew

Ok, the title to this blog post is a wee bit ambitious.  But here are a number of shortcuts that may well be so old (in the world of computers) that they represent the grandparents of all that stuff kids do these days tweeting, texting, and generally misspelling:

Control – C, Control – X, and Control – V: Copy, Cut, and Paste

It takes way too long to highlight text, go up to wherever it is in the menu (and in the new version of MS Word – 2011 for Mac – Microsoft, in its infinite wisdom, has moved absolutely every thing that used to be somewhere obvious to somewhere less-than-obvious), and then Copy, Cut or Paste text.  So that is why back in 1982, some guy assigned these basic but essential functions to keyboard combinations.  For Windows, you use the Control key.  For OS X users, you generally use the Command key.

Control – B, Control – I, and Control – U: Bold, Italicize, and Underline, Baby!

I feel exactly the same way when you ask me to make some header bold, or underline a table heading.  I do not, I repeat, I do not want to spend time with your cutesy point-and-click menu to figure out how to format my font.  That’s what Control – B, I, and U are all about!  Do not leave home without them!

Control – Z: Undo.

Ever do something stupid and then want to undo it?  Like in life when you are talking to someone you really like and something incredibly stupid comes out of your mouth and the person you are talking to stops and looks at you like you should be institutionalized?  Control – Z.  Control – Z undoes all sorts of really dumb things that we accidentally, or intentionally, do when we are busy, not quite awake, bored, or freaking out.  Control – Z.  If only you could do that with the rest of your life.  I would have Control – Z’ed at least a half a dozen things that happened today if I could.

Control – Y: Redo.

Control – Y is Control – Z’s misunderstood cousin.  But there are days when I really do want to redo something.  Most commonly, I use this to apply styles in Word documents to various sections of text that need some reformatting.  I totally could Control – Y all day some stuff that comes across my desk.  Well, not all day.  And not everything.  There are, actually, a lot more things I would prefer to Control – Z than Control – Y, but I don’t want Control – Y to get an inferiority complex.  And you should use it.

Control – A: Select It All

Now, I share this one with you with some hesitation, because sometimes when you use Control – A, you then promptly do something you wish you didn’t do.  However, Control – Z, your new BFF, is already above this entry.  So, you should be ok with Control – A.  This function selects everything in the active window of the computer program you are using.  Just keep in mind that everything is selected.  Ah, the force is strong with you.

Here is a link to an article with a few other gems.  Now, if you are really good, I will tell you how to make Indexes, Tables of Contents, and how to Mark Citations (for all of you Appellate writing nerds out there that have to build tables of Cases, Statutes, Rules and so on).  Which, by the by, has a lot to do with properly using Styles in your Microsoft Word documents.

Meaningful Use Overview for Maryland MGMA

On March 13, 2012, I presented to the membership of the Maryland MGMA on the topic of “Meaningful Use,” in light of the recent publication of the Stage 2 interim regulations by CMS.  Below, please find a link to the presentation file.

Meaningful Use Overview

Members had questions related to meaningful use, which I will make an effort to respond to under separate cover.