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.

Baltimore Bead Society – Intellectual Property Presentation

On March 13, 2012, I presented a primer on intellectual property to the membership of the Baltimore Bead Society.  Below you will find the presentation file embedded as a quick time movie.

IP Overview (for online) medium

The membership had a number of questions about intellectual property issues, particularly the controversial “Hon” trademark dispute.  Look for additional postings later on some of those questions and issues.

Comparing Meaningful Use Stage 1 and Stage 2

The following two tables compare the Stage 1 and Stage 2 meaningful use criteria under the Meaningful Use proposed/interim regulations that were issued last month.  These tables illustrate some of the changes to the existing criteria, and also the changes in the metrics for the measures (generally increasing the compliance rate required to continue to qualify for the incentive payments).

Table 1 – Core Criteria Under Stage 1 and Stage 2 Meaningful Use Comparison

Eligible Providers must meet all of the Core Criteria to Qualify for the Incentives.  Stage 1 had 15; Stage 2 has 17.  Stage 1 meaningful use Core Criteria are found in section 495.6(d) for eligible providers.  Stage 2 meaningful use Core Criteria are found in section 495.6(j) for eligible providers.

Core Criteria for EPSubsections (d), (j) Stage 1 Metric Stage 2 Metric
§ 495.6(j)(1) – provider use of CPOE for medication, lab, and radiology orders [§ 495.6(d)(1)] 30% of orders 60% of orders
§ 495.6(d)(2) – drug-drug and drug-allergy checking Enabled during period N/A
§ 495.6(d)(3) – maintain up to date problem list 80% of patients N/A
§ 495.6(j)(2) electronic prescriptions [§ 495.6(d)(4)] 40% of Rx 65% of Rx
§ 495.6(d)(5) – active medication list 80% of patients N/A
§ 495.6(d)(6) – active allergy list 80% of patients N/A
§ 495.6 (j)(3) demographics [§ 495.6(d)(7)]50% of patients with encounters 80% of patients with encounters
§ 495.6 (j)(4) vital signs [§ 495.6(d)(8)]50% of patients with encounters 80% of patients with encounters
§ 495.6 (j)(5) smoking status [§ 495.6(d)(9)]50% of patients with encounters 80% of patients with encounters
§ 495.6(d)(10) – reporting clinical measures to CMS or State Successful testing N/A
§ 495.6 (j)(6) decision support [§ 495.6(d)(11)] Implement 1 decision support intervention Implement 5 decision support interventions
§ 495.6 (j)(7) lab results as structured data [§ 495.6(e)(2)] Was Menu in Stage 1; 40% of all lab results 55% of all lab results
§ 495.6 (j)(8) patient lists by specific condition for QI [§ 495.6(e)(3)] Was Menu in Stage 1; at least 1 list At least 1 list
§ 495.6 (j)(9) patient reminders [§ 495.6(e)(4)] Was Menu in Stage 1; 20% of patients sent during period 10% of patients seen in last 2 years receive a reminder
§ 495.6 (j)(10) patient electronic access of health information [§ 495.6(e)(5)] Was Menu in Stage 1; 10% of patients receive timely access 50% of patients receive timely access
§ 495.6 (j)(11) clinical summaries at patient visit [§ 495.6(d)(13)] 50% receive summary from office visit 50% receive summary from office visit
§ 495.6 (j)(12) patient education resources [§ 495.6(e)(6)] Was Menu in Stage 1; 10% of patients receive ed. resources 10% of all office visits
§ 495.6 (j)(13) medication reconciliation for transition of care [§ 495.6(e)(7)] Was Menu in Stage 1; 50% of transitions have recon 65% of transitions of care have medication recon
§ 495.6 (j)(14) patients transitioned to another provider’s care have care summary prepared by provider [§ 495.6(e)(8)] Was Menu in Stage 1; 50% of transitions have recon 65% of transitions of care have patient summary
§ 495.6 (j)(15) capability to submit electronic data to immunization registry [§ 495.6(e)(9)] Was Menu in Stage 1; perform 1 test to registry Ongoing submission of data to registry during CY
§ 495.6 (j)(16) security risk assessments under HIPAA security regulations [§ 495.6(d)(15)] Conduct security assessment Conduct security assessment
§ 495.6 (j)(17) use electronic messaging to communicate with patients N/A 10% of patients seen during period received secure message from provider
[§ 495.6(d)(14)] – capability to exchange key clinical information among care providers and patients One test of exchange N/A
[§ 495.6(d)(12)] 50% of patients receive timely access 50% in 3 days on patient request N/A


Table 2 – Menu Criteria Under Stage 1 and Stage 2 Meaningful Use Comparison

In Stage 1, EP had to meet 5 out of 10 Menu Criteria to qualify.  In Stage 2, EP must meet 3 out of the 5 Menu Criteria to qualify.  Stage 1 meaningful use Menu Criteria are found in section 495.6(e) for eligible providers.  Stage 2 meaningful use Menu Criteria are found in section 495.6(k) for eligible providers.

Menu Criteria for EPSubjections (e), (k) Stage 1 Metric Stage 2 Metric
§ 495.6(k)(1) – access to imaging results in EHR N/A 40% of imaging results in HER
§ 495.6(k) (2) patient family health history in structured data N/A 20% of all patients seen
§ 495.6(k) (3) capability to submit syndromic surveillance data to public health agency [§ 495.6(e)(10)] Was Menu in Stage 1; perform 1 test to registry Successful ongoing submission of data for period
§ 495.6(k) (4) capability to identify and report cancer cases to State cancer registry N/A Successful ongoing submission of data for period
§ 495.6(k) (5) capability to report other specialized registry (other than cancer) to specialized registry N/A Successful ongoing submission of data for period
[§ 495.6(e)(1)] – implement drug formulary checking Enable functionality N/A
[§ 495.6(e)(2)] – lab results as structured data 40% of lab results are structured data Moved to Core
[§ 495.6(e)(3)] – generate lists by specific conditions 1 reporting list Moved to Core
[§ 495.6(e)(4)] – send reminders to patients for follow-up care 20% of patients Moved to Core
[§ 495.6(e)(5)] – Provide patients with timely access to health information 10% of patients have electronic access Moved to Core
[§ 495.6(e)(6)] – Use EHR for patient education 10% of patients Moved to Core
[§ 495.6(e)(7)] – Incoming transition of care to EP medication reconciliation 50% of patients have medication recon Moved to Core
[§ 495.6(e)(8)] – Outgoing transition of care from EP care record summary 50% of patients have care summary Moved to Core
[§ 495.6(e)(9)] – immunization registry 1 certified test Moved to Core

Maryland EHR Incentives

I’m willing to bet you didn’t know about Maryland’s best kept EHR incentives secret: namely, six private insurers will pay up to $15,000 each to each Maryland practice that implements an EHR before 2014.  Here are some details about the program and where you can find further information about it.

There are six insurers that participate in this incentives program: Aetna, CareFirst, Cigna, Coventry, Kaiser Permanente, and United Healthcare.  Each insurer will pay up to $15,000 in two parts to participating providers.  Half the incentive is calculated based on the total number of Maryland patients either assigned to the practice as a PCP, or at $8 per member for each Maryland insured seen by the practice in the last 24 months.  So, if in two years, you treat 938 members of one of the six insurers, you can maximize the first part of the incentive payment.  The other half of the incentive is based on your ability to meet one of the following three criteria: (a) sign up with a state MSO, (b) demonstrate advanced use of your EHR, or (c) participate in a quality improvement initiative with the insurer.

To obtain the incentive payments, you first file an Incentive Application with the appropriate private insurer prior to December 21, 2014.  The insurer will then acknowledge your application.  Then, six months after the application, you submit a Payment Application to the insurer, who will adjudicate the claim in 60 days and make your incentive payment.  These incentives are per practice (rather than by individual physician or provider), however, these are in addition to any federal incentive payments your practice may qualify to receive from CMS under the Medicare or Medicaid programs through the HiTech Meaningful Use incentives.

You can read more about this on the MHCC web site here.

iPhone Call Log For Follow-up

An increasing number of attorneys, including me, use an iPhone in their practice.  As a practicing attorney, I’ve been looking for some kind of application that could permit me to track and follow-up on phone calls made or received.  Without such an application, it is a manual effort to review calls made and either document or otherwise follow-up on the issue that generated the phone call.  In my research, I had found an application that performed the “simple” task of taking calls from the call log of the iPhone and importing them into a designated calendar in iCal on my Macbook.  However, at one of the last major releases of the iOS, this application stopped working (probably because the call log database on the phone was upgraded to a later version of SQL Lite).

So, I endeavored to cook up a way to accomplish a simple-enough process to get at the call log on my iPhone and import the data to a web application.  Here is basically how this works:

  1. Backup your iPhone to your laptop using iTunes.  This creates a set of backup files that are stored locally.
  2. Using the free iPhone Backup Extractor, extract the iOS backup files to a particular location on your laptop’s hard drive.  Within this directory, /IOS Files/Library/Callhistory, is a SQL Lite version 3 database called call_history.db.  This database is presently not encrypted (unlike, apparently your SMS history).
  3. Using the application I wrote, import your call_log history into a pre-installed MySQL database.  In addition, my import process will also import my address book entries (used to match up calls with people that are known to me) from my Mac Address Book database (another SQL Lite version 3 database that is stored on your laptop).

Once this process is complete, I have a recent list (the most recent 100 calls, including missed calls) of people that I have talked to or missed.  This data is presented in a php-based web application.  The status of each entry can be changed to reflect whether I need to do something, or whether the issue is closed or otherwise resolved.  I also have links to a reverse phone lookup site to check numbers that I don’t recognize in my call log.  Resolved calls drop off of the list so only calls that require follow-up or have just been imported appear on the home page.

Because the phone call log only keeps the last 100 calls, I worked on importing call data from my AT&T phone bill into the database based on the .csv file export that AT&T provides.  I was able to import the last 12 months of calls into my application (though the process is a manual one to process the invoice data points so that they can be imported).

I’ve written some rudimentary reporting to track time and number of calls per month.  I plan to work on some additional features as time permits.  Do you think this would be helpful to your practice?  Let me know in the comments.  Thanks.

Meaningful Use Stage 2 Regulations Released

The Meaningful Use Stage 2 proposed rule has been released earlier this week.  You can download a copy of the full 455 page regulation here: MU Stage 2 Proposed Rule.  For those keeping score at home, there are three stages of “meaningful use” as that term is defined in section 495.6 of the regulations.  Stage 1 set certain Core (required) and Menu (pick from the list to implement) Criteria, and established minimum compliance metrics for a “eligible professional” to qualify for the federal incentives.  The original regulations that defined “meaningful use” indicated that there would be future changes to the definition in two more stages.  We initially expected Stage 2 to be defined for compliance in 2013.  However, the regulations have pushed out compliance for Stage 2 to 2014.  This article will take a look at what’s been proposed for Stage 2.

First off, there are more “Core” or required Criteria in Stage 2.  Stage 1 had a total of 15 Core Criteria, some of which any certified electronic health record would have to meet (such as collecting certain demographic and vital signs data for patients seen in the office).  In addition, there were several Core criteria that, when originally published, no one had yet defined how you might actually comply.  For example, there is a Core Criteria in Stage 1 where providers were required to submit certain quality data to either CMS or their State Medicaid program.  But, no one had indicated when the regulations were published what data, exactly, or how this data was to be provided.  The metric in Stage 1 was merely the ability to submit a test file.

Stage 2 has 17 total Core Criteria.  In several cases, CMS has proposed to terminate a prior Stage 1 Core item entirely in Stage 2.  And in a number of cases, Criteria that were previously on the “Menu” in Stage 1 are now incorporated as Stage 2 Core Criteria.  For example, structured lab data, patient lists by specific condition for use in a quality improvement initiative, patient reminders, patient access to electronic health information, patient education resources, medication reconciliation for transition of care, care summary for patients transitioned to another provider, and data submission to an immunization registry were all Menu Criteria in Stage 1 and are now Core Criteria in Stage 2.

Also, where a Stage 1 Criteria was kept, the minimum compliance percentage has increased, in some cases substantially, in Stage 2.  For example, where a 50% compliance rate was sufficient for Stage 1 for collecting patient smoking status, in Stage 2, the compliance rate minimum is 80%.  In Stage 1, a single decision support rule needed to be implemented for compliance.  In Stage 2, five such rules must be implemented.

As for the Menu Criteria, Stage 1 required that you implement 5 of the 10 on the list as an eligible provider.  In total, therefore, a provider had a total of 20 Criteria that had to be met to achieve meaningful use.  In Stage 2, there are only 5 menu criteria, and the provider must meet at least three.  So the total number of required criteria is no different, but providers have fewer menu criteria to choose to comply with.  In addition, the Menu Criteria in Stage 2 include three interfaces with specific state or public health registries, and the remaining two involve access to imaging results in the EHR and storing family health history in a structured data format.  You may be able to waive out of some of these if there isn’t a way in your state to submit surveillance or other registry data electronically.  However, if you elect to implement one of these interfaces, the compliance requirement under Stage 2 is full year data submission to the registry (not just submitting a test file).  If you plan on doing one of these, start early to make sure you can get to the compliance target by 2014.

Overall, Stage 2 appears to “up the game” for providers who wish to continue to receive incentive payments in out years of the program.  The Stage 2 rules that were published this week are interim rules.  The public has 60 days to submit comments.  After that, CMS will ultimately publish a final rule, taking into account comments made during the comment period.  While it is possible that CMS may back down on some of these measures, providers should get plan to comply with much of this Rule.  Talk with your EHR vendor, consultant, MSO or other service providers to analyze and plan for compliance.