Technology – Faith At Law LLC

Virtual Practice of Law

I recently wrote an article for the Maryland Bar Journal (Nov/Dec 2014 edition) entitled Virtuality: The Lawyer that is Almost Really There, and I recently made a presentation on the same topic to the SL Bar Association. Please find a link here to the recording of the presentation.

Fundamentally, technology has significantly impacted the practice of law. Part of that impact has been felt in the greater access to information that previously was only available in proprietary database systems. Part of that impact has also been felt in more cost effective methods to acquire new clients and provide more access to the legal system through fixed cost or unbundled legal services that may be provided electronically. However, not all aspects of these changes have been welcomed by the legal marketplace with open arms. For one, our ethics rules have not embraced the changes driven by technology to the delivery of legal services, leaving the practicing lawyer with uncertainty about the ethics status of newer technologies available to support the practice of law. In addition, there are substantial questions about the security and integrity of some of the technology available to lawyers to support virtual practices. There is one constant: change, and one consistent struggle for all of us: trying to keep up with it.

Estate Planning in the 21st Century

So, what happens to all your digital stuff when you die, anyway? Of course, if you are dead, chances are you won’t much care. But your loved ones might.

As an exercise, think for a moment about all of the digital stuff you use during the typical day. If you are like many, you may have:

a smartphone, a tablet computer and perhaps a laptop
a bunch of online accounts to websites like Facebook, LinkedIn, Flickr and other places
your own domain and web site, and an email account or three
many people with bank accounts or other financial accounts have online access to view and manage their money
auction or retail site account access on places like ebay or etsy
an account on an entertainment site like iTunes
a remote data account if you use the cloud to backup your important data remotely
one or more accounts for a virtual world like Second Life
and there are probably a whole lot of other accounts and passwords you have

Now, holding those accounts in your head, answer these questions:

Who might be able to access all of those accounts if you were to die?
Does anyone you care about know your password to your computer?
Do you have a list somewhere of accounts that you maintain online?
Are there online accounts you would prefer be kept private, or things you have written you would prefer not become public knowledge, like an online private diary?
If no one has your password, what might your family do if they needed to gain access to those accounts after you die?

These are the kinds of dilemmas we face in the 21^st century as technology expands into more as

pects of our lives. The law has also not exactly caught up with the technology issues for estate planning. There are a patchwork of federal and state laws that tend to restrict the ab

ility of a personal representative or family member from having access to online content of a deceased loved one. For example, the Computer Fraud and Abuse Act (CFAA), which became law in 1986, was intended to prevent the unauthorized use by a person of a “protected computer.” 18 U.S.C. § 1030. Court decisions over time have interpreted the CFAA to subject unauthorized users to civil and criminal sanctions for various forms of unauthorized access to computers or online accounts. The Stored Communications Act (SCA), another federal law, provides a private cause of action for the unauthorized and intentional access of another’s online communications. 18 U.S.C. § 2701. Because these laws have been around before the age of Google and Facebook, many online service providers have established, within their terms of service, limitations on the access by others of a user’s account. There is some concern in the legal community that a person who violates such an online agreement to gain access to a user’s website could be prosecuted under CFAA or SCA.

In addition, some online services may not give you more than a personal license to access an item, such as music. Bruce Willis, of hard-talking and explosion-surviving Die Hard fame, got into an argument with Apple about whether Willis could leave his extensive iTunes collection to his children. B. Griggs, Can Bruce Willis Leave his iTunes Music to his Kids?, http://www.cnn.com/2012/09/03/tech/web/bruce-willis-itunes/ (accessed Aug. 4, 2014). The iTunes license agreement contains a provision that prohibits you from sharing your account information with anyone else. The agreement also limits access to content on iTunes for “only for personal, noncommercial use.” Apple, Inc., iTunes Store Terms and Conditions, http://www.apple.com/legal/internet-services/itunes/us/terms.html (accessed Aug. 4, 2014). If you think about that restriction, after you die, your estate would be unable to transfer your account to an heir to access your iTunes music or movies.

Mark Twain, who lived in a very different technology age, planned that his autobiography would not be published for a 100 years, to reduce the chances that his writing would trigger a libel lawsuit from a living contemporary, or heap an unwanted burden on his surviving family. G. Adams, After Keeping Us Waiting for a Century, Mark Twain Will Finally Reveal All, http://www.independent.co.uk/arts-entertainment/books/news/after-keeping-us-waiting-for-a-century-mark-twain-will-finally-reveal-all-1980695.html (accessed Aug. 4, 2014).

You may very well have digital items you would prefer that your heirs not be able to access. That might have been Alison Atkins’ intention when she died prematurely at 16, having finally succumbed to a colon disease. Though upbeat publicly about her health and condition, she also kept a private blog secured by a separate password where she contemplated suicide and other “dark” thoughts. G. Fowler, Life and Death Online: Who Controls a Digital Legacy?, Wall Street Journal, Jan. 5, 2013, http://online.wsj.com/news/articles/SB10001424127887324677204578188220364231346.

Without an expression of your intent, your family may have no choice but to break into your computer and gain access to all of your online and social media accounts, risking a violation of federal or state privacy law, and also gaining access to information you might wish to protect them from. Give us a call or get in touch with us if you want to talk more about your digital estate planning.

Aereo Loses the War Before the Supreme Court

The question presented to the court was whether Aereo’s conduct, in recording and re-broadcasting over-the-air television broadcasts to individual subscribers to Aereo’s services, constituted copyright infringement. Aereo’s service is a web-based system that permits subscribers to watch broadcast television through a web broadcast. Subscribers are able to access available television programming by selecting a specific live broadcast from a menu on Aereo’s website. The system will then direct an Aereo-controlled antenna to tune in to the program and transcode the broadcast for access by the requesting subscriber. In the process, the Aereo system makes a digital copy of the over-the-air broadcast to permit streaming of the content to the subscriber. The digital copy is only made available to the individual subscriber that requested the particular broadcast. Am. Broadcasting Cos. v. Aereo, Inc., 573 U.S. ___ (2014).

The plaintiffs in this case are the broadcasters that transmit over-the-air television programming, along with the producers, marketers, and distributors of this content. They sought a court’s order to enjoin the conduct of Aereo on the grounds that Aereo’s services infringe on the public performance right provided under section 106 of the Copyright Act. Section 101 defines “public performance” to mean:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

17 U.S.C. § 101.

Case law over time has helped to clarify when a performance is to the “public.” In Columbia Pictures v. Redd Horne, 749 F.2d 154 (3^rd Cir. 1984), the defendant operated a video rental and sales business. In addition, patrons of the store could rent one of eighty five private viewing booths, permitting up to four people to view a video in the store in the booth. The plaintiff had alleged that the private viewing booths constituted an unauthorized public performance, in spite of the defendant’s attempt to limit the number of people who could view a tape in the store. The third circuit agreed, finding that the video store was open to the public and that it was the defendant, not the patrons, that performed the copyrighted works in the private viewing booths.

However, as technology has evolved, a separate line of cases has developed in an attempt to shield technological improvements from claims of copyright infringement. Starting with Sony in 1984, the Supreme Court held that the VCR could be sold, even though the people purchasing the technology might use it to record copies of copyrighted materials on television, without permission or a license from the copyright holders. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).[1] In more recent years the federal courts have sided with the music industry and found infringement with certain file sharing and peer-to-peer sharing technologies, such as Napster, Grokster and Limewire, concluding that these technologies resulted in massive and wholesale infringement.[2]

The Aereo service itself is like a cloud-based VCR, in that the service permits users to request that a particular over-the-air broadcast be recorded and transmitted via the internet to the individual requesting the recording. Aereo also went to great pains to distinguish its service from peer-to-peer sharing services by emphasizing that a user selects a broadcast he wishes to watch via the internet, and Aereo only records and directs that recording to the individual requestor, not making the copy available to any other Aereo user – even one that requests the same broadcast through the service. Unfortunately, Aereo could not prevail on these points before the Court. Instead, the Court found that Aereo’s service was functionally similar to community antenna television systems (“CATV”), and that Congress had specifically amended the Copyright Act to define CATV systems as copyright infringing, overturning legislatively two Supreme Court decisions holding otherwise: Fortnightly Corp.[3] and Teleprompter Corp.[4]

In each of those cases, the defendants operated a system where the defendant would collect over-the-air broadcasts from a region and transmit those broadcasts to subscribers in another broadcast market without the payment of a royalty and without a license from the copyright holders. The Court held that these activities were outside of the scope of the Copyright Act as it stood prior to the 1976 amendments, because the CATV systems were acting more like “viewers” rather than “broadcasters” of the copyrighted content of others. This was so, according to the Court, because the CATV system “‘no more than enhances the viewer’s capacity to receive the broadcaster’s signals [by] provid[ing] a well-located antenna with an efficient connection to the viewer’s television set.’” Aereo, Inc., slip. op. at 6 (quoting from Fortnightly Corp., 392 U.S. at 399). However, Congress disagreed with the conclusion of the Court and ultimately amended the Copyright Act to reach the conduct of CATV system providers, establishing a compulsory royalty regimen under section 111 of the Act.

Ultimately the Court held that Aereo was providing a service similar to the CATV systems, and, in spite of some differences that the dissent argued were significant, held that if the CATV systems were infringing, so to must the Aereo system. However, the Court did not declare that Aereo is, in fact, a cable system, which would permit Aereo to take advantage of the compulsory licensing system established by Congress. In a filing July 9, Aereo has apparently now taken the position that it is a cable system and is seeking a license to operate as such.[5] Time will tell whether Aereo will be able to operate in this manner or whether Aereo will be unable to become a “legitimate” content distributor, like some other technology innovations that had originally been declared infringing.

[1] Admittedly, the Sony case was about unauthorized copying, rather than public performance of, copyright works, and Sony was in the suit defending against a contributory or vicarious infringement claim, where Aereo was accused of direct infringement by publicly performing copyrighted works without a license.

[2] See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9^th Cir. 2001); Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481 (S.D.N.Y. 2010); but see Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2^nd Cir. 2008) (cert. denied 557 U.S. 946 (2009)).

[3] Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).

[4] Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974).

[5] http://mashable.com/2014/07/09/aereo-cable-company/

Google Books Ends in Fair Use Verdict for Google

The case brought by the Author’s Guild against Google, for scanning of millions of books without any author’s permission, ended without a trial when Judge Chin granted a motion for summary judgment in favor of Google at the end of 2013. In his thirty page opinion, Judge Chin agreed that Google’s conduct is affirmatively protected by section 107 of the Copyright Act, which sets out the factors that courts consider when determining if a use of another’s copyrighted work is “fair,” meaning the defendant is not required to obtain a license or pay a royalty for the use.

This controversy started almost ten years earlier when Google began its “Library Project” to scan and index books from a variety of library collections, including Harvard, the University of Michigan, the New York Public Library, Oxford and Stanford.[1] Millions of books were to be scanned and indexed using Google’s engineering expertise and search engine, including some books that remain under copyright protection. Google also established a “Partner Program” under which Google worked with publishers and rights holders to index and display books with permission from the owner of the rights in the work.[2] By Judge Chin’s decision last year, more than twenty million books had been scanned and indexed into the Google Books project.[3]

Google’s database of books includes a full digital copy of each book it scans. Each such book is indexed for searching. Users can navigate to books.google.com and search through the index using queries of their own design. In response, the search engine will return a list of books from the index that are relevant to the query. Clicking on a particular book will take the user to a page which displays the cover of the book and a short summary of the content. If the book was scanned through the Partner Program, the user is able to view what the author or publisher has consented to display on the results page. If the book is in the public domain, the user is able to view the entire book and also to download the electronic version of the book. However, for books still under copyright protection but not available from the Partner Program, the search result displays the book in “snippet view.”[4] “Snippet view” is the source of controversy for the plaintiffs in the Author’s Guild because Google did not obtain permission to show portions of the indexed book in search results.[5]

Copyright infringement is the invasion of an exclusive right of an original work by another. Among the exclusive rights of authors are the rights to reproduce, distribute, and publicly display their works.[6] Fair use is an affirmative defense to a claim of copyright infringement. Under section 107, courts consider four factors when determining if a defendant’s infringing use is “fair:” (a) the purpose and character of the defendant’s use, (b) the nature of the plaintiff’s work, (c) the amount and substantiality of the work used by the defendant, and (d) the impact of the use on the plaintiff’s market for his work.[7] Determining whether fair use applies depends on the facts and circumstances of each case.[8] Judge Chin emphasizes in his opinion that “transformative” uses of copyrighted material are more likely to be a fair use. Citing Campbell v. Acuff-Rose,[9] the court defines “transformative” uses of a work as the creation of a new work from an old one, where the new work has a different purpose or character and the fair user alters the original expression resulting in a new work with a new meaning or message.

Fair use has been heavily litigated because the defense turns on the specific facts of each case. In addition, while the Google Books case is an important one, it is not the first case to raise the issue of fair use in the context of technology on the internet. More than ten years ago, the Ninth Circuit confronted a search engine that was sued for copyright infringement by a photographer, Leslie Kelly, whose photographs had ended up indexed into Arriba Soft Corp.’s internet image search engine.[10] In that case, Kelly created, sold and licensed landscape photographs of the American West, which he made available for sale through his website. The defendant, Arriba Soft, had crawled and indexed images available from public internet web sites, including Kelly’s web site. The Ninth Circuit held that Arriba Soft’s use of Kelly’s photographs was transformative. Kelly’s purpose in creating his photographs was aesthetic: people would purchase Kelly’s works to have a framed photograph of a landscape in their home. In contrast, Arriba Soft used Kelly’s photographs to create thumbnails which were placed into a search database so that search users could use keywords to find related images.[11] The thumbnails could not supplant the original aesthetic use of the works because the thumbnails were at a considerably lower resolution. Ultimately, Arriba Soft prevailed on the basis that its use of Kelly’s works was a fair use.[12] Amazon obtained a similar outcome in the case Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146 (9^th Cir. 2007).

In the Google Books case, the court also found that Google’s use of the plaintiff’s works was transformative: “Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and libraries and cite-checkers as it helps to identify and find books.”[13] The court continued: “Similarly, Google Books is also transformative in the sense it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.”[14]

The court held that the second factor – the nature of the plaintiff’s works – also favored a finding of fair use, because most of the books indexed by Google, 93%, were non-fiction, and all of the books had been published before Google indexed them. A court is less likely to find fair use when the defendant has used highly creative works, or works that are not yet published. The court held that on balance, the third factor – the amount and substantiality of the use of the plaintiff’s works by Google – weighed slightly against a finding of fair use because Google had used all of the works verbatim, though that was required for the purpose of Google’s use.[15]

Finally, the court held that the last factor – the impact on the plaintiff’s market for its works – also strongly supported a finding of fair use. In this case, the court found that the plaintiff’s market for its original works would be very unlikely to be supplanted by the “snippet” view that was available through Google’s website in response to user searches for keywords. To the contrary, the court found that Google’s database would most likely enhance the sales of the plaintiff’s works.[16]

As a result, the court found that Google’s use of the plaintiff’s works was a fair use and entered judgment for Google. The Author’s Guild filed notice of its intention to appeal, and subsequently filed an appeals brief with the Second Circuit in April. Google’s reply is due in July. Stay tuned for further developments!

[1] http://books.google.com/intl/en/googlebooks/about/history.html

[2] The Author’s Guild, Inc. v. Google, Inc., 1:05-cv-08136-DC 5 (S.D.N.Y. Nov. 14, 2013) (appeal pending in 2d circuit in case number 13-4829 CV).

[3] Id. at 1.

[4] https://support.google.com/books/answer/43729?topic=9259&hl=en

[5] A careful reader will note that Google also has a complete digital copy of each book it scans, which Google backs up to backup media and shares with the source library that provided the work to be scanned. Plaintiffs alleged that these acts violate the authors’ exclusive rights of reproduction and distribution.

[6] 17 U.S.C. § 106.

[7] Id. at § 107.

[8] The Author’s Guild, Inc. at 16-17.

[9] 510 U.S. 569 (1994).

[10] Kelly v. Arriba Soft Corp., 336 F.3d 811 (9^th Cir. 2003).

[11] Id. at 818.

[12] Id. at 822.

[13] The Author’s Guild, Inc. at 19.

[14] Id. at 20.

[15] Id. at 22-23.

[16] Id. at 25.

Data Breach Over Time

The following chart is a summary of data breach information available on privacyrights.org of approximately 3,700 data breaches that have become publicly known, affecting in excess of 600,000,000 records of personal information, such as credit card numbers, social security numbers, and other sensitive information.

This chart illustrates the number of private records lost by year, starting in 2005. The two most common ways that data is lost are either as a result of a portable device (PORT) that is lost or stolen (the orange bar), or direct hacking/malware (HACK) (the green bar). The reader will note that there was a spike in lost records in 2009. A major contributing factor to this loss was a single hacking incident involving Heartland Payment Systems involving in excess of 130,000,000 records, combined with a loss by the Veterans Administration of 76,000,000 records that same year.

In terms of the major business industry categories, the industry sector with the largest data losses over time (2005-2013) is the financial and insurance industry (BSF), followed by retail (BSR) and government (GOV) (the latter being most impacted by losses at the Veterans Administration among government agencies).

Implementing Stages of Meaningful Use

With the release of the final Stage 2 Meaningful Use regulations, CMS issued a CMS Press Release on Stage 2 that, among other things, attempted to clarify when practices that implement an EHR will need to comply with which stage of the regulations. In the beginning of the incentive program, there was some concern that practices that delayed EHR adoption might have to jump right to a later stage of meaningful use to obtain any incentive money. The following chart describes the current phased-in approach based on when a practice first adopts an EHR as compared to when that practice has to demonstrate which stage of meaningful use.

As you can see, for practices that decide to adopt an EHR in 2013, the individual eligible providers will be able to demonstrate compliance with the Stage 1 criteria in both 2013 and 2014, delaying the Stage 2 criteria to 2015. Readers should note that Medicare eligible providers that delay implementing an EHR until 2015 will not be eligible for any incentive dollars; instead they will just be staving off the proposed Medicare reimbursement cuts of 1% per year (up to 5%) by adopting EHR. See § 495.211. For those Medicaid eligible providers, the last year one might adopt an EHR is 2017 to be able to receive any incentive payments (though such a provider would not have to meet the Stage 2 criterion until 2019). See § 495.310.

Comparing Meaningful Use Stage 1 and Stage 2 Criteria

In an earlier post, I had analyzed side by side the final Stage 1 criteria for achieving meaningful use to the interim Stage 2 criteria that will be phased in starting in 2014. Following that analysis, HHS released the final Stage 2 criteria. As a result, the comparison has changed a bit from my post earlier this year. The following two tables analyze the final Stage 1 Core and Menu Criteria in comparison to the same for the final Stage 2 criteria.

A few highlights on what changed between the interim and final Stage 2 criteria. First, a few of the final Stage 2 criteria ended up reducing the compliance metrics from what was proposed in the initial Stage 2 criteria. See 495.6(j)(1), (j)(9) and (j)(11).

However, a few of the Stage 2 criteria metrics were changed to include additional requirements for compliance which might present a curve ball for those of you planning on obtaining compliance with these. For example, in the final Stage 2 regulation, the criterion on patient access to health information has an added metric that 5% of patients actually download information available electronically from the provider. You may want to contact your information systems vendor to determine if the portal you are implementing can provide you with this kind of information as it may not be collected and stored in a way that a report could be generated to evaluate compliance.

In addition, a new Menu criterion was added in the final Stage 2 regulations, found at 495.6(k)(6). Here, a practice could elect to enter patient chart information as structured data; the metric requires that 30% of patients that are seen during the reporting period have data entered in this manner. As a practical matter, many EHR systems today will store documented patient information as structured data where the patient visit is documented electronically as a part of the patient visit. This might be an easy Menu criterion to comply with (as you need to pick three of the six total criteria in the final Stage 2 regulations).

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 medication orders;30% of lab and rad orders
§ 495.6(d)(2) – drug-drug and drug-allergy checking	Enabled during period	moved to 495.6(j)(9), same metric
§ 495.6(d)(3) – maintain up to date problem list	80% of patients	subsumed into transition of care requirement.
§ 495.6(j)(2) electronic prescriptions	[§ 495.6(d)(4)] 40% of Rx	50% of Rx
§ 495.6(d)(5) – active medication list	80% of patients	subsumed into transition of care requirement.
§ 495.6(d)(6) – active allergy list	80% of patients	subsumed into transition of care requirement.
§ 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	not a separate criterion; CQM submission required
§ 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 & 5% actually download information
§ 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	50% 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	50% of transitions of care have patient summary; 10% of transitions must involve exchange of data
§ 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	5% 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 6 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	10% of imaging results in EHR
§ 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(k) (6) record electronic notes in patient records	N/A	30% of patients seen during the reporting period
[§ 495.6(e)(1)] – implement drug formulary checking	Enable functionality	Moved to Core / decision support
[§ 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

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.

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, ebay.com 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. Gamify.com 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!