Telehealth Soapbox: Negotiating a Vendor’s Limitation of Liability Clause

May 16, 2013 | by

This is the third of an occasional series on US law and intellectual property (IP) as it affects software and systems used in health technology. This article is a ‘how to’ on achieving a more equitable liability arrangement between a company and a vendor. A standard clause a vendor uses to protect their company from liability can cause a great deal of trouble and financial heartache for a contracting company when ‘things go sideways’. Correspondingly, if you are a vendor or partner, this enables you to anticipate issues a skilled negotiator on the other side of the table will present.

Mark Grossman, JD, has nearly 30 years’ experience in business law and began focusing his practice on technology over 20 years ago. He is an attorney with Tannenbaum Helpern Syracuse & Hirschtritt in New York City and has for ten years been listed in Best Lawyers in America. Mr. Grossman has been Special Counsel for the X-Prize Foundation and SME (subject matter expert) for Florida’s Internet Task Force. More information on Mr. Grossman here.

When clients come to me to consider suing because of a tech deal that has gone bad, the single worst lawsuit killer is often the “standard” limitation of liability clause found in a vendor’s form agreement. It never ceases to amaze me how people don’t pay attention to these clauses as they blithely sign-off on a one-sided agreement. It’s just one little clause and yet it can cause so much damage.

Here’s an example of the type of provision that you’ll see in tech agreements:

“The liability of vendor to customer for any reason and upon any cause of action related to the performance of the work under this agreement whether in tort or in contract or otherwise shall be limited to the amount paid by the customer to the vendor pursuant to this agreement.”

Yes it’s heavily slanted in favor of the vendor—it’s the vendor’s form. I draft them just as one sided when I’m representing a vendor so that I protect MY client. As I always say, he who drafts sets the agenda. (more…)

Six technologies for aging in place: a review

May 16, 2013 | by

Analyst and trendspotter Laurie Orlov in Aging in Place Technology Watch reviews six new monitoring and assistive technologies designed to improve safety and independence for older adults in the home environment: for organizations, the Center for Technology and Aging (CTA)’s mHealth Toolkit [TTA 28 Sept 12]; Earl, a free voice driven iPhone & iPad newsreader app; the Lively telecare system [TTA 19 April]; the ConnectMyFolks iPad app for simple news, email, text, photos and videos; BugMe! Stickies for jotting reminder notes by ElectricPocket; and Unfrazzle to assist caregivers in task tracking and connectedness with other caregivers.

Plus: If you are looking for an underserved market in health systems and tech, it is certainly centers, facilities and individuals in dementia care. It has the paradox of being a growth market, highly profitable for senior housing–and largely bereft of care programs that do more than the minimum to help preserve the faculties of the person with dementia. This recent article by Laurie Orlov discusses a different approach linked to the Montessori Method being used at a dementia support center in Toronto. It adapts the widely used teaching method for children pioneered in 1907 to slow decline in brain function and behavior, at different stages. (Globe & Mail article)

Toward a better understanding of US care models

May 16, 2013 | by

HIMSS’ publishing arm, which has grown to several publications including ones we cite frequently, such as HealthcareITNews and GovernmentITNews, is launching an online site, Future Care, that will focus solely on “new and innovative models of care that improve individual and community well-being, while also reducing healthcare costs.” It has original material plus pickups from HIMSS Media’s other publications, and is supported by IBM’s Smarter Care initiative. (Related to its Smarter Cities initiative and telecare in Bolzano?) The current selection focuses on whether  ACOs are set up to fail (Center for Connected Health’s Dr. Joseph Kvedar rebuts Clayton Christensen and colleagues in the WSJ), outpatient care, readmissions and the utilization of big data. Of note is Merck Vree Health’s mHealth post-discharge care management program, TransitionAdvantage, which represents a change from its initial focus on diabetes management. There’s also the expected helping of IBM-related content including Watson and some IBM white papers. For designers and implementers seeking a better understanding of care and payer models for health tech workflow, this site pulls together a wide scope of information.

Healthcare IT–New York’s Next Big Thing

May 14, 2013 | by | 1 Comment

Sponsored by MIT’s Enterprise Forum and held on 8 May 2013, this event reviewed the efforts of entrepreneurs, investors, public entities and accelerators in changing the New York area from a ‘dead zone’  for health tech to a new hub of innovation–in what this Editor considers a record (two-three year) time. (Was it only July 2011 that 90% of local investment went to internet shopping and mobile?)

Moderator: Steven Krein, founder and CEO of health tech accelerator StartUpHealth (most recently in our news for their joint program with GE Ventures’ Healthymagination)

Panel: Jahan Ali, PhD, Senior Vice President, Partnership Fund for New York City; Serge Loncar, Founding President and CEO, CareSpeak Communications; Philippe Chambon, Managing Director, New Leaf Venture Partners

Steve Krein set the tone with predicting that NYC will be the hub of health IT. It is heading towards its tipping point; that healthcare is not only overdue for its time in investment but also where key factors are converging to make this possible–money, universities and companies within reach. Key factors are investors such as the Partnership Fund for NYC, which helped to fund the NY Digital Health Accelerator with the New York eHealth Collaborative (NYeC), which on the day of the meeting graduated eight startups (see ‘Related’ and video) with $300,000 of funding plus three provider pilots; and VC funds such as New Leaf Venture Partners. Updated 14 May (more…)

Swipe driver’s license, collect patient data in Texas

May 13, 2013 | by | 1 Comment

Texas state legislators and the Texas Medical Association are riding ahead of the herd with two smart ideas, one which is about to become law. The first is awaiting the governor’s signature, the just-passed Senate Bill 166, which would allow healthcare providers to collect and verify patient data by the simple procedure of swiping a Texas resident’s driver’s license. The second two bills have passed the Texas Senate and are in their House committee: SBs 644 and 1216 standardize the preauthorization forms required for prescription drugs and health services–one of the biggest headaches and time-wasters for doctors. Texas Tribune via The New York Times. iHealthBeat

Before you go for that mhealth app, read this

May 13, 2013 | by

This common sense six-page guide to consumer mHealth apps, which are proliferating like dandelions on spring lawns, is free, fairly simple and put together by a trusted source–The American Health Information Management Association (AHIMA). Its emphasis is on defining what an app is, how to select the best one for you and–being that it’s AHIMA–securing your private data, particularly taking some care to read the app’s privacy policy. One hopes that they will get the word out through consumer and privacy channels, not to just the HIT and IT security types who read HealthITSecurity. MyPHR/Mobile Health Apps 101: A Primer for Consumers

An ‘Office of mHealth’ a solution for FDA gridlock? (US)

May 13, 2013 | by

The ‘FDA Office of mHealth‘ bill (H.R. 6626) as sponsored by Mike Honda, Silicon Valley’s House Representative (California 17th District), which expired with last year’s Congress [TTA 18 Dec] will be revived with revisions, according to MedCityNews. (Rep. Honda will be keynoting on the second day of MedCityNews’ ENGAGE conference in Washington D.C. in June.) Formerly dubbed HIMTA (Healthcare Innovation and Marketplace Technologies Act) will now include how that office will work with the alphabet soup of other agencies: FCC, HHS, ONC, FTC. It struck this Editor in December–and later [TTA 28 Mar]–that this bill does not go far enough. In its good intentions to speed mHealth approvals by creating a framework plus monetary incentives, it is not powerful or independent enough to slice through or bypass various turfs.  What would be revolutionary is simplification. Why not an independent unit that draws from FDA, FCC and HHS, but has priority and license to cut through red tape? But that would require major giving up of ground–and with this Federal Government, that ain’t gonna happen. Add to it that the most innovative work–and usage– is being done at DOD (DARPA, T2) and the VA, and the alphabet soup becomes goulash.  Wall Street Journal’s Venture Capital Dispatch

Sensors for detecting substance abuse

May 13, 2013 | by

Last week’s ATA also included a session on a test of using an already-existing sensor system–the Zephyr BioHarness–to detect substance abuse. Dr. Jin Ho Yoon, a psychologist at Baylor College of Medicine (Houston, Texas) is leading the National Institutes of Health (NIH)-funded test of tracking cardiovascular and respiratory changes in cocaine users. An in-hospital test with low levels of cocaine in saline detected a sharp increase in heart rates for the first 10 minutes after exposure, with increased heartbeat versus the control group throughout the entire 30-minute measuring period. The plus side is that it works outside hospital monitoring; the minus is that the battery in the chest strap only is good for one day. The end is to discover what triggers addicts’ relapses. The Baylor team is also evaluating the BioHarness for smoking cessation and exercise in obese patients. Mobihealthnews (extended article).  GigaOm also notes the wristband iHeal from the University of Massachusetts Medical School which detects changes in the electrical activity of the skin, body motion, skin temperature and heart rate to determine when the user might be on the verge of risky behavior like substance abuse.

Apps that put you on the couch

May 11, 2013 | by

Despite the light tone of this Editor’s headline, telepsychiatry and telementalhealth or ‘mood’ apps aren’t frivolous in the least. The US Department of Defense (DOD) National Center for Telehealth and Technology (T2) T2 Mood Tracker and BioZen are two smartphone apps for biotherapeutic feedback [TTA 14 Feb]. Virtual consults are also not brand new–but controversial, as some have used Skype which the TeleMental Health Institute in a recent Psychiatric News article has scored on privacy (as in no).  Four new entrants are taking a different approach, with different models and HIPAA-compliant video consults.

  • TalkSession is first establishing itself as an authority for providers via an online forum and digital magazine–then as a booking source for online therapy.
  • Talktala is hosting online chats and forums moderated by therapists, and for more advanced services will charge users a $30/month subscription fee.
  • iCouch allows users to search for therapists, and then via computer or iPhone visit online through the site’s HIPAA-compliant system. Interestingly 30-40 percent of its current client base is international and has 165 therapists worldwide. (International visits are an interesting loophole in practice.)
  • Breakthrough is only for California residents at present, but plans to expand to Texas and other states. Patients again connect with a network of certified mental health professionals and conduct appointments via chat, email, phone or HIPAA-compliant video. Unlike the others, it has gained insurance coverage for its therapists’ services, shows real-time therapist availability and plans to enable on-demand, off-hour services.

Web therapy: 4 startups overcoming mental health taboos with technology (GigaOm)  Hat tip to David E. Albert, M.D. of AliveCor.

The law of ‘UFCs’

May 10, 2013 | by

When it comes to the implementation of major healthcare technology, UFCs–or Unintended Financial Consequences–loom like Everest over the hill of ROI, particularly when the investment is in hundreds of millions and the UFCs are directly caused by it. It makes the telehealth and telemedicine initiatives in the ATA ROI ‘Jello to the Wall’ discussion below look like an argument over a penny poker game. Combine a high TCO (total cost of ownership) with a fuzzy ROI and throw in a few big UFCs such as reduced admissions/patient volume, inaccurate charging for services and declining reimbursement, and it’s ‘The Poseidon Adventure’ for many smaller, on-the-edge health systems resulting in Chapter 11. This analysis, though about an EHR implementation (Epic) at MaineHealth–a Cadillac when a Chevy would have done–is worth reading and dissecting. What Is The Opposite Of Health IT Return On Investment? HIT Consultant   Hat tip to Ellen Fink-Samnick of ‘Ellen’s Ethical Lens’

Interview with Jawbone’s Hosain Rahman

May 10, 2013 | by

A fascinating interview–not the usual corporate oatmeal–with the founder/CEO of Jawbone (the UP fitness tracker) from the early days of engineering at Stanford University, thinking about user interfaces back in the 1990s (!) with Palm Pilots and the start of Jawbone in his brother’s house which first developed noise-canceling back-of-the-ear or on the jaw headsets. The headsets led to accelerometers…and then to UP. It’s also a chronicle of an engineer who naturally segued to being an entrepreneur, and the challenges of partnering and manufacturing without getting your IP stolen. Video is 48:16, so set aside some time.

ROI in telemedicine and telehealth? Outlook unclear.

May 10, 2013 | by | 2 Comments

ATA 2013’s final ‘industry executive session’, presented at the late hour when most attendees are daydreaming about a comfy chair and a solid drink, tackled one of the thornier underlying questions beleaguering health tech: return on investment (ROI). Providers want hard numbers, but even that definition is…indefinite. Is it data? Is it outcomes? Is it savings? Is it reduction in spending? For two systems or populations, it can be reducing 30-day same cause readmissions for one provider or improved outcomes in home care for another, and the results are not analogous nor even cause-and-effect. As Eric Wicklund from mHIMSS put it, “that’s the challenge, and it was the primary focus of this year’s ATA conference. The pilots are gone, the possibilities and proposals are old. It’s time to target the telemedicine and mHealth programs that are working and to explain why they are…” As GlobalMed’s Roger Downey less delicately put it, “It’s like pinning Jell-O to a wall”–but getting specific as to what should be done in the market helps. Not quite as blithe as the headline. ROI? To some of the industry’s top vendors, that’s just three letters.

Of course, EHR implementation continues to be the Rodney Dangerfield of health tech, with HITECH Act ‘Meaningful Use’ interoperability goals and patient platforms only spottily achieved despite years of generous past, present and future incentive payments. Yet one ATA presenter seriously advocated the addition of telehealth/telemedicine to MU standards, recommended that Health and Human Services become the authority and to add panels for Federal standards and policy in telemedicine as there are for health IT. Adding telehealth and telemedicine to the MU scramble will surely speed implementation ;-) (See above) Why not MU for telemedicine? (HealthcareITNews)

Friday telehealth ‘snaps’

May 10, 2013 | by

It appears that Bayer HealthCare is exiting the telehealth business with the sale of Viterion TeleHealthCare to the newly formed Viterion Corporation. According to the press release, Japan’s NSD Co., Ltd. through its US subsidiary is providing the investment and strategic support, and taking on all products and personnel. Viterion’s offerings in recent years have remained fairly static, but the Viterion release promises a change to “advancing our technology offerings, and in particular the migration to wireless and mobile applications.” Viterion also had speakers and a booth at ATA 2013.

Mobile connectivity is now reaching everywhere. Canadian companies PatientOrderSets.com, a developer of web-based evidence-based clinical checklists to specify appropriate patient treatments, acquired fliiSolutions (pronounced Fly). Its fliiTherapy connects providers and patients through a rehabilitation/exercise prescribing/tracking app. Announcement on the PatientOrderSets.com website.

For mothers in the hospital temporarily separated by necessity from their babies in Los Angeles’ Cedars-Sinai Medical Center’s neonatal intensive care unit, the new Baby Time iPad app enables them to check on and interact with their newborns. This will aid the estimated 20 to 30 percent of mothers who undergo C-sections and cannot be ambulatory for 24 to 48 hours. Cedars-Sinai release. (Hat tip to TANN Ireland’s Toni Bunting)

Tunstall Americas announced at ATA the introduction of its Vi telehealth/two-way PERS unit, iVi fall detection pendant and the CEL450 home-based cellular PERS, although the blog placement is rather low-key. Release.

Telemedicine advances in Latin America

May 7, 2013 | by

Some welcome news out of the ATA 2013 meeting are the advances that telemedicine is making in Latin America and the Caribbean. Honored at ATA’s Sunday session were Jennifer Lopez and her eponymous family foundation for funding telemedicine outreach in Puerto Rico and Panama via the Children’s Hospital of Los Angeles (CHLA). In Puerto Rico, the work is concentrating on pediatrics genetics, and a monthly clinic that counsels four families per session. In Panama, the emphasis is on extending pediatric care beyond Panama City to the low-serve country areas through Panama City’s three major hospitals. The point is that the Lopez Family Foundation is only the start in the region, and that other healthcare providers and funding entities should be joining in kicking off development (Telefónica should be noting) HealthcareITNews

HealthSpot, Netsmart ally for telemedicine kiosks

May 7, 2013 | by

HealthSpot, which debuted its staffed telemedicine/telehealth Stations at CES 2013 (and this Editor previewed at CES New York in November), is partnering with behavioral health EHR/practice/clinical case management software provider Netsmart to add that capability to its kiosk consults. Announced at ATA yesterday, the MedCityNews article is sketchy on exactly how this will be integrated–will it be an option or will select kiosks be dedicated to behavioral health only–but this is likely a first for telementalhealth (another term in our lexicon!) Kiosk placements can be especially useful in rural areas which have a paucity of mental health/psychiatric providers (see TTA on Forefront TeleCare’s ATA announcement). It also follows this year’s ATA theme of telemedicine to more effectively serve rural US areas. HealthSpot also announced a pilot with Nationwide Children’s Hospital in its hometown of Columbus, Ohio; their CEO claims it has orders for 150 units in hand for its now three health system partners. Surprisingly, as of April they are already at Series C funding with a $10.4 million financing (of a $20 million offering) from giant Cardinal Health and other private investors.

The etiquette guide to Google Glass

May 7, 2013 | by | 1 Comment
[grow_thumb image=”https://telecareaware.com/wp-content/uploads/2013/02/gimlet-eye.jpg” thumb_width=”150″ /]Lo and behold, we are already anticipating the effects that Google Glass will have on our everyday social interactions! And the view is a bit jaundiced. The Wall Street Journal this weekend catalogued in a most amusing article all the ways wearers could offend, accompanied by 1890s-vintage illustrations (modified) of said gaffes, and what courtesies wearers should exercise whilst wearing in public:

 

  • Always remember: You have a camera on your head (so easy to forget)
  • Use voice commands only when you need to
  • Don’t use Google Glass to make phone calls in public (what then, pray tell, is the point?)
  • Give it a rest sometimes
  • Don’t be creepy (a tall order)
  • Let people try it on

Unfortunately, the writer reminded the Eye of the unfortunate time around 2004-6 when Bluetooth earleechespieces became the rage among Masters of the Universe and office tech nerds–the item you most wanted to rip off said ears and stomp sans merci into the ground, which fortunately dimmed its popularity. Of course, the article includes a Gallery of Previous Offenders just to show we naysayers how wrong we will be, how benign this all is….

Oh, but not so fast! Jason Perlow in ZDNet’s TechBroiler considers Glass as Cybernetic Headband, or Cyband, that in current design it is flawed in being too much in one device–and a massive security risk. Not much of a leap, because the ‘Explorer’ version has already been jailbroken, opening all sorts of nasty possibilities for stealthy surveillance by sociopaths. It’s Alice through the ‘Evil Glass’. Mr. Perlow also has a torturous view of the future, when we are Beyond Google Glass: 2034 into full-blown Augmented Reality implants. A dystopia that makes one scream. The Eye is now checking residency requirements and travel itineraries (boat and seaplane only) to the remotest parts of New Zealand or Tulabonga… [Editor Donna: We ask our readers to help keep The Gimlet Eye in civilization. Please help the Eye see that GG is not all bad! Your comments please!]

[grow_thumb image=”https://telecareaware.com/wp-content/uploads/2013/05/surveillance-ban.jpg” thumb_width=”150″ /]Update: And the revolt continues with locations from Vegas casinos to Seattle dive bars telling GG that they are No Wearing Zones–but the NY Times article spends 20 percent of its space on a long-dead Twitter/photo controversy. More to dine on about the jailbreak plus, courtesy of the worthy anti-GG blog Stop The Cyborgs and Jay Freeman’s blog Saurik. (Photo courtesy of Stop the Cyborgs)

Previously in TTA: The Gimlet Eye weighs The amazing lightness of Google’s Being There vs The Private Eye, and storms the barricades with The revolt against Google Glass