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The more things change and the more advanced we are with our technology, the more they remain the same. As long as there is any human component whatsoever to a process, there will always be a margin of error. The Washington Post reports today that a government laptop computer containing sensitive medical information on 2,500 patients enrolled in a

Included in the stolen data was seven years' worth of clinical trial data, including names, medical diagnoses and details of the patients' heart scans. The information was not encrypted, in violation of the government's data-security policy.

NIH officials did not publicly disclose the theft and did not formally, in writing, notify the affected patients of the breach in security until last Thursday -- almost a month later.  NIH officialts said they delayed because of concerns that they would provoke undue alarm. Yeah, ya think?

The Washington Post further reported that this month, the Government Accountability Office found that at least 19 of 24 agencies reviewed had experienced at least one breach that could expose people's personal information to identity theft.

John M. Hanamirian

The California Supreme Court has held that employers may terminate employees who test positive for marijuana use even if such use is prescribed by a physician to treat chronic pain. The Court held in

 "We conclude that the lower courts were correct:  Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.  Under California law, an employer may require preemployment    drug tests and take illegal drug use into consideration in making employment decisions.  We thus affirm."

Ross had been terminated after his preemployment drug test revealed the presence of THC, though he had given the drug testing company and his employer a certification from his doctor that the marijuana was used to treat chronic back pain. California is one of thirteen enlightened states with a Compassionate Use Act which permits marijuana use for medical reasons. Some medical historians note that marijuana or cannabis has been used for medicinal purposes for over 4000 years and, prior to the introduction of aspirin in the mid- nineteenth century, was widely used to relieve pain.

Despite the clear views of the people of California in approving such legislation, the majority reasoned that the Act did not “eliminate marijuana’s potential for abuse or an employer’s legitimate interest in whether an employee uses the drug.” 

The dissent recognized that the  majority “disrespects the will of California’s voters” in failing to protect an employee’s off-duty use of marijuana where a doctor had recommended it. Termination of such an employee, according to the dissent, would be a violation of the California Fair Employment and Housing Act unless the employer could demonstrate that the off-duty use would impair the employer’s operations. The employer offered no such defense in this case.

Alan Milstein

A New Jersey Chancery Court in Garcia v. Healthnet of New Jersey, Inc sent shockwaves through surgery offices when it held that a surgeon’s referrals of patients to an Ambulatory Surgery Center (“ASC”) he or she owns runs afoul of the New Jersey’s Codey law prohibition against self-referrals.  It is common practice (not only in New Jersey but throughout the country) for surgeons to own ASCs with other surgeons and for those surgeon owners to perform their surgeries at the ASC.  This model is cost effective, efficient and promotes quality. The Centers for Medicare and Medicaid Services("CMS")  recognizes the model in a safe harbor to the federal anti-kickback statute. The New Jersey Medical Board has acknowledged in advisory letters, under a limited factual setting,  that a surgeon owned ASC is an extension of his or her practice.  

             While this court decision has created uncertainty and concern in the health care community, New Jersey regulators should soon adopt regulations clarifying that such a referral is not a violation of Codey.  That is the right result, not only legally but also for patients and their health care providers.  For many years the Board has been working on draft amendments to its corporate practice of medicine regulations which, among other changes, would have clarified the model everyone believed to be permissible.  The Board has likely taken its time publishing the amendments in order to “get it right.”  Because of the lack of clarity and gaps inherent in the Codey law, “getting it right” is imperative.  Hopefully the court’s recent ruling will not accelerate the process at the expense of New Jersey finally achieving clarity in its regulation of the corporate practice of medicine and of self-referrals.  In view of all the other issues impacted by Codey and the present Board regulations, the ASC question is an easy one for the Board. 

Thomas J. Tamburelli