The overnight coverage arrangements enjoyed by hundreds of U.S. radiology groups and hospitals may now be in jeopardy, as federal and state legislatures consider bills that would bar or hamstring the offshoring of protected healthcare information.
Two bills that would regulate the export of personal information from the U.S. have now been introduced in Congress: S2471, by Sen. Hillary Rodham Clinton (D-NY), and HR4366, by Rep. Ed Markey (D-MA). Both proposals would essentially require patient consent for the use of overseas radiology readings.
A similar bill is pending in the California legislature. And nearly 30 states are considering lesser legislation to bar state contracts with businesses that engage in international outsourcing, according to Falls Church, VA-based healthcare attorney Thomas Greeson.
Greeson is monitoring these legislative developments for his client, Nighthawk Radiology Services, which currently provides overnight teleradiology coverage to more than 400 U.S. facilities in 46 states using radiologists located in Sydney, Australia.
Headquartered in Coeur d'Alene, ID, Nighthawk takes the looming legislative threats to its livelihood very seriously, said company vice president Jon Berger.
"We intend to be proactive in these areas -- educate the legislators as to what we do and how we're benefiting their constituents," Berger said in an interview with AuntMinnie.com.
To that end, Nighthawk has also engaged the services of Robert Achermann, executive director of the California Radiological Society and a principal of the Sacramento-based Advocacy and Management Group.
While concerns about the international outsourcing of U.S. jobs may be fueling some of the legislation, sponsors of the federal and California bills are pointing to recent incidents involving the threatened disclosure of Americans' private medical information.
In one case, a Pakistan-based medical transcriptionist reportedly threatened to upload patient records from the University of California, San Francisco Medical Center onto the Internet. She withdrew her threat after being paid by a subcontractor who was managing UCSF's files.
An Ohio medical transcription company, Heartland Information Services, reportedly received a similar extortion threat from workers in India. The episode ended with arrests by Indian authorities.
But while these incidents may be disturbing and dramatic, the resulting legislation is unwarranted, Achermann said.
"The companies that do (transcription) on behalf of a hospital are 'business associates' under HIPAA, and they are required to meet certain standards and safeguards," Achermann said. But "if someone commits a criminal act of extortion, there's only so much that can be done, whether they're a block away or a world away."
Because overseas teleradiologists must be licensed and credentialed for the location where their services are received, they have little incentive to engage in illegal disclosures that would put their medical licenses at risk, Achermann added.
The proposed legislation would "throw the baby out with the bathwater," said attorney Greeson, by eliminating teleradiology services that provide preliminary overnight reads at no additional cost to the patient.
"It's taking an issue that is emotionally charged, in an election year, talking about important confidential information and treating it in a manner that is not as carefully tailored yet as it needs to be before such policy is developed," Greeson said.
In addition to threatening the business model of Nighthawk and some of its competitors, the legislation could thwart the practices of individual American radiologists who have moved abroad but continue to work for U.S. facilities via teleradiology, Greeson noted.
All of the offshoring-regulation bills face significant opposition, and may well not continue in their current incarnations, if they survive at all.
California state senator Joseph Dunn (D-Garden Grove), said he was surprised by the vehement reaction to his proposal, which would apply to businesses handling many different kinds of legally protected personal information.
"The financial industry has declared a world war against my bill," Dunn said. "This one is a huge fight -- a bigger fight than I even had anticipated. I do not know yet whether we'll be able to get this bill to the governor's desk, or (whether) he'll sign it."
Dunn has already amended his original proposal in response to criticism, but remains committed to the concept.
"If it's legally protected information, part of the legal protection of that information is access to the U.S. court system," Dunn said. "If you're sending it to a place that takes it out of the U.S. court system's reach, and it's legally protected, it shouldn't go there."
If Dunn's bill is enacted in its current form, Achermann said, "it would probably not withstand legal challenge."
Indeed, all of the offshoring-regulation proposals may involve an illegal restraint of trade, suggested Berger -- especially if applied to Nighthawk's Sydney-based radiologists, who all happen to be U.S. citizens.
"To restrain a doctor from practicing medicine who legally has the right to practice medicine, just because they don't happen to be in the United States at the time they're rendering their service, could be a problem," Berger said.
And while Nighthawk's use of all U.S.-board-certified radiologists may have served as a model for the recently revised Statement on International Teleradiology issued by the American College of Radiology, Berger says that some American radiologists' concerns about other outsourcing in their profession may be unwarranted.
"If you're doing this legally, you need to be licensed in the state and credentialed at the hospital," Berger said. "There's no way that I could perceive that a hospital would provide themselves with the liability of allowing a radiologist who is not board-certified or licensed or credentialed to provide medical care."
By Tracie L. ThompsonAuntMinnie.com staff writer
May 27, 2004
Related Reading
ACR bolsters teleradiology statement, May 14, 2004
VRC to open Hawaii reading center, May 11, 2004Teleradiology providers handle after-hours caseload effectively, May 3, 2004
Overseas teleradiology faces legal hurdles, February 21, 2003
Imaging passage to India sparks outsourcing controversy, January 23, 2003
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