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6 HIPAA and YOU: Compliance Doesn’t Have to Hurt By Michael SommerkampLegal Counsel forIndiana State EmergencyManagement Agency
7 About This Presentation This presentation is not intended as legal advice and all EMS providers are strongly encouraged to consult with their attorneys and medical directors when drafting and implementing policies regarding HIPAA compliance, disclosures of PHI, and disclosure of PHI to law enforcement officers.This PowerPoint presentation, FAQs, and a hypertext version of its content are available at:
8 So What is HIPAA And What Does it Do So What is HIPAA And What Does it Do? Background and Vocabulary [Slide 1 of 3]The Office of Health and Human Services (“HHS”) created the Health Insurance Portability and Accountability Act (“HIPAA”), which affects the handling of Private Health Information (“PHI”) by Covered Entities (“CE”)HIPAA has 4 primary components, but this presentation will only address the Privacy Rule, which became enforceable on April 14, 2003The Privacy Rule creates a national floor for privacy standards and supercedes less stringent state laws
9 So What is HIPAA And What Does it Do So What is HIPAA And What Does it Do? Background and Vocabulary [Slide 2 of 3]HHS’ Office of Civil Rights (“OCR”) is in charge of enforcement actionsThe intent of the Privacy Rule is to give individuals basic rights regarding the use of PHI, which should NEVER compromise patient care
10 So What is HIPAA And What Does it Do So What is HIPAA And What Does it Do? Background and Vocabulary [Slide 3 of 3]Penalties for violations of HIPAA include:Civil Penalty: $100 per violation, maximum per year of $25,000Criminal Penalties:Wrongful Disclosure: Fine of not more than $50,000 and not more than 1 year imprisonmentDisclosure under False Pretenses: Fine of not more than $100,000 and not more than 5 years imprisonmentCommercial Advantage, Personal Gain, or Malicious Harm: fine of not more than $250,000 and 10 years imprisonment
11 The Privacy Rule’s Golden Rule For EMS Providers HIPAA should NEVER adversely affect the quality of patient care rendered or impede the ability of a health care provider to care for a patient
12 But Why Me?!? (Or am I a Covered Entity) 45 CFR § 160.103 A covered entity is a health plan, a health clearinghouse, or a health care provider;Who electronically transmits health information;For a transaction covered under HIPAA.Common transactions include: eligibility inquiries, health claims and other billing matters done by you or for your benefit (Use of a 3rd party billing company does NOT exempt you from HIPPA)Sending data to SEMA or NFIRS is NOT a covered transaction
13 Hybrid Entities 45 CFRHybrid entities are usually governmental entities or large corporations whose primary business is NOT providing health careThese entities segregate their components that perform health care functions from the components not related to performing health care functions.By doing this, only those components that perform health care functions must comply with HIPAA.
14 And If I’m Not a Covered Entity? Don’t Start to Celebrate Yet... Medicare will NOT pay claims that are NOT submitted electronically after October 16, 2003 (unless a 1 year waiver is sought and granted)OCR is currently offering an educational “grace period”HIPAA privacy standards have become the popular standard of care--Maybe expected by YOUR potential jury pool in a State Law privacy case...
15 But We Can Barely Afford Band-Aids (Or Scalability of Requirements) HHS expects that small providers will develop less expensive and less complex privacy measures than larger providersLimitations on small providers are to be considered when reviewing safeguardsSmall providers “will not be required to change their business practices dramatically” [Is this a sample of HIPAA Humor?!?]
16 Implementation Strategies Well, If I Gotta’ Do ThisImplementation Strategies
18 Requirements of Covered Entities (Slide 2 of 3) Understand Patient Rights and associated requirementsNotice of Privacy Practices (45 CFR )Access to Records (45 CFR )Right to ASK to Amend Records (45 CFR )Restrictions on Use or Disclosure (45 CFR )Alternative Communications (45 CFR )Accounting of Disclosures (45 CFR )How to File a Complaint (45 CFR )When disclosure is allowed, ALWAYS disclose the MINIMUM NECESSARY PHI
19 Requirements of Covered Entities (Slide 3 of 3) Update employee policies & proceduresIdentify Business Associates and adopt a form contractPut in place reasonable administrative, technical, and physical safeguards
20 The Standard for Protecting PHI 42 USC § 1320d-2(d) [Slide 1 of 4] Covered entities shall maintain reasonable & appropriate administrative, technical, and physical safeguards:To ensure the integrity and confidentiality of the information (electronic, written, or spoken)To protect against any reasonably anticipated:Threats or hazards to the security or integrity of the information; andUnauthorized uses or disclosures of the information; andOtherwise to ensure compliance by officers & employees.
21 The Standard for Safeguarding PHI 42 USC § 1320d-2(d) [Slide 2 of 4] HHS has stated that the use of encoded radio or electronic transmissions is NOT REQUIREDPrudence dictates that you:Maintain run sheets in a secured area and limit accessAdd passwords to computers and networks that contain PHIAdding confidentiality statements on s and faxes that contain PHIMaintain fax that receives PHI in secure location and limit access
22 The Standard for Safeguarding PHI 42 USC § 1320d-2(d) [Slide 3 of 4] Incidental Disclosures can be made for treatment, but the care provider must use discretion and most secure manner availableIf a patient name must be used when contacting the hospital, then use a cell phone if possible and availableIf others not involved in treatment are near, then whispercommon sense and a team approach towards compliance can go a long way
23 The Standard for Safeguarding PHI 42 USC § 1320d-2(d) [Slide 4 of 4] Beware any use or discussion of PHI NOT specifically permitted, such as:discussing a run as you walk from ER to ambulancediscussing a run at the station/ Pizza Hut/ gym/ bar/ or anyplace other than audit & reviewdiscussing “interesting” runs, famous patients, or even relatives or neighbors.Interesting run: if discussing the run could embarrass someone (think foreign object and orifice…)These standards cover medics and billing agents, and anyone else with access to PHI
24 When Unsure Whether You Can Discuss A Run... Ask yourself if Judge Hang’em High would agree that the disclosure was for the benefit of the patient AND that it was done with the utmost discretion...
25 Designate a Privacy Official All CEs must appoint a Privacy OfficerThe Privacy Officer should develop a Privacy Program and procedures with the assistance of both the medical director and the attorney who would defend the provider in a HIPAA actionThe Privacy Officer can have other duties, but should have the time and resources needed to fulfill required HIPAA duties (and just maybe a large stick to assist in enforcing Privacy Standards…)
26 Duties of a Privacy Officer Policies must comply with HIPAA and State LawPrivacy Policies must be documented, disseminated to, and followed by all employees through a privacy training programAll employees MUST complete this program and sign a statement that they have completed the program and will comply with the policies
27 Who Is An EmployeeFor the purpose of the the Privacy Rule employees are volunteers, students, trainees, independent contractors, and anyone else under your control.
29 Develop An Authorization Form for the Release of PHI 45 CFR 164.508 Most EMS disclosures fall under the Treatment, Payment, and Health Care Operations (TPO) exemptionAuthorization is required for disclosures NOT otherwise authorized under the Privacy RuleAuthorization is required for marketing NOT conducted by the Covered Entity
30 Notice of Privacy Practices (NPP) 45 CFR 164.520 [Slide 1 of 2] You must develop a compliant NPPThe NPP must be in plain language, which might require a Spanish NPP if you serve a Spanish-speaking communityYou must make a Good Faith attempt to give a NPP to each Pt or Pt’s representative AND to get a signed Acknowledgement of Receipt in non-emergency situations by each Pt or a Pt’s representativeIn Emergency Treatment Situations, the NPP must be given as soon as practical--maybe leave a copy at hospital, mail w/ the bill…
31 Notice of Privacy Practices (NPP) 45 CFR 164.520 [Slide 2 of 2] If a patient refuses a run she should still be given a NPP, and her Acknowledgement of Receipt could be added to the refusal formServices who maintain a web site MUST post their NPP on the site (**Look for these FREE examples**)The NPP has many technical requirements: check the requirements in the Rule as you look at examples
32 NPPS & Unemancipated Minors [Slide 1 of 2] The Privacy Rule does NOT address consent to treatment, so Indiana law regarding the ability of minors to consent (or sign) is unchangedJust as a minor in Indiana is not deemed competent to refuse treatment, a minor is likely not deemed competent to accept a NPP or to sign for its acceptance
33 NPPS & Unemancipated Minors [Slide 2 of 2] In descending order the following may give consent for medical treatment for an unemancipated minor (or are able to accept or to sign to accept a NPP):A court-appointed guardian; (if unavailable) thenA parent or person acting in loco parentis [acting as a parent]; (if unavailable) thenAn adult sibling; (if unavailable) thenA law enforcement officer who believes the minor’s condition is “seriously impaired or endangered”
34 Patient Rights [Slide 1 0f 2] Patient Rights requirements are detailed and MUST be precisely followed: See slide #18 for citationsMost patient rights MUST be listed on the NPPIf patient is not legally competent, then patient representative can exercise patient’s rightsPatients must be allowed to access & copy their PHI within 30 days of their request to access & copy
35 Patient Rights [Slide 2 0f 2] Patient must be given a NPP as soon as practical and a good faith effort must be made to get a Signature of ReceiptPatient has the right to REQUEST to amend recordsPatients can request an accounting of unauthorized and non-routine disclosures of their PHI for up to 6 yrs, but only for dates after April 14, 2003Patients must be told how to file a complaint
36 Business Associates 45 CFR § 160.103 Entities who perform services on your behalf AND have access to your PHI are Business AssociatesYour employees & other care providers are NOT BAsSome potential BAs: 3rd party billing companies, outside claims consultants, outside medical directors, software vendors, computer consultants, computer repair personnelSample Business Associate contract available at:
37 HIPAA & State Laws (Slide 1 of 2) HIPAA preempts less stringent state privacy lawsIn addition to HIPAA requirements, all Indiana EMS certificate holders, even the few who work for entities NOT covered by HIPAA, risk being subject to fines and suspension or revocation of their Indiana Certification for the “Unauthorized disclosure of medical records or other confidential patient information.” See 836 IAC 1-1-2(a)(8).
38 HIPAA & State Laws (Slide 2 of 2) EMS services provided by or under a contract with a public agency must make the following information available:The date and time of the request for ambulance servicesThe reason for the request for assistanceThe time and nature of the responseThe time of arrival at the sceneThe time of departure from the sceneThe name of the facility, if any, to which the patient was deliveredSee IC
39 Permitted Unauthorized Disclosures (Slide 1 of 2) Exemptions are found in 45 CFR §Privacy Rule ALLOWS the disclosure of PHI for:Treatment, Payment, and OperationsWhen Required by LawPublic Health Activities (sending run report data to SEMA or NFIRS)Victims of Abuse, Neglect, or Domestic ViolenceHealth Oversight Activities (SEMA hearings)[List continued on next slide]
40 Permitted Unauthorized Disclosures (Slide 2 of 2) (Exemptions continued from previous slide)Judicial & Administrative ProceedingsLaw EnforcementBirths and DeathsOrgan and Tissue DonationResearch PurposesProtect Public SafetySpecialized Government Functions
41 Your New Best Friend: Treatment, Payment, and Health Care Operations Treatment, Payment, and Operations (TPO) disclosures are allowed without authorizationTreatment: giving PHI to other providers involved in treating the patient, such as a hospitalPayment: receiving PHI from other providers (such as a hospital) needed for billing for treatment (filing claims, coordinating benefits, eligibility inquiries, collections,…)Operations: audit & review, quality assessment, medical or legal auditing…Remember the EMS GOLDEN RULE: When disclosure permitted, disclose the MINIMUM NECESSARY PHI
42 Disclosures Required by Law [Slide 1 of 2] The Privacy Rule allows most disclosures of PHI statutorily required by Indiana law.Only the minimum necessary PHI may be disclosed and only to the recipient specified in the Indiana law (See the following example)
43 Disclosures Required by Law [Slide 2 of 2] Example: Indiana Law requires a practitioner* who initially treats an injury from fireworks or pyrotechnics to submit a report to the State Dept. of Health. As HIPAA exempts this and Indiana Law requires it, the State Dept. of Health MUST be given this report. Yet, the unauthorized release of the same information to local law enforcement, which is not required by either HIPAA or Indiana Law, would violate HIPAA. *(A practitioner holds an unlimited, limited, probationary, or temporary license, certificate, or registration.) IC
44 Public Health Activities Disclosures to public health authorities authorized by State Law to receive that PHIThis SPECIFICALLY ALLOWS sending run report data to SEMA or NFIRSThis also ALLOWS an EMS provider who was exposed to blood or bodily fluids to request notification if the patient has a communicable disease. See IC
45 Victims of Abuse, Neglect, & Domestic Violence HIPAA allows and Indiana Law requires:A person who believes an “endangered adult” is a victim of battery, neglect, or exploitation to report this to Adult Protective Services or to law enforcement. IC & ICA person who believes that a child is a victim of abuse or neglect to immediately notify their boss and to immediately notify either local child protective services or local law enforcement. IC
46 Health Oversight Activities This SPECIFICALLY ALLOWS disclosing PHI for SEMA investigationsIt also allows disclosures to other supervising health entities:Audits & Investigations by supervising hospitals and/ or physiciansMedicare audits and investigations
47 Judicial & Administrative Proceedings This also SPECIFICALLY ALLOWS disclosing PHI for SEMA investigationsDisclosure must be made when a Judge, an Administrative Law Judge, or a Grand Jury orders the disclosure through a subpoena or a warrantBut NOT when an attorney or party to the litigation signs a subpoena
49 When Disclosure to Law Enforcement is Allowed [Slide 1 of 5] A CE may disclose PHI to Law Enforcement when:Required by State Law (please see the note titled “Mandatory Disclosures of PHI Required by Indiana Law,” near the end of your informational packet)Ordered by a court (warrant or subpoena signed by Judge, Administrative Law Judge, or Grand Jury--NOT attorney)Ordered by Administrative subpoena from authorized agency
50 When Disclosure to Law Enforcement is Allowed [Slide 2 of 5] Needed to identify or locate a suspect, fugitive, missing person, or witness a provider may release:name & addressdate & place of birthsocial security numberblood typetype of injurydate & time of treatment (or death, if applicable)distinguishing characteristics: height, weight, gender, race, hair & eye color, scars, tattoos, & presence of facial hair
51 When Disclosure to Law Enforcement is Allowed [Slide 3 of 5] If care recipient is a victim of crime AND:unable to consent; ANDOfficer states PHI needed to determine whether violation of law occurred by someone other than victim; ANDPHI is NOT intended to be used against the victim; ANDImmediate Law Enforcement activity will be affected by waiting until victim can give consent; ANDIn your professional judgement you deem the disclosure is in the best interest of the victim.
52 When Disclosure to Law Enforcement is Allowed [Slide 4 of 5] Under IC , Indiana law enforcement officers are statutorily required to gather the following information:Name and address of the owner and operator of each vehicle involved in the accidentLicense number and description of each vehicleTime and place the accident occurredName and address of each person injured or killedName and address of each witness to the accident.(Continued on next slide)
53 When Disclosure to Law Enforcement is Allowed [Slide 5 of 5] As State Law requires a law enforcement officer to collect the preceding information, disclosing the minimum necessary information should not violate the Privacy Rule. However, EMS providers are, by their nature, patient advocates and should always encourage law enforcement officers to gather information directly from the patient when possible, as opposed to from the EMS provider.Develop a policy with the assistance of your attorney, CEO,provider hospital, and local law enforcement.
54 Specialized Government Function If any of these arise, consult with your attorneyMilitary & Veteran AffairsDepartment of Defense ActivitiesRequired for national securityRequired to Protect the President or other national dignitariesSecurity clearancesInmates in governmental custody and others
55 Other Allowed Disclosures Organ & Tissue DonationFor specific research purposesTo avert threats to safety: requires good faith belief that the disclosure will:prevent or lessen a serious & imminent threat to public or a person’s health; orto assist law enforcement AFTER an individual admits to involvement in a violent crime; orIt appears the individual is a fugitive from the law
56 HIPAA Resources (Slide 1 of 2) Your starting points should be OCR’s HIPAA web site : ANDOCRs FAQs (Get this FREE Resource!!):The full text of the final regulation is available at:Centers for Medicare and Medicaid Services (“CMS”):CMS’ Compliance Checklist:SEMA’s HIPPA site:
57 HIPAA Resources (Slide 2 of 2) CMS’ Ambulance Services Web Page:Phoenix Health Systems HIPAA page:NEDARC’s HIPAA Web Site: