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1. A HIPAA y Más AlláA HIPAA y Más Allá
La Ley de AislamientoLa Ley de Aislamiento
y Confidencialidy Confidencialidaadd
Curso de Aprendizaje de Interpretadores deCurso de Aprendizaje de Interpretadores de
SaludSalud
Samford University
Deciembre 1, 2010
Por John R.Wible, Principal Abogado
Alabama Department of Public Health
1ADPH, 2010
3. The “La Regla de Oro de laThe “La Regla de Oro de la
Documentación”Documentación”
The “Golden Rule of Documentation:”
If it ain’t wrote down it didn’t happen!
“Wible’s corollary”
The way it is wrote down is the way it
happened regardless of the way it happened!
3ADPH, 2010
4. Confidencialidad-Confidencialidad-
Acceso a Archivos en GeneralAcceso a Archivos en General
All patient information is strictly
confidential
◦ Contract Employee Handbook 10-04
Some Bad Scenarios
Bad scenarios equal bad liability
4ADPH, 2010
5. Condiciónes paraCondiciónes para
Entrega de InformaciónEntrega de Información
Conditions for release of information:
◦ Prior written consent of
Patient,
parent/guardian
Subpoena in accordance with
Departmental/ institutional policy
Otherwise provided by law
5ADPH, 2010
6. TB/STD/DC ArchivosTB/STD/DC Archivos
Son ConfidencialesSon Confidenciales
STD/TB/disease control information not
public.
Not revealed even by subpoena
Not admissible into evidence except for
commitment hearings
ADPH requests for notifiable disease
records to be forwarded to Legal
◦ Call 334.206.5209.
See ADPH Policy 04-02 for specifics
6ADPH, 2010
7. Disease Control GuidelinesDisease Control Guidelines
Information considered not confidential:
Final completed report written in blank,
not identifying any persons
The name of businesses, establishments,
restaurants involved in an investigation
Aggregate statistical information
Any other public records
Regular environmental and daycare
inspection reports
7ADPH, 2010
8. ConfidentialConfidential InformationInformation
(EPI)(EPI)
Epidemiologic interview sheets
Required reports
Work papers, notes and analyses
Actual numbers of cases or IDs
Correspondence on a case
Complaint generated environmental and
other inspection reports
incomplete drafts of reports
Other document received privately
8ADPH, 2010
9. Released With AuthorizationReleased With Authorization
A notifiable disease record generated by
the Department or in the possession of
the Department (such as electronic
laboratory reports or facsimile lab
reports) that concerns the symptoms,
condition or other information specific to
an individual
One patient’s authorization, however
does not release other person’s names or
information
9ADPH, 2010
10. Written AuthorizationWritten Authorization
Not Required:Not Required:
10
Transfer information from one county health
department to another or to the state office
Transfer information to physicians, nurse
practitioners or other health professionals
with contract or other provider arrangements
to provide care
Some practitioners require consents to
transfer out of abundance of caution
ADPH, 2010
11. ¿ Que Hace Una¿ Que Hace Una
Autorización Valida?Autorización Valida?
Description of the info to be released
Name or description of info receiver
Name of patient
Description if the use of the info
Expiration date or continuous
Right of revocation by pt.
Notice of possible re-disclosures
Signature of pt or representative
See CHR Form 6A and instructions
11ADPH, 2010
12. Nota Relativa a CiertaNota Relativa a Cierta
informacióninformación
CHR 6A states: pt. is made
aware that s/he is releasing
STD/HIV/AIDS or drug and alcohol
treatment or mental health records
This is NOT required if other
providers’ releases meet the earlier
criteria
Recent Example
ADPH, 2010 12
13. Release of ContactRelease of Contact
Information - No lo HagasInformation - No lo Hagas
The medical record or information regarding
STD/TB/disease control cannot be released
without the written consent of the patient
Even with consent, it should not include
contact information.
Don’t write identifying information about how
the patient contracted the disease
13ADPH, 2010
14. Confidencialidad - Acceso aConfidencialidad - Acceso a
Archivos MArchivos Méédicos de Los Niñosdicos de Los Niños
If a minor is qualified to consent and signs
the “consent for treatment”, only the
minor can sign to release the information
regarding those services
If the parent/guardian signs the consent
for treatment, the parent/guardian or the
minor may consent for the release
14ADPH, 2010
15. Acceso a Archivos MAcceso a Archivos Méédicos de Losdicos de Los
Niños - Los Derechios de los PadresNiños - Los Derechios de los Padres
All information pertaining to a child must be
equally available to both parents
However, if the child gave consent for services,
neither parent may have access to the records
without that child’s consent.
◦ Code of Ala, § 30-3-154
15ADPH, 2010
16. HIPAA BackgroundHIPAA Background
Passed August 21, 1996
Designed to simplify healthcare delivery
Provided for portability of pre-existing
health conditions
Standardized confidentiality and security
First such federal act of its kind
HHS makes the rules
Amended by “the Stimulus Package –
ARRA (HITEC)
16ADPH, 2010
17. HIPPA Regla de Privacidad –HIPPA Regla de Privacidad –
¿Cómo Regulada?¿Cómo Regulada?
Límites
◦ Setting limits on uses and disclosures
Fair information practices
◦ Allowing individuals some level of
access to their health data
Accountability
◦ Making covered entities accountable for
handling and abuses
17ADPH, 2010
18. How Uses/DisclosuresHow Uses/Disclosures
Are RegulatedAre Regulated
Uses or disclosures of PHI require either
◦ Written authorization or
◦ Individual opportunities to object
Covered Entities (CEs) may use or
disclose PHI without individual’s
informed consent for exceptions specified
in rule
18ADPH, 2010
19. HIPPA Regla de PrivacidadHIPPA Regla de Privacidad
¿ Que es Cubierto?¿ Que es Cubierto?
“Protected Health Information” (PHI):
Individually-identifiable health information
used or disclosed by a covered entity in
any form, whether electronically, on
paper, or orally
45 C.F.R. §160.103
19ADPH, 2010
20. Usos Sin ConsentimientoUsos Sin Consentimiento
por Escritopor Escrito
Treatment
Payment
Operations
Where required by law
20ADPH, 2010
21. ¿ Qien es Cubierto?¿ Qien es Cubierto?
Covered Entities (CEs)Covered Entities (CEs)
Health care providers that bill
Hybrid entities (like ADPH)
Health care plans
Health care clearinghouses
◦ 45 C.F.R. §160.103
21ADPH, 2010
22. Business AssociatesBusiness Associates
Business associates follow the same level of
protection in the privacy rule and include:
◦ Claims or data processors;
◦ Billing companies and financial service
providers
◦ Quality assurance providers and utilization
reviewers
◦ Lawyers, accountants & other professionals
45 C.F.R. §160.103
22ADPH, 2010
23. Business Associates and AARABusiness Associates and AARA
Must also adhere to the Security Rule like
CEs and are subject to same penalties
Establish administrative, physical, and
technical safeguards for Protected Health
Information (PHI)
Establish policies and procedures for
safeguards
Only use or disclose PHI in accordance with
HIPAA
“Rat Fink Provision”
23ADPH, 2010
24. HIPPA Privacy Rule:HIPPA Privacy Rule:
Who is Not Covered?Who is Not Covered?
Life insurance companies
Auto insurance companies
Workers’ compensation carriers
Employers
Others who acquire, use, and disclose
vast quantities of health data
AARA may place some requirements -
◦ E.g., PHI cannot be bought and sold
24ADPH, 2010
25. HIPPA Privacy Rule:HIPPA Privacy Rule:
What Is Not Covered?What Is Not Covered?
PHI does not include
◦ Education records covered by FERPA
◦ Employment records held by a covered
entity in its role as employer
◦ Non-identifiable health information
◦ 45 C.F.R. 160.103
25ADPH, 2010
26. HIPAA - What it Doesn’tHIPAA - What it Doesn’t
DoDoDoes not override state laws that provide
more patient privacy than HIPAA
Does not require that all risk of incidental
disclosures of patient information be
eliminated
Examples:
Cubicles
Shield-type dividers
Sign-in sheets
26ADPH, 2010
27. HIPAA y ADPH PrivacidadHIPAA y ADPH Privacidad
27
See ADPH HIPAA Privacy
Policy 06-008
◦ “Minimum Necessary”
Concept
◦ Patient Verification
◦ Fax Confidentiality
◦ The “HIPAA Log”
◦ Breach Sanctions
◦ Needs updating
ADPH, 2010
•See also CHR Manual y Contract Employee Handbook
28. How Uses/DisclosuresHow Uses/Disclosures
Are RegulatedAre Regulated
Minimum necessary rule
When using or disclosing PHI, a covered
entity must make reasonable efforts to
limit such information to the minimum
necessary to accomplish the intended
purpose of the use, disclosure, or request
28ADPH, 2010
29. Divulgaciónes PermitidasDivulgaciónes Permitidas
“Minimum” info may be disclosed
To “public officials”
To public health
To law enforcement
To national security
and intelligence agencies
To judicial authorities
To researchers
To DHR for abuse reporting
29ADPH, 2010
30. Divulgaciónes a La PoliciaDivulgaciónes a La Policia
Pursuant to subpoenas or by verbal request
As “otherwise required by law
For ID and location purposes
Do not give disease information
Individual is a victim of a crime
To alert about a suspicious death
When criminal conduct occurs on premises
In emergency setting, to alert regarding
information pertaining to crime
30ADPH, 2010
31. Divulgaciónes paraDivulgaciónes para
Seguridad NaticionalSeguridad Naticional
CEs may disclose PHI to authorized federal
officials for the conduct of intelligence,
counter-intelligence, and other national
security activities
31ADPH, 2010
32. DisclosureDisclosure ToTo Public HealthPublic Health
Disclosure permitted to:
“public health authority that is
authorized by law to collect and receive
such information for the purpose of
preventing and controlling disease, injury,
or disability, including… reporting of
disease… and the conduct of public
health surveillance….”
32ADPH, 2010
33. Child or Elder Abuse NoticeChild or Elder Abuse Notice
Examples of specific public health-based
exceptions include disclosures
◦ About victims of abuse, neglect, or
domestic violence
◦ To prevent serious threats to persons
or the public
33ADPH, 2010
34. Información de Los MuertosInformación de Los Muertos
May be released to:
Law enforcement
Transporting emergency medical
personnel
Coroners and their personnel
Mortuary personnel
Bureau of Health Statistics
34ADPH, 2010
35. HIPAA Regla de SeguridadHIPAA Regla de Seguridad
Primary objective: protect the
confidentiality, integrity, and availability
of EPHI when it is stored, maintained, or
transmitted.
Applies to identifiable electronic protected
health information (EPHI) related to:
◦ Past, present or future medical or
mental condition
◦ The individual’s health care
◦ Payment records
35ADPH, 2010
36. Modelo de DocumentaciónModelo de Documentación
Maintain documentation of policies and
procedures for 6 years
Make documentation available to
workforce who administer the policy
Review and documentation periodically
Ensure the confidentiality, integrity, and
availability of EPHI
36ADPH, 2010
37. ADPH Política de SeguridadADPH Política de Seguridad
HIPAA requires security of the
premises, i.e., door locks. See ADPH
Security Policy No. 05-16.
HIPAA also requires security of the
electronic records (computer
security)
HIPAA requires security of the paper
HIPAA requires security of your
mouth
37ADPH, 2010
38. Use of Department ComputersUse of Department Computers
Use ADPH furnished equipment/software
CSC/Tech Support will purchase and install
all network-connected devices
Use password protection & disclaimer
CSC/Tech Support will install software
updates
Connect laptops to the network once a
month
Back up critical data
◦ See ADPH Policy 2005-016
and Security Manual
38ADPH, 2010
39. Use of ComputersUse of Computers
Change password every 60 days
Use only for lawful activity
Report suspected viruses and attacks
Supervisors notify CSC on new employee
starting work or leaving employ service
Appropriate salvage of computers
Limit Department workspace
Wear badges
39ADPH, 2010
40. Patient AccountingPatient Accounting
Patients may ask for listing of disclosures
of their PHI up to six (6) years prior in
paper or elect. form
The following disclosures are NOT
required to be accounted for:
◦ Treatment, Payment, Healthcare
Operations (TPO)
◦ Disclosures to the patient or persons
involved with their care
◦ Disclosures authorized by the patient or
authorized representative
40ADPH, 2010
41. Patient AccountingPatient Accounting
Other disclosures which are not
required to be accounted for:
National security or intelligence purposes
Correctional institutions or law
enforcement
Incidental disclosures
Limited Data Sets used for research
purposes
41ADPH, 2010
42. HIPAA LogHIPAA Log
42
A single file which relates to pt. files
Kept with medical records
Documents “non-routine”
disclosures:
◦ date of the disclosure;
◦ the name/address of receiver
◦ brief description of the PHI
disclosed
◦ brief statement of the purpose of
the disclosure
ADPH, 2010
43. Required Logged ItemsRequired Logged Items
Unauthorized releases on the AIR Form
Releases required by law
Releases based upon subpoena
Releases to law enforcement for ID
Requests to limit releases
Requests to amend or correct PHI
Requests by the patient for accounting
Reports about victims of abuse, neglect,
or domestic violence
43ADPH, 2010
44. Disclosures -Disclosures -
NotNot Required to LogRequired to Log
TPO disclosures
Disclosures made to the patient or rep.
Pursuant to a valid authorization
National security or intelligence
purposes;
To a correctional institution or law
enforcement official that has custody of a
patient;
To a health oversight official
44ADPH, 2010
45. HIPAA BreachesHIPAA Breaches
When there is a breach of protected
info, the CE has a duty:
To report to or notify clients
To report to HHS and the media if >500
To mitigate the damage
To examine employees, policies,
equipment and facilities to prevent it
happening again
45
“Teton Dam
Breach”
ADPH, 2010
46. BREACHES - PENALTIESBREACHES - PENALTIES
Breach may subject employees and the
Covered Entity:
To criminal penalties (up to $250,000)
You are NOT covered by the Fund
To HHS civil penalties or lawsuits
To adverse employment action, IE.,
46ADPH, 2010
47. Program ManagementProgram Management
The HIPAA program and
certain other similar programs are under
the management of the Risk
Management Committee
Committee proposes HIPAA policy
changes
Committee receives and processes all
ARIA reports including possible HIPAA
breaches
The Committee oversees Red Flags
instances
47ADPH, 2010
48. Red Flag RegulationsRed Flag Regulations
Federal Trade Commission Regulations
designed to protect against identity theft
As a “creditor”, ADPH has “covered
transactions” with clients/patients
ADHP has a duty to be on the lookout for
certain red flags
48ADPH, 2010
49. Categories of “Red Flags”Categories of “Red Flags”
Alerts, notifications, or warnings from a
consumer reporting agency;
Suspicious documents;
Suspicious personally identifying
information, such as a suspicious address;
Unusual use of – or suspicious activity
relating to – a covered account; and
Notices from customers, victims, law
enforcement authorities, or businesses
about possible identity theft
49ADPH, 2010
50. See Also Policy DocumentsSee Also Policy Documents
98-07 Fax Policy
03-10 Notice of Privacy Practices (NOPP)
◦ Sub reviso
03-30 Vital Records Policies
04-02 Receipt of Legal Documents
05-16 HIPAA Security Policy/Manual
06-08 HIPAA Privacy Policy – Sub reviso
10-04 Contract Employee Handbook
Online ARIA Form
50ADPH, 2010
Substantiates proof of services
Provides continuity of care
Documentation must be objective facts, not opinions
If it ain’t wrote down . . .
it didn’t happen!
The way it is wrote down is the way it happened regardless of the way it happened
All patient information is strictly confidential. See Department policy: Contract Employee Handbook 10-04
It is the policy of the Alabama Department of Public Health (Department) to maintain strict confidentiality of personal information, written or unwritten, such as medical, financial and demographic information (e.g., addresses, social security numbers, telephone numbers, etc.) given to a Public Health employee in any discipline. Information can be released to individuals outside the Department’s system of care only upon the written consent of the individual client, or parent/guardian as applicable, or as otherwise provided by law. Employees of the Department who handle personal information are required to uphold the individual’s right to privacy. Individual employees may be held personally liable for any adverse consequences to the client or inappropriate release of information or breaches of confidentiality. Any proven violation of confidentiality will not be tolerated and is grounds for disciplinary action up to and including termination of employment and/or legal action. Furthermore, employees are protected from any discrimination, harassment or retaliation for the reporting of a violation of this policy.
PROCEDURES
Employees authorized to have access to confidential information must treat the information as Departmental property for which they are personally responsible. Confidential information may be discussed within the Department as minimally necessary.
Employees are prohibited from attempting to obtain confidential information for which they have not received authorization.
All suspected breaches of confidentiality must be reported immediately by telephone through the appropriate supervisory chain to the Privacy Officer in the Office of General Counsel.
The Privacy Officer in conjunction with the Office of Personnel and Staff Development will determine the appropriate response.
An ARIA Form regarding any suspected breach of confidentiality must be filed in.
Some Bad Scenarios.
Dr’s ofc. Clerk
Hospital nurse and HIV and boyfriend.
Bad scenarios equal bad liability. We’ll see more about penalties. Later.
Conditions for release of information
Prior written consent of patient, parent/guardian.
Subpoena in accordance with departmental policy
Otherwise provided by law
Notifiable disease information is not subject to inspection, subpoena, admission into evidence in any court except by the health department to compel the testing, examination, commitment or quarantine of an individual. Code of Ala. 1975, § 22-11A-2
Request for notifiable disease medical record should be forwarded to the legal office for resolution. Call 334.206.5209.
See Policy No. 2004-02 for specifics.
Disease Control has new guidelines on when and how information is released
The determination regarding release of epidemiologic documents will rest with the Bureau Chief in coordination and consultation with the Office of General Counsel.
The following information is not confidential, is considered to be public records, and may be released upon subpoena or other written request:
Final completed report written in blank, not identifying any persons whether sick patrons or employees in conventional form.
The name of businesses, establishments, restaurants involved in an investigation.
Aggregate statistical information (e.g., number of cases of reportable conditions/diseases and outbreaks of public health significance).
Any other public document such as press clippings and internet postings.
Regular environmental inspection reports and daycare reports made in the normal course of business such as periodic inspections and notices of violation.
The following information, whether retained as documents or by electronic means, is confidential and not considered to be public record but may be released pursuant to a lawful HIPAA compliant subpoena if personal health information (PHI) is redacted. PHI includes, but is not limited to name, address, telephone numbers, social security numbers, workplace.
epidemiologic interview sheets
any information provided by a medical provider, lab, school authority or other required reporting entity
work papers, notes and analyses
disclosure of actual numbers of cases, sample sizes or any other description or numeric value which has the potential to identify any person
Correspondence including on a particular investigation
Complaint generated environmental and other inspection reports
incomplete drafts of reports
Other document received privately
The following information is confidential but may be released only pursuant to a valid authorization from a patient/client: A notifiable disease record generated by the Department or in the possession of the Department (such as electronic laboratory reports or facsimile lab reports) that concerns the symptoms, condition or other information specific to an individual.
One patient’s authorization, however does not release other person’s names or information
Written consent not required for transfer of information from one county health department to another or to the state office, transfer of information to physicians, nurse practitioners or other health professionals who have a contract or other provider arrangements to provide care to our patients.
Some practitioners require consents to transfer out of abundance of caution, we do not.
A Valid authorization contains:
Description of the info to be released
Name or description of info receiver
Name of patient
Description if the use of the info
Expiration date or continuous
Right of revocation by pt.
Notice of possible re-disclosures
Signature of pt or representative
See CHR Form 6A and instructions
CHR 6A states that pt. is made aware that s/he is releasing STD/HIV/AIDS or drug and alcohol treatment or mental health records
This is NOT required if other providers’ releases meet the earlier criteria
Recent example, Montgomery County
The “medical record” or information regarding notifiable diseases cannot be released without the written consent of the patient or the parent/guardian.
Even with consent, the “medical record” should not include contact information. If your patient has an STD or HIV, record medical condition in your documentation. Do not write identifying information about how the patient contracted the STD/HIV.
If a minor is legally qualified to consent for services and in fact signs the “consent for treatment”, only the minor can sign to release the medical information regarding those services.
If the parent/guardian signs the consent for treatment, the parent/guardian or the minor may consent for the release of medical records.
Alabama statue provides that all information, including medical records, pertaining to a child must be equally available to both parents in all types of custody arrangements unless otherwise ordered by a court of law. Code of Ala, § 30-3-154
If the parent or guardian gave consent for medical services, then the parent or guardian of the minor is generally entitled to his or her child’s medical record. This information would also be available to the other parent.
If the child gave consent for services, neither parent may have access to the records without that child’s consent.
Background and History
The Health Insurance Portability and Accountability Act (HIPAA)1 was passed on August 21, 1996. Among other things, it included rules covering administrative simplification, including making healthcare delivery more efficient. Portability of medical coverage for pre-existing conditions was a key provision of the act as was defining the underwriting process for group medical coverage. It also provided standardization of electronic transmittal of billing and claims information. Congress recognized that standardizing the electronic means of paying and collecting claims data increased the potential for abuse of people's medical information. So a key part of the act also increased and standardized confidentiality and security of health data. HIPAA privacy regulations require that access to patient information be limited to only those authorized, and that only the information necessary for a task be available to them. And finally that personal health information must be protected and kept confidential.
Amended by “ARRA,” or “HITEC”, the American Recovery and Reinvestment Act of 2009 and it includes as one component the Health Information Technology for Economic and Clinical Health (HITECH) Act which authorizes $36 billion of funding to put in place an electronic health information technology (HIT) infrastructure.
How is PHI covered under HIPAA?
Boundaries
Setting limits on uses and disclosures
Fair information practices
Allowing individuals some level of access to their health data
Accountability
Making covered entities accountable for handling and abuses
Uses or disclosures of PHI require either
Written authorization or
Individual opportunities to object
Covered Entities (CEs) may use or disclose PHI without individual’s informed consent for exceptions specified in rule
What is covered?
“Protected Health Information” (PHI):
Individually-identifiable health information used or disclosed by a covered entity in any form, whether electronically, on paper, or orally
45 C.F.R. §160.103
You can use protected health information (PHI) without the patient’s authorization for:
Treatment - provision, coordination or management of health care and related services
Payment - includes the various activities of health care providers to obtain payment or be reimbursed for their services
Operations – administrative, financial, legal, and quality improvement activities that are necessary to support the core functions of treatment and payment
Where required by law
Who is covered?
Health care providers that conduct certain electronic transactions, i.e.. billing or hybrid entities (like ADPH)
Health care plans
Health care clearinghouses
45 C.F.R. §160.103
Business associates of CEs are bound by contract with the CE and new amendments to follow the same level of protection in the privacy rule and include:
Claims or data processors; billing companies;
Quality assurance providers; lawyers;
Utilization reviewers; accountants and
Financial service providers
45 C.F.R. §160.103
Business Associates of Covered Entities must now adhere to the Security Rule like covered entities
They must establish administrative, physical, and technical safeguards for Protected Health Information (PHI)
They must have their own policies and procedures to comply with the safeguards
Business Associates now have an affirmative duty to ensure they are only using or disclosing PHI in accordance with HIPAA.
Violation for knowing of a pattern of activity or practice by the CE that would constitute a violation and not reporting to HHS
Same types of penalties and criminal sanctions as CEs for HIPAA violations
Rat Fink provisions – they must turn in their principals.
Entities not covered:
Life insurance companies
Auto insurance companies
Workers’ compensation carriers
Employers
Others who acquire, use, and disclose vast quantities of health data, However, PHI cannot be bought and sold.
PHI does not include
Education records covered by FERPA
Employment records held by a covered entity in its role as employer
Non-identifiable health information
45 C.F.R. 160.103
HIPAA -What it Doesn’t Do
State laws stay in force
Only limited encryption of communications
No requirement of major facility restructuring
Incidental disclosures not totally eliminated
Reporting not changed
Relationships not changed
Under HIPAA You can use protected health information (PHI) without the patient’s authorization for: Treatment - provision, coordination or management of health care and related services; Payment - includes the various activities of health care providers to obtain payment or be reimbursed for their services; Operations – administrative, financial, legal, and quality improvement activities that are necessary to support the core functions of treatment and payment; and where required by law. See ADPH HIPAA Privacy Policy 06-008 which discusses the “Minimum Necessary” Concept, patient verification requirements, fax Confidentiality, the “HIPAA Log”, and breach sanctions.
The Policy needs updating, as it refers to policies subsumed in the Employee Handbook.
See CHR Manual and New Contract Employee Handbook 2010-04 as well.
The “Minimum Necessary Rule”
When using or disclosing PHI, a covered entity must make reasonable efforts to limit such information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request. Under HITEC, OIG is supposed to promulgate guidance on what they think the “minimum necessary” is – I can’t wait.
Permitted disclosures”
Disclosure of PHI to “public officials” to lessen the effects of the emergency
To law enforcement for their necessary activities. We’ll see more later
To national security and intelligence agencies
To Public Health authorities
To judicial authorities
To Researchers
To DHR for limited purposes
Whatever we disclose, Covered Entities and their Business Associates should not use or disclose PHI beyond what is reasonably necessary for the purpose of the use or disclosure
The law enforcement purposes for which PHI may be released without authorization are:
Pursuant to process and as otherwise required by law. 45 CFR §164.512(f)(1)
For identification and location purposes (limited information only). 45 CFR §164.512(f)(2)
In response to request for such information about an individual who is or is suspected to be a victim of a crime. 45 CFR §164.512(f)(3)
For purpose of alerting law enforcement official about a suspicious death. 45 CFR §164.512(f)(4)
For purpose of reporting evidence of criminal conduct occurring on premises of covered entity. 45 CFR §164.512(f)(5).
An provider who is providing care in response to a medical emergency my alert law enforcement regarding information pertaining to crime. 45 CFR §164.512(f)
(1) May use or disclose PHI if the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat; or
Is necessary for law enforcement authorities to identify or apprehend an individual
CEs may disclose PHI to authorized federal officials for the conduct of intelligence, counter-intelligence, and other national security activities.
If it is national security, we disclose any information they need. It is not subject to the law enforcement limitations.
Disclosures to Public Health
The public health exception allows a covered entity to disclose PHI without individual authorization to a “public health authority that is authorized by law to collect and receive such information for the purpose of preventing and … controlling disease, injury, or disability, including… reporting of disease… and the conduct of public health surveillance….”
Examples of specific public health-based exceptions include disclosures About victims of abuse, neglect, or domestic violence To prevent serious threats to persons or the public.
Information on decedents may be released to
Law enforcement
Transporting emergency medical personnel
Coroners and their personnel
Mortuary personnel
Bureau of Health Statistics
But, just because they are dead does not remove the general protection of the record.
The rule applies to electronic protected health information (EPHI), which is individually identifiable health information (IIHI) in electronic form. IIHI relates to 1) an individual's past, present, or future physical or mental health or condition, 2) an individual's provision of health care, or 3) past, present, or future payment for provision of health care to an individual. The primary objective of the Security Rule is to protect the confidentiality, integrity, and availability of EPHI when it is stored, maintained, or transmitted.
CEs must maintain all documentation (e.g., policies, procedures) required by the Security Rule for a period of six years from the date of its creation or the date when it last was in effect, whichever is later. Such documentation must be made available to the workforce members responsible for implementing the policies and procedures. Additionally, CEs must periodically review such documentation and revise and update it as needed to ensure the confidentiality, integrity, and availability of EPHI.
HIPAA Security Rule
HIPAA requires security of the premises, i.e., door locks. Watch out for strange people who don’t need to be there.
HIPAA also requires security of the electronic records (computer security).
Information should be password protected.
Don’t share your password with anyone except IT staff.
Put computers where outsiders can’t see them.
Screen savers must be used and should be on a short delay.
Always lock out computer when you walk away from it.
Never leave anyone in the room when you leave without the lockout.
Be careful about your computer, don’t get it infected with a virus or spy ware. Don’t visit strange websites, don’t download off the internet. Run an anti virus program frequently if you don’t have IT staff to do this.
If information stays within the facility need not be encrypted. But if you take it outside either sending an E-mail or on a laptop, disk or thumb drive, such info should be encrypted using an encryption program.
HIPAA requires security of the paper. It should be locked when not needed and not left lying around.
Name badges might be a good idea to help tell who is supposed to be there. ADPH requires them, but HIPAA does not per se.
Only use Department furnished equipment and software. (Security Manual, lILC. Workstation and State Electronic Equipment Use Policy)
2. CSC/Tech Support will purchase and install all network-connected devices. (Security Manual, lIl.C. Workstation and State Electronic Equipment Use Policy)
3. All personal computers and laptops will have password protection and will have an automatic screensaver, which will activate after 15 minutes or less of unattended use. (Security Manual, lILC. Workstation and State Electronic Equipment Use Policy)
4. CSC/Tech Support will install software updates for security and antivirus weekly onpersonal computers. (Security Manual, II.F.2 Protection from Malicious Software)
5. Users will connect laptops to the network at least once a month, log into the master database, and receive updates for security and antivirus software. (Security Manual, III.D. Workstation Security Policy)
6. Users will back up critical data or e-PHI stored on their personal computer or laptop to their assigned folder on the server. Users do not need to back up data created and stored in an enterprise information system such as PHALCON, McKesson, or ACORN, because CSC/Tech Support automatically performs backups of these systems. (Security Manual, lILE.4. Data Backup and Storage)
7. The Department will require password changes every sixty days. Users will create a new password when prompted and will keep passwords secured. (Security Manual, ILFA. Password Management)
8. Users will not use equipment for unlawful activities, distributing pornography, gambling, offensivelharassing messages and images. Supervisors will be responsiblefor monitoring employees' usage through observation and will handle violations in accordance with Department disciplinary procedures. (Security Manual, IlLC. Workstation and State Electronic Equipment Use Policy)
9. Users should report suspected security violations, virus attacks, cyber criminal attacks, or physical compromises to CSC Support Desk immediately. (Il.G.l Security Incident Response and Reporting)
10. When an employee begins work and requires a computer and access to information systems, the bureau/office/local administrator will notifY the CSC Support Desk. (Security Manual, Il.E.2. Access Authorization)
11. When an employee leaves the Department or transfers to a new office, the bureau/office/local administrator will notifY the CSC Support Desk and complete a Computer Access Removal Form. (Security Manual, ILE.2. Access Authorization)
12. When salvaging or transferring computer/electronic equipment, the Department must remove all sensitive or e-PHI from the device. To do that, the officelbureau will salvage the item using the Department equipment salvage procedures. CSC will properly destroy the memory storage components in the equipment. (Security Manual, ILE.l. Device and Media Disposal and III.E.2. Media Re-use)
13. ADPH facilities must be limited to authorized users and safeguarded from unauthorized access, tampering, and theft. Each officelbureau will have procedures for physical security to include locking, key control, electronic device and media protection, employee identification badges, and visitor logs. (IlLB.2. Facility Security Plan and Security Manual, IlLB.3. Physical Access Control and Validation Procedures)
14. Employees will wear ADPH identification badges. (Security Manual, IlLB.3. Physical Access Control and Validation Procedures)
Patients may ask for a listing of disclosures we have made of their PHI for up to six (6) years prior to the request in paper or electronic form (not including disclosures made prior to April 14, 2003).
The following disclosures are NOT required to be accounted for:
Treatment, Payment, Healthcare Operations (TPO)
Disclosures authorized by the patient or authorized representative
Disclosures to the patient or persons involved with their care
Other disclosures which are not required to be accounted for:
National security or intelligence purposes
Correctional institutions or law enforcement officials having lawful custody of an inmate
Incidental disclosures
Limited Data Sets used for research purposes
An accounting is required for disclosures of which the patient may not be aware, e.g., those which are required by law (such as abuse or communicable diseases) or accidental disclosures. Accidental disclosures should also be reported to your Privacy Officer.
If we have it in electronic form, we may be required to give it in electronic form.
If we have it in electronic form, we may be required to give it in electronic form.
The HIPAA Log is a single file which relates to pt. files. It is kept with medical records. You should document the following “non-routine” disclosures.
The information that must be documented for each disclosure is:
the date of the disclosure;
the name of the entity or person who received the PHI and, if known, the address and contact information;
a brief description of the PHI disclosed (e.g., records for visit on June 7, 2003, all radiology reports related to broken wrist, etc.); and
a brief statement of the purpose of the disclosure that reasonably informs the patient of the basis for the disclosure.
Required Logged Items
Unauthorized releases on the AIR Form, soon to be the ARI/A E-form
Releases required by law
Releases based upon subpoena
Releases to law enforcement for ID
Requests to limit releases
Requests to amend or correct PHI
Requests by the patient for accounting
Reports about victims of abuse, neglect, or domestic violence
DISCLOSURES NOT REQUIRED TO BE LOGGED:
made to carry out treatment, payment, or healthcare operations;made to the patient;
made pursuant to a valid and effective authorization (one that complies with the requirements of state law as well as with the HIPAA Privacy Regulations) signed by the patient;
made to persons involved in the patient's care or other notification and location purposes;to federal officials for national security or intelligence purposes;
to a correctional institution or law enforcement official that has custody of a patient; that are part of a limited data set; andto a health oversight or law enforcement official
When complaints or notice of breaches are received by privacy officer, the agency has a duty to:
Investigate - Mitigate, Resolve, Respond, Document activities relating to the investigation, mitigation and response in HIPAA Log.
Notification – we might have to notify the patient that his or her information has been compromised.
Reporting - No report to HHS is required, though the process is subject to compliance audit.
Remediation -The agency’s response may require amendment of privacy policies and procedures.
Discipline - Response may require employee sanctions for employee breaches. HHS will look on an audit to see if this was followed up. See 45 CFR § 164.530(e-g). ADPH defines this in Policy 03-03.
Criminal Penalties - A person’s knowing use or disclosure of PHI in violation of HIPAA may result in criminal penalties of up to $50,000 in fines and one year in prison. Uses or disclosures made under false pretenses may result in criminal penalties of up to $100,000 in fines and 5 years in prison. HIPAA Privacy Rule violations committed with intent to sell, transfer or use PHI for commercial or personal gain or malicious harm are punishable by a fine not to exceed $250,000 and/or 10 years in prison. A recent case in the Northwest has a hospital employee in big trouble.
Civil Causes of Action - A violation of the HIPAA Privacy Rule creates a civil cause of action It also may create a civil cause of action.
Furthermore, a failure to follow HIPAA privacy procedures may become the “standard of care” in common law breach of privacy actions under state law.
Breach may subject employees and the CE:
To criminal penalties (up to $250,000); you are not covered by the Fund.
To HHS civil penalties or lawsuits
To adverse employment action, IE.,
The HIPAA program and certain other similar programs are under the management of the Risk Management Committee composed of the Privacy Officer, Security Officer, Code Specialist and other senior personnel
Committee proposes HIPAA policy changes
Committee receives and processes all accident/incident reports including possible HIPAA breaches
The Committee oversees Red Flags instances
Federal Trade Commission Regulations designed to protect against identity theft
As a “creditor”, ADPH has “covered transactions” with clients/patients
ADHP has a duty to be on the lookout for certain red flags
Develop a written program that identifies and detects “red flags” of identity theft
Describe appropriate responses that would prevent and mitigate the crime and detail a plan to update the program.
Be managed by the Board of Directors or senior employees
Include appropriate staff training, and
Provide for oversight of any service providers.
Categories of Red Flags:
Alerts, notifications, or warnings from a consumer reporting agency;
Suspicious documents;
Suspicious personally identifying information, such as a suspicious address;
Unusual use of – or suspicious activity relating to – a covered account; and
Notices from customers, victims, law enforcement authorities, or businesses about possible identity theft
See also:
98-07 Fax Policy
03-10 Notice of Privacy Practices (NOPP)
Sub reviso
03-30 Vital Records Policies
04-02 Receipt of Legal Documents
05-16 HIPAA Security Policy/Manual
06-08 HIPAA Privacy Policy - Sub reviso
10-04 Contract Employee Handbook
ARIA E-Form