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- 1. To HIPAA and Beyond The Law of Confidentiality and Security December, 2010 By John R. Wible, General Counsel Alabama Department of Public Health ADPH, 2010
Hinweis der Redaktion
- 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: Employee Handbook 10-02 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 Note: with a signed release, we can release any records, even STD/HIV/AIDS with certain exceptions
- 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
- 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.
- HIPAA stands for The Health Insurance Portability and Accountability Act 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.
- Patient name Patient address Patient phone number Patient date of birth Patient social security number, Medicaid number, etc Diagnosis Treatment information Financial information
- 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 ADPH is a covered entity. 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
- 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
- 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 Employee Handbook 2010-02 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.
- 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.
- 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.
- Same as PHI, but created, received, or maintained electronically. Does not include telephone calls, copy machines, fax machines, most voice mail. Does not include de-identified information.
- 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.
- Post the Department’s Notice of Privacy Practices where clients can see it Maintain visitor sign-in logs and have visitors sign in and out (this includes repair persons) Use ADPH and Visitor ID badges always when at work. Keep back doors locked or monitored during business hours Keep server rooms locked Keep PHI storage areas locked when unattended
- Clean Desk Keep patient records covered or in folders Lock records up at end of day or when away from desk Fax/Copy Machines Put fax & copiers in secure area away from traffic flow Remove faxes/copies promptly File Cabinets Keep locked when unattended Locate in secure area Limit access Shred it!
- Only use Department furnished equipment and software. (Security Manual, lILC. Workstation and State Electronic Equipment Use Policy) CSC/Tech Support will purchase and install all network-connected devices. (Security Manual, lIl.C. Workstation and State Electronic Equipment Use Policy) 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) CSC/Tech Support will install software updates for security and antivirus weekly onpersonal computers. (Security Manual, II.F.2 Protection from Malicious Software) 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) 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)
- 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) Users will not use equipment for unlawful activities, distributing pornography, gambling, offensive/harassing 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) 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) Contact the help desk at 334-206-5268 to report. 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) 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) 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) 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) Be careful with portable storage devices
- Safe to email within ADPH Notes system. Email to outside sources should encrypt protected information. Email Do not open email from an unknown source; especially unknown attachments Verify email recipients; make sure email is going to intended recipient Always encrypt email and attachments containing protected information Read security reminders Avoid risky internet sites
- Keep laptop out of view when traveling Do not leave in hot vehicle for long time Do not check with luggage when flying Password protect Set screen saver to require password Log on to network once a month to update virus protection software Encrypt protected information
- 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: T reatment, P ayment, Healthcare O perations (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; and to a health oversight or law enforcement official
- When there is a breach of phi or e-PHI , You have a duty to report on an ARIA Call if it is serious! 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 revision 03-30 Vital Records Policies 04-02 Receipt of Legal Documents 05-16 HIPAA Security Policy/Manual 06-08 HIPAA Privacy Policy 10-04 Contract Employee Handbook ARIA E-Form