Health Information Management Technology: An Applied Approach Chapter 8 Health Law

Basic Legal Concepts How are laws classified? Sources of law: Public law Private law Sources of law: Constitutions Statutes Administrative law Judicial decisions

US Legal System How are legal disputes handled? US court system District courts Courts of appeals Supreme Court State court systems Trial courts Appellate courts State supreme court

US Legal System How are legal disputes handled? (continued) Dispute resolution Arbitration Mediation

US Legal Process Bringing a lawsuit Plaintiff(s): summons and complaint Defendant(s) Counterclaim Joinder Crossclaim

US Legal Process Discovery period Trial Discovery tools: Deposition Subpoena Subpoena ad testificandum Subpoena duces tecum Trial Post-trial: appeal and collection of the judgment

Medical Malpractice Professional liability causes of action: Breach of contract Tort Intentional tort Negligence Medical malpractice refers to professional liability of healthcare providers

Physician-Patient Relationship Physician-patient relationship is based on a contract Express Implied Cause of action is breach of contract

Medical Malpractice Stemming From Negligence Torts Types of negligence Nonfeasance Malfeasance Misfeasance Elements of negligence Duty to meet a standard of care Breach Causation Injury or Harm

Patient Rights and Healthcare Decisions Consent General consent Informed consent Advance directives Durable power of attorney for healthcare decisions Living will Do-not-resuscitate order (DNR)

Legal Issues in Health Information Management Compilation and maintenance of health records Ownership and control of health records, including use and disclosure Defining the legal health record

Compilation and Maintenance of the Health Record What requirements affect the form and content of the health record? Statutory laws such as state and federal statutes Regulatory laws such as Medicare Standards by accrediting bodies such as Joint Commission Third-party payer requirements Failure to comply will likely result in some type of penalty

Compilation and Maintenance of the Health Record Guidelines for complying with requirements: Policies and procedures should comply with all laws and standards Health records should be systematically organized Only authorized persons should document in the health record Policies should specify who can receive and transcribe verbal orders

Compilation and Maintenance of the Health Record Guidelines for complying with requirements (continued): Health record entries should be documented at the time service is provided Authors of all entries should be clearly identified Only approved abbreviations and symbols should be used in the health record Prohibited abbreviations All entries should be permanent

Compilation and Maintenance of the Health Record Guidelines for complying with requirements (continued): Policies and procedures for error correction should be in place Policies and procedures for addenda to the record should be in place

Ownership and Control of the Health Record The health record is owned by the organization that created and maintains it Control of the record includes its use and disclosure Individuals have a right to access their own information, with some exceptions

State Laws Involving Use and Disclosure Privileged communication statutes Protect information shared as part of the physician-patient relationship State laws may specifically provide patients with the right of access (in compliance with HIPAA) State laws may require disclosure without patient authorization Examples: vital statistics; public safety

Health Information in Judicial Proceedings Health records are usually admissible in litigation or judicial proceedings Authentication affirms a record’s legitimacy

Legal Health Record Is the official business record created by or for a healthcare organization Is the record that will be disclosed upon a valid request by third parties Must be distinguished from Electronic Health Records (EHRs), Designated Record Set (DRS), and Personal Health Records (PHRs)

Legal Health Record Organizations should inventory all documents and data that could comprise the legal health record, considering all locations Electronic documents that may be part of the legal health record include: E-mails Diagnostic images and electronic fetal monitoring strips Digital photography and video

Retention of Health Records When developing retention policies, consider: Applicable federal and state statutes and regulations Statutes of limitation for malpractice and other claims Accreditation standards Operational needs of the organization

AHIMA Retention Guidelines Ensure that patient information is available to meet patient care needs, legal requirements, research, education, and other legitimate uses Develop a retention schedule that meets needs of patients, physicians, researchers, and other legitimate users and complies with all regulations and laws

AHIMA Retention Guidelines (continued) Develop guidelines that specify what information should be retained, the retention period, and the storage medium Clearly specify the destruction method to be used for each medium

Record Destruction Must take into account Applicable federal and state statutes and regulations Accreditation standards Pending or ongoing litigation, investigations, or audits Storage capabilities Cost

Record Destruction Destruction may be performed by the organization that owns the records, or it may be outsourced Documentation: Certificate of destruction or manner of destruction List of all destroyed records Agreement that assures protection of the information

Record Destruction Considerations for Electronic Information The information must be actually destroyed rather than merely deleting the pathway to access it The likelihood of duplicate records remaining in circulation is greater with electronic records

Medical Staff Appointments and Privileges Facility is responsible to establish policies and procedures to ensure reasonable care in medical staff appointments Credentialing for appointment and reappointment Clinical privileges to define the set of services a physician is permitted to perform National Practitioner Data Bank formed by the Health Care Quality Improvement Act of 1986

Licensure, Certification, and Accreditation Licensure: allows an individual to practice, or an organization to operate Certification Individuals: designation of competence by a private organization Healthcare organizations: designation by US Department of Health and Human Services that its Conditions of Participation have been met Accreditation: designation of excellence by a private entity