HEALTH INSURANCE PORTABILITY AND ACCOUNTIBILITY ACT PAUL D. FRIEDMAN, M.A., J.D. 300 W. Clarendon, Ste. 400 Phoenix, Arizona (602) HIPAA (not HIPPO) ©Copyright 2005 Paul D. Friedman, M.A., J.D.

WHY DID THE HIPPO CROSS THE ROAD? ©Copyright 2005 Paul D. Friedman, M.A., J.D. BECAUSE HE HEARD THERE WAS GOING TO BE A PRESENTATION ON HIPAA ON HIS SIDE OF THE ROAD. Is it too late to leave?

THE PURPOSE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 HIPAA amended the Employee Retirement Income Security Act (ERISA), to provide new rights and protections for participants and beneficiaries in group health plans.. ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HIPAA OVERVIEW HIPAA Health Insurance Portability and Accountability Act of 1996 HIPAA Health Insurance Portability and Accountability Act of 1996 Transactions Code Sets Insurance Portability Administrative Simplification Fraud and Abuse Medical Liability Reform Title I Title II Title III Title IV Title V Privacy Security EDI Tax Related Health Provision Group Health Plan Requirements Revenue Off-sets Identifiers ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HIPAA PORTABILITY Limits Exclusions For Pre-Existing Conditions Prohibits Discrimination Against employees And Dependents Based Upon Health Status ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HIPAA PORTABILITY Health Insurance Must Include Coverage For Pre-Existing Conditions As Long As There Has Not Been A Break In Coverage For 63 Days Or More ©Copyright 2005 Paul D. Friedman, M.A., J.D.

Administrative Simplification [Accountability] Insurance Reform [Portability] Health Insurance Portability and Accountability Act (HIPAA) HIPAA Transactions, Code Sets, & Identifiers PRIVACY Compliance Date: 4/14/2003 Security ©Copyright 2005 Paul D. Friedman, M.A., J.D.

PURPOSE OF THE HIPAA PRIVACY RULE Protect And Enhance The Rights Of Consumers By:  Providing Access To Their Health Information  Controlling Inappropriate Use Of That Information Improve Quality of Health Care Improve Efficiency And Effectiveness Of Health Care Delivery By Providing A National Framework For Privacy Protection ©Copyright 2005 Paul D. Friedman, M.A., J.D.

PRIVACY How Protected Information in Either Written Or Verbal Form Is:  Stored  Transmitted  Shared  Discarded  Disclosed ©Copyright 2005 Paul D. Friedman, M.A., J.D.

PRIVACY: PENALTIES $100 for each violation Maximum of $25,000 per year per specific provision NON-COMPLIANCE WRONGFUL DISCLOSURE FALSE PRETENSES ©Copyright 2005 Paul D. Friedman, M.A., J.D. $50,000 And/Or Up To 1 Year In Prison $250,000 And/Or Up To 10 Years In Prison

 Notify Patient Of Their Privacy Rights  Patient Access To Their Medical Records  Patient Consent Before Releasing Information INTRODUCTON TO PRIVACY The Privacy Rule Provides: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

COMPLIANCE TO PRIVACY  Provide patients with a written explanation of how the organization may use and disclose their health information  Provide patients with the ability to get copies of their medical information and request amendments  Obtain patient consent before sharing medical information Compliance Involves: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

PERMISSION  HIPAA Allows For But Does Not Mandate Consent For Disclosure of Personal Health Information For Treatment, Payment And Health Care Operations CONSENT AUTHORIZATION  Written Authorization Is Mandated Unless There Is A Specific Exclusion ©Copyright 2005 Paul D. Friedman, M.A., J.D.

AUTHORIZATION EXCEPTIONS  Treatment, Payment or Health Care Operations  Directories At Facilities  Family And Friends  Marketing  Fundraising  Averting a Serious Threat To Health Or Safety  Health Oversight Activities  Judicial And Administrative Proceedings  Law Enforcement  Public Health Activities  Required By Law  Research  Victims of Abuse, Neglect Or Domestic Violence Authorizations Are Mandated Except: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

AUTHORIZATION ELEMENTS  Identity Of The Party Authorizing The Disclosure  Signature Of The Party Authorizing The Disclosure  Agent May Sign If The Designation Is Present  Parents Generally Can Sign On Behalf Of Minors Unless  The Minor Consents And Parental Consent Is Not Mandated Under State Law  The Court Appoints A Guardian Or Allows Assent  Parent Agrees That It The Child Has A Confidential Relationship  Identity Of The Party Receiving The Disclosure  Identity Of The Party Providing The Disclosure The Core Elements Of A Valid Authorization: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

AUTHORIZATION ELEMENTS  Description Of Information To Be Disclosed  Purpose For Disclosure  Expiration Date Or Event  Required Statements  Right To Revoke The Authorization  Treatment Not Conditioned On Signature  Redisclosure May Occur  Plain Language  Copy Of Signed Authorization Provided To Individual Core Elements Of A Valid Authorization (cont): ©Copyright 2005 Paul D. Friedman, M.A., J.D.

AUTHORIZATION ELEMENTS  Copy Is Valid As An Original  May Be Prepared By A Third Party  No Required Format  HIPAA Federally Preempts State Laws Unless  State Law Prevents Fraud And Abuse  Ensures Appropriate State Insurance Regulation  Necessary For State To Report Health Care Delivery Costs  Compelling Need Related To Public Health, Safety Or Welfare  Regulation Of Controlled Substances  State Law Is More Stringent Than HIPAA  Reporting of Disease, Injury, Child Abuse, Birth Or Death  Health Plan Management Audits Other Considerations For Authorizations: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

DISCLOSURE WITHOUT AUTHORIZATION  Providers Own Treatment, Payment Or Health Care Operations  Another Provider If  Conducting Quality Assessment  Case Management And Care Coordination  Informing Patient Of Treatment Alternatives  Threat To Health Or Safety & Complies With Legal Duties  Law Enforcement  Public Health Activities  Victims Of Abuse, Neglect Or Domestic Violence  Lawful Oversight Activities  Judicial & Administrative Proceedings Authorization Is Not Mandated: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

DISCLOSURE WITHOUT AUTHORIZATION  Disclosure Must Be Made To A Law Enforcement Officer  Must Be Required By Law  Mandatory Reportable Physical Injuries (I.e. gunshot wound)  Court Order  Administrative Request  Relevant & Material To A Legitimate Law Enforcement Inquiry  Request Is Specific & Limited In Scope To Purpose Which Is Sought  Redacted Information Would Not Be Useful  Victims Of Abuse, Neglect Or Domestic Violence Law Enforcement Disclosures: ©Copyright 2005 Paul D. Friedman, M.A., J.D.

DISCLOSURE WITHOUT AUTHORIZATION  Location Of A Suspect, Fugitive, Material Witness Or Missing Person  Name & Address  Date & Place Of Birth  Social Security Number  Blood Type & Rh Factor  Type Of Injury  Date & Time Of Treatment  Date & Time Of Death (if applicable)  Physical Characteristics  Height, Weight, Gender, Race Hair Color, Eye Color, Facial Hair, Scars and Tattoos Law Enforcement Disclosures (continued): ©Copyright 2005 Paul D. Friedman, M.A., J.D.

DISCLOSURE WITHOUT AUTHORIZATION  Patient Suspected To Be A Victim Of A Crime Who  Agrees To Disclosure  Cannot Consent Due To Incapacity Or Emergency Circumstance  Provider Determines It Is In The Best Interests Of The Patient  Information Is Needed To Determine If a Law Was Violated  Adverse To Law Enforcement Activity To Wait For Permission  Death If It Is Suspected Was A Result Of Criminal Activity  Emergency Situation  Commission & Nature Of A Crime  Location Of A Crime  Identity, Description & Location Of Perpetrator Of Crime Law Enforcement Disclosures (continued): ©Copyright 2005 Paul D. Friedman, M.A., J.D.

DISCLOSURE WITHOUT AUTHORIZATION  Patient Is Present And Agrees Or Objects  Patient Is Incapacitated  Provider Determines That Patient Would Not Object To Surrogate  Can Be For Limited Information  Can Be Retracted At Any Time Friends & Relatives ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HYPOTHETICAL NUMBER ONE ©Copyright 2005 Paul D. Friedman, M.A., J.D. I Just Hate Hippotheticals!

HYPOTHETICAL NUMBER ONE You are taking care of a well-known actress who is in intensive care after a drug overdose. She is experiencing severe renal failure. A nurse on another floor asks you if you are aware that this actress is on your unit after the overdose. What do you say? ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HYPOTHETICAL NUMBER ONE Ask yourself the following questions: 1)Does your friend need to know if the patient is being treated in your facility? 2) Does your friend need to know if the patient is being treated in intensive care? 3)Does your friend need to know if the patient overdosed to do his [the nurse’s] job? 4)If you were the patient, would you want this person [the inquiring nurse] to know about your treatment? ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HYPOTHETICAL NUMBER ONE HIPAA forbids you from sharing this information unless it is necessary for the treatment of this patient. HIPAA forbids the other nurse from accessing information unless it is necessary for his treatment of the patient. ©Copyright 2005 Paul D. Friedman, M.A., J.D.

HYPOTHETICAL NUMBER ONE ©Copyright 2005 Paul D. Friedman, M.A., J.D. That Was Pretty Easy. I Kind of Like This Guy!

HYPOTHETICAL NUMBER TWO ©Copyright 2005 Paul D. Friedman, M.A., J.D. I Spoke Too Soon!

HYPOTHETICAL NUMBER TWO ©Copyright 2005 Paul D. Friedman, M.A., J.D. A family member of you patient calls your unit and asks you questions about the status of the patient. What do you say?

HYPOTHETICAL NUMBER TWO ©Copyright 2005 Paul D. Friedman, M.A., J.D. Ask yourself the following questions: 1)Did The Patient Give You Authority To Speak To Family Members? 2) If So, Have You Been Authorized To Release The Information You Are Asked To Disclose?

HIPAA RESOURCES     lhttp:// lhttp:// ©Copyright 2005 Paul D. Friedman, M.A., J.D.

THE END OF HIPAA ©Copyright 2005 Paul D. Friedman, M.A., J.D. Whew, Now I can come back. That Wasn’t So Bad!