1. To HIPAA and BeyondTo HIPAA and Beyond
The Law of ConfidentialityThe Law of Confidentiality
and Securityand Security
Public Health Area IIPublic Health Area II
December, 2010December, 2010
By John R.Wible, General Counsel
Alabama Department of Public Health
1ADPH, 2010
3. The “Golden Rule ofThe “Golden Rule of
Documentation”Documentation”
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. Confidentiality-Confidentiality-
Access to Records GenerallyAccess to Records Generally
All patient information is strictly
confidential
◦ See Employee Handbook 10-02
Some Bad Scenarios
Bad scenarios equal bad liability
4ADPH, 2010
5. Conditions forConditions for
Release of InformationRelease of Information
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 RecordsTB/STD/DC Records
Special ConfidentialitySpecial Confidentiality
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. What Makes a ValidWhat Makes a Valid
Authorization?Authorization?
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. Note Concerning CertainNote Concerning Certain
InformationInformation
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
ADPH, 2010 12
13. Release of ContactRelease of Contact
Information – Don’t Do It!Information – Don’t Do It!
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. Confidentiality – Access toConfidentiality – Access to
Medical Records of MinorsMedical Records of Minors
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. Access to Medical Records ofAccess to Medical Records of
Minors – Rights of the ParentsMinors – Rights of the Parents
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 – In BriefHIPAA – In Brief
HIPAA stands for The Health Insurance
Portability and Accountability Act (1996)
Addresses privacy and security of health data
Includes verbal, written, or electronic data
Privacy Rule, (2003), includes both paper & e-PHI
Security Rule, (2003), includes only e-PHI
HHS makes the rules
Amended (2009) by “the Stimulus Package –
ARRA (HITEC)
17. PHI – What is it?PHI – What is it?
Patient name
Patient address
Patient phone number
Patient date of birth
Patient social security number, Medicaid
number, etc
Diagnosis
Treatment information
Financial information
18. The Privacy Rule:The Privacy Rule:
What and Who IsWhat and Who Is
Covered?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”
18ADPH, 2010
19. Releases without WrittenReleases without Written
ConsentConsent
Treatment
Payment
Operations
Where required by law
19ADPH, 2010
20. 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
20ADPH, 2010
21. 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”
21ADPH, 2010
22. 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
22ADPH, 2010
23. 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
23ADPH, 2010
24. 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
24ADPH, 2010
25. HIPAA and ADPH PrivacyHIPAA and ADPH Privacy
25
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 and Employee Handbook
26. 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
26ADPH, 2010
27. Permitted DisclosuresPermitted Disclosures
“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
27ADPH, 2010
28. Disclosure to PoliceDisclosure to Police
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
28ADPH, 2010
29. Disclosure to NationalDisclosure to National
Security AgenciesSecurity Agencies
CEs may disclose PHI to authorized federal
officials for the conduct of intelligence,
counter-intelligence, and other national
security activities
29ADPH, 2010
30. 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….”
30ADPH, 2010
31. 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
31ADPH, 2010
32. Information on DecedentsInformation on Decedents
May be released to:
Law enforcement
Transporting emergency medical
personnel
Coroners and their personnel
Mortuary personnel
Bureau of Health Statistics
32ADPH, 2010
33. Maintenance of DocumentationMaintenance of Documentation
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
33ADPH, 2010
34. HIPAA - The Security RuleHIPAA - The Security Rule
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
34ADPH, 2010
35. What about e-PHI?What about e-PHI?
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
36. Security of the PremisesSecurity of the Premises
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
36ADPH, 2010
37. Building SecurityBuilding Security
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
Keep back doors locked or
monitored during business hours
Keep server rooms locked
Keep PHI storage areas locked when unattended
38. Paper SecurityPaper Security
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
◦ Remove faxes/copies promptly
File Cabinets
◦ Keep locked when unattended
◦ Locate in secure area
◦ Limit access
Shred it!
39. Use of Department ComputersUse of Department Computers
Use ADPH furnished equipment/software
CSC/Tech Support will purchase and install all
network-connected devices
Use strong password protection & disclaimer
◦ Don’t give out your password
CSC/Tech Support will install updates
Connect laptops to the network once a month
for audit
Back up critical data
◦ See Policy 2005-016 and Security Manual
39ADPH, 2010
40. 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
Appropriately salvage computers
Limit access to Department workspace
Be careful with portable storage devices
40ADPH, 2010
41. Email and Internet SecurityEmail and Internet Security
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
42. Laptop SecurityLaptop Security
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
43. Patient AccountingPatient Accounting
Patients may ask for listing of disclosures
of their PHI up to six (6) years prior in
paper or electronic 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
43ADPH, 2010
44. 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
44ADPH, 2010
45. HIPAA LogHIPAA Log
45
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
46. 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
46ADPH, 2010
47. DisclosuresDisclosures NotNot LoggedLogged
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
47ADPH, 2010
48. HIPAA BreachesHIPAA Breaches
When there is a breach of phi or e-PHI
You have a duty to report on an ARIA
Call if it is serious!
ADPH as a duty to:
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
48
“Teton Dam
Breach”
ADPH, 2010
49. 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.,
49ADPH, 2010
50. 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
50ADPH, 2010
51. 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
51ADPH, 2010
52. 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
52ADPH, 2010
53. See Also Policy DocumentsSee Also Policy Documents
98-07 Fax Policy
03-10 Notice of Privacy Practices (NOPP)
◦ Under 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
Online ARIA Form
53ADPH, 2010
54. For A Copy of the PresentationFor A Copy of the Presentation
See “HIPAA For Area 2” a
download on Slideshare 7
http://www.slideshare.net/jwible
54
7Slideshare
ADPH, 2011
Notas del editor
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:
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 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