Posts Tagged ‘health care’

Privacy and Medical Records: A Few Words About HIPAA

JUNE 3, 2013 VOLUME 20 NUMBER 22
A delightful, intelligent and witty client of ours (nearly all our clients are delightful, intelligent and witty) visited her podiatrist’s office. Our client has always battled problems with her weight, so when an assistant insisted that she step onto an office scale she declined. I’m pretty sure, she said, that my podiatrist doesn’t really need to know my weight, and I just don’t like scales. The podiatrist’s assistant smiled understandingly but insisted. “I’m sorry,” she said, “but we have to take your weight on each visit. It’s required by HIPAA.”

Experienced elder law attorneys and people working in the medical field will likely have laughed out loud at that story. It is a good illustration of just how misunderstood HIPAA really is.

HIPAA, for those less familiar with acronym-speak, is the Health Insurance Portability and Accountability Act of 1996. As the name of the law indicates, it has been around for nearly twenty years, though it came to more prominence in 2003, when the first round of regulations implementing the law became effective. HIPAA has since been blamed for all manner of silliness — including the mandatory weigh-in at our client’s podiatry office, the “please stand behind this line” sign at your local pharmacy counter, and (our personal favorite) the sign-in sheet at your doctor’s office that variously requires either your first (only) or last (only) name — apparently on the theory that your privacy is better protected when the receptionist shouts out “Mr. Johnson?” or, in another office, “Dave?”

What does HIPAA actually provide? It mandates that your health care providers — pretty much all of them — keep your records and data confidential. It is an attempt to prevent sale and recirculation of identifiable data. You would probably not want your name added to a list of people diagnosed with a given condition, and then sold to an insurance company, or a medical supplier. HIPAA is on your side.

But here’s the more difficult part. HIPAA doesn’t mandate that doctor’s offices treat you like (or actually issue you) a number to hide your name. It doesn’t require that you weigh in at your podiatrist’s. It doesn’t prevent the hospital where you are being treated from communicating with your doctor’s office or your pharmacy. It also doesn’t give you the right to sue your doctor, hospital or pharmacist for violating your privacy.

What does get prosecuted under HIPAA? Not much. Last year, according to the US Department of Health and Human Services, there were about 10,000 HIPAA complaints received. About two-thirds of those were dealt with summarily, and another large segment are deemed to involve no violation at all. That leaves about a quarter of all cases in which some sort of corrective action is mandated — which does not mean fines, or criminal prosecution, or even public disclosure of offending offices or providers.

From time to time there are serious fines levied. Just last month, for instance, Idaho State University paid a $400,000 settlement for disabling its firewall protection on servers housing patient data on almost 20,000 individuals cared for in its clinics. And just a few months earlier, Hospice of Northern Idaho agreed to pay $50,000 to resolve violations centering on the theft of an unencrypted laptop containing records of 441 hospice patients. The Hospice of Northern Idaho case was a landmark, according to the Department of Health and Human Services: it was the first time the agency had entered into a settlement involving security breaches involving fewer than 500 patients.

Obviously, the privacy regulations governing health care providers have a big impact on the provision of services and on patients. But what does this have to do with lawyers — especially since lawyers can not file lawsuits on behalf of clients who believe that their HIPAA privacy rights have been violated? It is the doctrine of unintended consequences writ large: lawyers who draft estate planning documents for clients want to be sure that they will be effective at a later time when the client may not be able to give consent. But there is concern that doctors, hospitals and other health care providers will not deal with family members, even if they have been named as agent in a properly drawn power of attorney.

We should not have to worry. The Department of Health and Human Services has made clear that it permissible for medical providers — including doctors, pharmacists, nurses and social workers — to talk with family members unless the patient has expressly forbidden such conversations. Among the frequently asked questions prominently listed on the DHHS website is this one:

“If I do not object, can my health care provider share or discuss my health information with my family, friends, or others involved in my care or payment for my care?”

The answer, in a word, is “yes.” Read the DHHS answer for more detail.

Much of the hyperbole about the reach of HIPAA, and the difficulty in complying, is just silly. Your doctor is supposed to have a plan for protecting your health records, and not to share them inappropriately. That should not preclude talking with either your family or your other health providers (hospital, pharmacist, social worker). But to be safe, your health care power of attorney, your financial power of attorney and even your revocable living trust could include a provision expressly authorizing your agent and trustee to talk with your doctor when it is necessary to get updated medical information.

And our client with the anxiety about stepping on the podiatrist’s scale? We explained the law to her. “That’s just silly,” we said. “HIPAA doesn’t mandate that they weigh you at every visit. That’s the Patriot Act.”

White House Conference on Aging (Cont’d)

APRIL 10, 1995 VOLUME 2, NUMBER 40

More proposals considered by Arizona delegates to the White House Conference on Aging (by topic area):

Health Care and Mental Health

  • Permit reimbursement for direct care provided by nurse practitioners and physician’s assistants, for home care, preventive care and wellness programs.
  • Reduce duplication and coordinate services, particularly for those who access special services such as Veteran’s programs, Indian Health Services and Medicaid.
  • Control prescription medication costs.
  • Avoid rationing of health care by caps on service reimbursement and cost-benefit analysis of the true value of high-cost medical procedures.
  • Use excess hospital capacity for alternative services, such as extended care and assisted living.
  • Share medical resources, particularly high-tech equipment.
  • Consider means-testing Medicare (though a strong minority voice opposed any discussion of such a step).
  • Expand health programs to include mental health services.
  • Promote greater patient involvement in medical decisions.
  • Deal more creatively with substance abuse and suicide among the elderly.
  • Encourage medical professionals to work in rural and under served populations.
  • Institute a single-payor national health program (though this one did not make it into the final report).

Long Term Care

  • Shift emphasis from long term care in medical institutions to home care.
  • Provide tax incentives for family caretakers.
  • Encourage innovation in state and local programs by granting federal program waivers.
  • Promote prevention practices, among both elderly and young.
  • Encourage seniors to volunteer in their communities, to help them stay vital and involved.
  • Develop a wellness check program for homebound seniors.
  • Provide loans and incentives for home repair and adaptation for the homebound elderly.
  • Increase recreational programs for the elderly.
  • Expand case management programs.
  • Provide respite care for family care givers.
  • Promote congregate housing alternatives to reduce care costs.
  • Promote family and community responsibility for the elderly.

These are just a few of the myriad of suggestions considered by Arizona delegates. Next issue, we will discuss “special populations” and “elder rights.”

White House Conference on Aging

APRIL 3, 1995 VOLUME 2, NUMBER 39

The White House Conference on Aging will convene in Washington, D.C. on May 2, 1995. For four days, delegates from around the country will discuss issues of importance to an aging American population.

Among the delegates will be four Pima County residents: Elder Law Issues Publisher Robert Fleming, PCOA Executive Director Marian Lupu, Univ. of Arizona Professor Theodore Koff, and former Social Security Commissioner Charles Schottland.

In previous Elder Law Issues, we have described some of the issues Arizona delegates wrestled with during the Arizona conference in January. Beginning with this issue, we will give you some insight into the issues that Arizona delegates thought important for the national agenda.

Issues on the Agenda

The Arizona conference dealt with five areas of concern for aging Arizonans. Those topic areas (more thoroughly described in previous Elder Law Issues) included:

  • Financial and Income Security
  • Health Care and Mental Health
  • Elder Rights
  • Long Term Care
  • Special and Minority Aged Populations

Not surprisingly, many of the ideas and concerns developed by the Arizona conference had been discussed and debated in previous forums. A sampling of the Social Security proposals and recommendations from the Arizona conference:
Isolate Social Security from other budget items, to preserve the programs viability and deal with anticipated future demands.

Reduce the federal deficit or, in other words, improve the quality of Social Security investments by avoiding use of Social Security to subsidize debt costs.

Streamline the Social Security Administration itself as a way to cut costs.

Consider means testing Social Security, but only if absolutely necessary (two of five separate discussion groups at the Arizona conference adamantly opposed any consideration of means testing).

Raise the wage cap on taxable salaries to generate more revenues.

Educate Americans to the reality that Social Security is intended to be a supplement to other retirement programs.

Encourage healthy seniors to remain employed longer by removing the cap on earnings for recipients (one discussion group adamantly opposed this solution, believing that the program would be seriously hurt financially).

Next Issue

Beginning next issue, Elder Law Issues will capsulize conference recommendations in other areas.

More AZ White House Conference on Aging

FEBRUARY 6, 1995 VOLUME 2, NUMBER 31

As mentioned in last week’s Elder Law Issues, the Arizona White House Conference on Aging held in Phoenix a week ago dealt with the issues facing the full White House Conference on Aging when it meets in May. Arizona’s delegation dealt with several issues expected to dominate the national aging agenda.

Health Care and Mental Health

In 1993, expenditures for health care totaled about $903 billion in the United States. Estimates indicate that the total cost of health care may exceed $1.7 trillion by the year 2000. While the overall cost of living increases at less than 5% per year, health care costs increase more than 10% each year.

Elderly citizens are more closely affected by medical problems than the general population. Those over 65 have an average of eight medical visits per year, as opposed to the five visits made by the rest of the population. The elderly are hospitalized more than three times as often as younger patients, stay half again as long in the hospital, and use twice as many prescription drugs. The disparity is widening; elderly patients are expected to increase their contacts with physicians by 22% (from 259 million contacts to 296 million) by the turn of the century.

The federal Medicare program provides medical care to most Americans over age 65 (about 5% of the elderly are not covered by Medicare). In 1995, Medicare recipients pay $46.10 per month(an increase of over 10%) in insurance premiums to secure coverage for most medical care. Costs not covered by Medicare include eye and dental care, most prescription medications, most nursing home care and most mental health care.

In addition to Medicare Part B premiums, many elderly patients pay substantial deductibles and co-payments for their medical coverage. Others (in increasing numbers) rely on managed care (HMO) programs to reduce or eliminate co-payments.

Mental health services are particularly limited by Medicare. While Arizona has one of the highest suicide rates for over-65 patients in the nation, depression and alcoholism (the leading precursors to suicide and other behavioral health problems) are often undetected and untreated. Reimbursement rates and coverages are not conducive to appropriate and prompt treatment.

Elderly patients in rural areas face particular problems with health care. In addition to the other health issues, rural Arizonans have particular difficulties with transportation. In addition, physicians in rural areas are much more likely to refuse to accept Medicare assignment for their services.

[Next issue: “Special” Elderly Populations]

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