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BIOMEDICAL ETHICS. R.B. F riedlander Deputy General Counsel. What is Biomedical Ethics?. Philosophical study of ethical controversies brought about by advances in biology and medicine Relationship among life sciences biotechnology medicine politics law – discussion today philosophy .
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BIOMEDICAL ETHICS R.B. Friedlander Deputy General Counsel
What is Biomedical Ethics? • Philosophical study of ethical controversies brought about by advances in biology and medicine • Relationship among • life sciences • biotechnology • medicine • politics • law – discussion today • philosophy
Biomedical Ethics – A Few Legal Areas Today’s topics • Confidentiality • HIPAA • Compliance • Informed Consent • Whistleblowers
Takeaway Points • Use common sense • Go with your gut — do the right thing • Ask the experts • If you proceed, how would it appear on the front page of the newspaper? • Could you defend the benefits vs. the risks in a way a non-clinician / non-researcher could understand?
Biomedical Ethical Issues – Numerous and Complex • Don’t try to know all the applicable rules/regulations/laws on the topics of confidentiality, compliance, HIPAA, informed consents, etc. – leave it to the lawyers. USF also relies on expert outside counsel • With bioethical issues, not always a matter of what one can or cannot do — it’s often a matter of weighing the risks vs. benefits
Confidentiality in the University World • HIPAA applies to covered entities (more later) • Florida state law on medical privacy is more restrictive than HIPAA • Which is allowable • Student records protected from disclosure under FERPA — also applies to Residents • Generally, all written records of faculty or staff of this University can be released to the public • Exemption from disclosure examples: • Social Security Numbers • Medical information • Research protocols • Impaired practitioner information
Florida Laws on Medical Records • Medical records are confidential • Some records are “Super” confidential • Mental health • Substance abuse • STDs • Genetic testing • HIV
Health Insurance Portability and Accountability Act of 1996 - HIPAA • Goal • To protect patient privacy, Protected Health Information (PHI) and allow portability of health insurance. • Covers privacy, security (use of technology) • Broad congressional attempt at healthcare reform
HIPAA • Purpose is to increase efficiency and effectiveness of health care system through • Electronic exchange of information • Standardization of that information • Enhanced security and privacy of Protected Health Information (PHI)
HIPAA • Perceived need – 1 in 6 patients omit medical history information from physician out of fear of misuse or mishandling • Applies to covered entities, health plans, HMOs, Medicare, providers, health clearinghouses. • USF is a “hybrid” covered entity. USF College of Medicine, College of Nursing, Student Health Services, Byrd Institute are covered because they are entities providing medical treatment for which they electronically bill. • Covered entities must: • Maintain reasonable & appropriate safeguards • Maintain physical safeguards
HIPAA Privacy Rule Key Features • PHI • Uses and disclosures • Consents • Authorization • Notice of privacy practices • Minimum necessary information given • Patient rights • Business associates • Marketing, fundraising and research • Interaction with state privacy and confidentiality laws • Penalties
HIPAA Acronyms • PHI Protected Health Information - Health and demographic information about an individual • IIHI Individually Identifiable Health Information, e.g., name, address, dates, telephone number, SSN, medical record #, fingerprints, photographic images, etc.
Permitted Use of PHI / IIHI –“TPO” • Subject to a general consent from the patient, HIPAA permits use or disclosure within the covered entity or to a business associate for • Treatment • Payment • Health Care Operations, which can include • Qualify assessment and improvement • Peer review/credentialing • Medical review, legal services, auditing • Business planning and development • Administrative activities
HIPAA Requirements • Providers must obtain prior consent to treatment, except • In emergencies, or • Where provider is obligated by law to provide care • Providers can condition treatment on granting of consent to treatment • Authorization must be obtained for all uses and disclosures other than TPO or those mandated by law • Provider must give privacy notice to patients
HIPAA - Other Applicability • Business Associate Person or entity who provides services on behalf of covered entity or to a covered entity and is not a member of your workforce • Research If it involves health information about living participants, deceased persons, is related to human tissue samples, chart review and or stored in databases or repositories
Individual Rights Under HIPAA • Receive written notice of privacy practices • Request restrictions on uses and disclosures • Access, inspect and copy their PHI • Request amendment or correction of the PHI • Receive an accounting of disclosures of their PHI (except those related to treatment, payment and operations)
Enforcement of HIPAA — as to state agencies • Enforcement • DHHS/OIG • CMS • DOJ • State Attorneys General • Penalties for the intent to sell or use PHI • Civil and criminal penalties with fines up to $250,000, and/or • 10 years in prison
Amendments to HIPAA – HITECH • HITECH – Health Information Technology for Economic and Clinical Health • Part of the American Recovery and Reinvestment Act (ARRA) of 2009 – eff. 2/17/09 • Expanded definition of privacy breaches • Greater reporting/notification of suspected breaches • Responsibility to investigate breaches and mitigate losses enhanced • Improved enforcement
Compliance • Just do it • Someone else’s alleged non-compliance does not grant permission to others to do the same • Hundreds of laws/regulations USF employees have to comply with in medical/research areas • Different types of conflict of interest considerations • Sponsored research • As a public officer/employee • University employment/conflict of commitment, institutional COI
Whistleblowers • Federal and State False Claims Act (FCA)— see class handout • Federal FCA • Old law • Very broadly defined • Whistleblower protections • Penalties steep – civil penalty for each claim • Multi-million dollar payouts, even for public entities, e.g., UMDNJ – over $350M
Other “Whistleblower” Provisions • Other state laws on subject • General state law on whistleblowers – not just in medical arena • Usually applied in employment-related context • Important principle for USF – if complaint is made, no retaliation allowed
Informed Consent • Consents & authorization requirements • Written in plain language • Inform patient of the procedure’s risks/benefits • How will it be used • Signed and dated • Divorced parents • Either parent can consent to medical or surgical treatment unless court order provides otherwise • Physical custody does not determine authority to consent • If divorced parents disagree, consent of either parent will suffice • Non-parents can consent under certain circumstances
Minor’s Rights • Minors can give consent in certain situations • Emancipated • Married minor • Pregnant minor • Minor mother • Minors can consent for treatment of • STDs • Maternal health/contraception • Substance abuse • Outpatient emotional crisis counseling
Valid Authorizations • Authorizations must be obtained for all uses other than TPO or those mandated under law and must include: • Description of the information to be disclosed • Name of person or entities to whom the information will be disclosed • An expiration date • Information regarding right to revoke • Date and signature
Consent Principles Remember… • Have consents drafted and reviewed by counsel with input from providers • Inform patient what is happening and what might happen • Verify they understand scope of the consent • Discuss consent in person • Don’t rely exclusively on a consent to insure no legal action will be brought
Conclusion • Do what’s right in medical/research context • What did your mother tell you? • For healthcare providers, treat in emergency • Providers discuss mistakes when needed to improve treatment/performance for future patients • Let lawyers worry about legal consequences • Do the right thing!