Presentation Transcript

1. Legal Issues for an Aging HIV Population

   Legal Action Center Presented by Legal Action Center
2. Who is your trainer? Sally Friedman, Esq. Legal Director Legal Action Center Legal Action Center
3. Who is the Legal Action Center? Non-profit law & policy organization Anti-discrimination & privacy work Substance Use Disorders HIV/AIDS Criminal Records Legal Action Center
4. How to get help? Legal Action Center website has many resources! www.lac.org Free publications, free webinars and more Call the Legal Action Center with questions about privacy or discrimination relating to HIV/AIDS, substance use disorders, and/or criminal records – ask for paralegal or attorney-on-call (212) 243-1313 Refer clients (see next slide) Legal Action Center
5. Free Legal Services Including – HIV testing & confidentiality Discrimination based on: HIV status Alcohol/drug history Criminal record – Rap sheet review and error correction Certificates of Relief and Good Conduct Job & housing discrimination Legal Action Center
6. Like us & Follow us! Visit LAC on Facebook: https://www.facebook.com/pages/Legal-Action-Center/117162234980967 And Twitter: https://twitter.com/lac_news Legal Action Center
7. Why are you here? Majority of persons with HIV will be at least 50 by 2015 Unique barriers to care -- other diseases, stigma & isolation, care providers that historically have not provided care to HIV+ population -- maybe some of you! Legal Action Center
8. Today’s Training Legal issues for older NY’ers with HIV. By the end of the training, you will be able to: Explain basic purposes of living wills, health care proxies& powers of attorney. State whether HIV-positive individuals can buy life insuranceand any limitations. Recite basic non-discrimination rules for nursing homes & other long-term care. State basic confidentiality protections for HIV-positive persons living in nursing homes or other institutional settings. Legal Action Center
9. Today’s handouts This PowerPoint presentation Health Care Proxies Q&A Living Wills Q&A Sample Health Care Proxy form Sample Living Wills (two) Sample Appointment of Agent to Control Disposition of Remains Legal Action Center
10. Today’s hand-outs Are You Somebody With… HIV/AIDS Testing, Confidentiality & Discrimination: What You Need to Know About New York Law. Also available at www.lac.org (free publications/HIV) Legal Action Center
11. 1. Advanced directives – Who Can make decisions when you can’t? Legal Action Center
12. Who can make health care decisions generally? From age 18, people make own health care decisions if have “capacity to consent.” Means able to: Understand and appreciate nature and consequences of proposed treatment or diagnosis, including benefits and risks possible alternatives (including not doing it) AND Make an informed decision about whether to consent to proposed test, procedure, or treatment. Legal Action Center
13. Who can make health care decisions generally? But who makes health care decisions if someone does not have capacity to consent? Temporary incapacitation (e.g., accident, illness, surgery) – regardless of age Permanent condition (e.g, dementia, coma, persistent vegetative state) Legal Action Center
14. Who can make health care decisions generally? Options Health care proxy DNR Living Will Surrogate decision maker Court-appointed guardian Power of attorney does not have health care decision making authority! Legal Action Center
15. Health care proxy What is a Health Care Proxy (HCP)? Form that allows you to choose someone else to make health care decisions in the event you cannot make your own (you lack capacity). “Principal” – person choosing someone else to make decisions. “Agent” – person who gets decision making authority. See sample form. Legal Action Center
16. Health care proxy Can agent decide everything? Can give agent authority for all or some health care decisions. If not expressly limited, agent has all authority, including authority to consent to HIV test/treatment and to disclosures of HIV-related and other health information But agent will not have authority to make decisions about artificial hydration and nutrition unless proxy says so. Legal Action Center
17. Health care proxy What if principal regains capacity to consent? Agent loses authority. Attending physician decides if principal regains capacity, but in some circumstances, must consult with a specialist. Legal Action Cenrr
18. Health care proxy Who signs proxy? Signed by principal and two witnesses (agent cannot be witness). Doesn’t need to be notarized. How know if principal is competent to sign? Adults are presumed “competent” to appoint a health care agent unless adjudged incompetent or the court appointed a guardian. Legal Action Center
19. Health care proxy Who can/should be an agent? Anyone over age 18. Do not need to name spouse. If name spouse, agency ends if divorce or separation. Can choose a doctor if not your treating physician. May also choose alternate. Doesn’t have to live in NY, but good idea to name someone nearby. Legal Action Center
20. Health care proxy Is it forever? Can you take it all back? Good forever unless revoked or change by operation of law (e.g., divorce/spouse is agent). Can change or cancel directives any time. Destroying a document cancels it. Executing a new document cancels the first one. Good to review every 5years or after major life event (divorce, death or incapacity of an agent). Always tell people about changes. Best to get documents back. Legal Action Center
21. Health care proxy How will your doctor know about your health care proxy if you don’t remember or can’t communicate? Make copies and give to – All medical care providers (will put in medical record). Agent Attorney Friends/family Keep the original in a safe place, anywhere but in a safe deposit box where no one will find it. Legal Action Center
22. Health care proxy What about HCPs done in other states? Doctors in NYS should honor it as long as it complies with NY law. Legal Action Center
23. Do Not Resuscitate Orders (DNR) What is a DNR? Document, usually put in medical chart, that instructs medical professionals to not perform CPR, emergency treatment, in the event breathing stops. Applies to mouth-to-mouth resuscitation, chest compression, electric shock, insertion of tube into your airway, injection of medication or the opening of your chest. Legal Action Center ‘
24. Do Not Resuscitate Orders (DNR) Capacity presumed. Like HCPs, patients are presumed to have capacity to decide about DNR orders. Determinations to the contrary must be “to a reasonable degree of medical certainty.” Signature/witnesses - Competent adult may consent (i) orally before 2 witnesses (one being physician from hospital), or (ii) in writing witnessed by two people 18 years or older. Revocation – May revoke consent any time by oral or written declaration to physician or nursing staff, or by other act evidencing specific intent to revoke (e.g., purposefully removing DNR bracelet in front of doctor or nurse). Doctor must then immediately record revocation in medical record. Legal Action Center ‘
25. Living Wills What is a living will? Document with your instructions for health care interventions you do and do not want when/if you no longer have capacity. Provides “clear and convincing evidence” of your intent, as required by case law. Not a creature of statute. Good to have living will to guide agent designated in health care proxy. Legal Action Center ‘
26. Living Wills Why need a living will if have HCP? Good to have living will to guide agent designated in health care proxy. Why need a HCP if have living will? Gray areas likely will emerge. Good to have a person you trust to make those hard calls. Legal Action Center ‘
27. Living Wills See samples (two) in hand-outs. Compare Legal Action Center form – different options depending on person’s condition - with streamlined form from courts. See Q&As in hand-outs. Can refuse any type of treatment. Should discuss with a doctor. Legal Action Center ‘
28. Living Wills Revocable? Yes, as with HCP. Can tear it up, write a new one. But remember to tell your agent. Give a copy to agent if have an HCP. Give copy to doctor. Need lawyer? No. Just two witnesses 18 or older who can say you were of sound mind when signed. Legal Action Center ‘
29. Organ/tissue donation Can you include organ/tissue donation in a living will? Yes. Form from courts includes it. HCP also can authorize organ/tissue donation. Legal Action Center
30. Cremation & burial Can be in a will (not living will) – but wills may not be discovered immediately after death. May permit agent to control dispositions of remains. (Public Health Law § 4201) See sample form (Appointment of Agent to Control Disposition of Remains) in hand-outs or at… https://www.health.ny.gov/professionals/funeral_director/docs/control_disposition_of_remains.pdf Legal Action Center
31. Surrogate decision maker Family Health Care Decisions Act (FHCDA) If mentally incapacitated in hospital or residential care facility… (includes nursing home) Health care decisions can be made by “surrogate.” Attending physician decides if patient lacks capacity (in some circumstances, may need to consult with another medical professional) Must document. Legal Action Center
32. Surrogate decision maker Who can be a surrogate? Use the order on this list (depending on availability): Guardian authorized by court to make such decisions Spouse (if not legally separated) or domestic partner Son or daughter (18 years or over) Parent Sibling (18 years or over) Close friend Person whose relationship is highest can designate someone at any other level if no one higher objects (e.g., spouse can designate sibling). Legal Action Center
33. Surrogate decision maker What if no one on the list is available? FHCDA allows (doesn’t mandate) physicians to make any type of health care decision without going to court. Law sets out different procedures depending on whether the medical treatment is routine or major, or involves withholding/withdrawing life-sustaining treatment. Legal Action Center
34. Surrogate decision maker Surrogate must make decisions in accordance with patient’s wishes. Surrogate can make any type of health care decision, including whether to withhold or withdraw life-sustaining treatment. More information on FHCDA & HIV from DOH: http://www.health.ny.gov/diseases/aids/providers/regulations/fhcda/ai_fact_sheet.htm Legal Action Center
35. Court-appointed guardian Article 81 of the NYS Mental Hygiene Law Court may appoint a guardian if necessary to provide for personal needs and/or manage property & financial affairs, and person agrees or is incapacitated. Based on concept of the least restrictive alternative - appropriate to satisfy needs of incapacitated person, but also Tailored/limited to activities needing assistance. Legal Action Center
36. Powers of attorney “Principal” gives “agent” (at least one) authority to make decisions non-medical decisions. Powers can include banking & real estate transactions, taxes, personal & family matters and more. See sample. http://www.nyc.gov/html/dhs/downloads/pdf/poa_ny_short_form1_%20082010.pdf “Durable” POA -- authority survives principal’s incapacity. (Otherwise, it won’t.) Durable POAs expire upon death of grantor, unless revoked earlier. Legal Action Center
37. Powers of attorney BE CAREFUL!!! Appoint someone you trust. Authority commences as soon as POA is signed by principal and agent (need notary). Agent can empty your bank account if you give that authority. Agent does not need to ask principal first. Principal does not lose authority. Can execute but leave it with attorney or some other person, with instructions to turn it over to agent at an appropriate time. Legal Action Center
38. Powers of attorney Details… To use the POA, agent should take original & copies to place where power will be used (e.g., bank). To revoke -- deliver written revocation to agency. Also serve revocation on financial institutions with which agent has interacted. Legal Action Center
39. 2. A brief overview of some insurance issues Legal Action Center
40. HEALTH INSURANCE Legal Action Center
41. Health Insurance: HIV/AIDS HIV/AIDS People in the U.S. cannot be denied health insurance simply because they have HIV /AIDS (or any other illness). People in the U.S. cannot be charged a higher health insurance premium simply because they have HIV or AIDS (or any other illness). Rights per Affordable Care Act (were in NYS law already) Legal Action Center
42. Health Insurance: Substance Use Disorders Mental Health Parity & Addiction Equity Act (“Parity Law”) Applies to employer-sponsored health insurance plans with 50+ employees. Plans are not required to offer mental health or addiction benefits, but if they do, must offer them at “parity” with medical/surgical benefits What does this mean? Same co-pays, deductibles, annual & lifetime caps Cannot medically manage mental health/addiction benefits more stringently than medical/surgical If medical/surgical has out-of-network benefits, mental health/addiction must too Legal Action Center
43. Health Insurance: Substance Use Disorders “Parity Law”, cont… For more information, see Parity Implementation Coalition website: http://parityispersonal.org/ Can report violations of the Parity Law to this coalition Also see SAMHSA’s parity website: http://beta.samhsa.gov/health-reform/parity?from=carousel&position=1&date=10282013 This law is in effect now! Legal Action Center
44. Health insurance: Generally Before 2014 Since Jan. 1, 2014 Plans could refuse to accept, or charge higher premiums to, people/employers with higher health costs Plans must accept everyone, regardless of health status Policy can only be cancelled for failure to pay premiums Legal Action Center
45. Health insurance: Generally Before 2014 Jan. 1, 2014 Insurer could refuse to cover a person with a pre-existing condition (“P.E.C.”), or refuse to cover costs related to P.E.C. Insurers cannot deny coverage based on pre-exiting condition Insurer cannot refuse to pay for treatment for a particular condition simply because person had the condition before joining the plan Legal Action Center
46. Health insurance: Generally Before 2014 Since Jan. 1, 2014 Insurers could charge higher premiums based on health status, health care utilization, and more (called “rating”) Insurers may not charge higher premiums based on health status, health care utilization, or gender May charge higher premiums based on age, geographic area, and tobacco use Legal Action Center
47. Health insurance: Generally Before 2014 Since Jan. 1, 2014 Employer-based health plans were not required to cover specific types of benefits (e.g., mental health and substance use disorder) All small employer plans must provide “essential health benefits” (EHB) including mental health & substance use and chronic disease management Parity Law applies EHB cannot be designed in way that discriminates based on disability, life expectancy, or age Legal Action Center
48. Health insurance: Generally Before 2014 Since Jan. 1, 2014 Very few anti-discrimination or other protections in individual and small group insurance market Health insurance “exchanges” set up Plans sold on exchanges must have adequate networks Networks must include “essential community providers” (includes Ryan White grantees, federally qualified health centers, etc.) Legal Action Center
49. Health insurance: Generally For information on upcoming changes under health care reform: Federal government’s website on health care reform: http://www.healthcare.gov/ NY State’s website on health care reform: http://www.healthcarereform.ny.gov/ Coalition for Whole Health (focus on mental health and substance use disorders): http://www.coalitionforwholehealth.org/ Legal Action Center
50. Health insurance: Generally To buy health insurance on the New York exchange: Official Health Plan Marketplace website: https://nystateofhealth.ny.gov/ Legal Action Center
51. Insurance issues LIFE INSURANCE & DISABILITY INSURANCE Legal Action Center
52. Life & Disability Insurance Life & Disability Insurance Companies May: Require applicants to be tested for HIV, but must: Tell applicants they will be tested Provide applicants with general information Have applicant sign a consent form Legal Action Center Cont….
53. Life & Disability Insurance Life & Disability Insurance Companies May: (cont….) Ask applicants about illnesses with which they have been diagnosed, including HIV. Deny coverage or charge higher premiums for people with certain illnesses, such as HIV. Require people with certain illnesses, such as HIV, to go through a waiting period before coverage begins. Legal Action Center
54. Life insurance Can someone with HIV obtain life insurance? Sometimes. A few life insurance companies will issue limited amounts of life insurance to HIV+ individuals. Typical benefits range from $5,000 to $15,000. “Guaranteed life insurance” companies” -- offer insurance that is not medically underwritten” -- no medical exam required. Legal Action Center
55. Life insurance Possible sources of life insurance without medical underwriting: New York Life through AARP for individuals eligible for AARP, up to $15,000 Mutual of Omaha - up to $10,000 Physician's Life - up to $10,000 Gerber Life - limited amounts ($5,000 - $10,000) Farmers Guaranteed Trust Life Insurance Company Legal Action Center
56. Life insurance Viatical settlements. Can sell your life insurance for an amount much less than the death benefit. Accelerated benefits. If very sick & likely to die within short time, get a smaller amount than death benefit. Legal Action Center
57. Life insurance Employer plans Many employer plans include an automatic life insurance policy up to a certain percentage of an employee's wages on a group basis without underwriting or any qualifying process. Social security survivor benefits Legal Action Center
58. Life & Disability Insurance For more information: New York State Insurance Department at 1-800-342-3736 www.thebody.com (insurance and much more) Legal Action Center
59. Burial insurance Life insurance can be used to pay for burial/funeral expenses, or Can buy burial insurance: burial & funeral expenses only. Can buy through broker or ask NYS Insurance Department for list. Usually costs more for same benefit a life insurance. Sometimes ask health-related questions, sometimes don’t. Can affect cost or length of coverage. Legal Action Center
60. 3. Discrimination Legal Action Center
61. What is Discrimination? Treating a person less favorably/differently because of his or her STATUS… … when the law does not permit it. Examples: race, age, disability, gender, religion, sexual orientation, marital status. Legal Action Center
62. Discrimination is…. Examples of discrimination: Adult day care program has a policy of not admitting people who are HIV+. Doctor’s office refuses to treat a man for his broken leg because he has a history of drug addiction. Landlord will not rent to woman because she is in recovery from alcoholism. Legal Action Center
63. Discrimination is not… Anti-discrimination laws require employers & others to: Look at each person individually, on a case-by-case basis. Not make generalizations and rely on stereotypes and about a person based on his/her status (e.g., based solely on the fact that the person has a disability). Legal Action Center
64. Discrimination is not… Treating a person less favorably/differently because of his or her CONDUCT. Legal Action Center
65. Discrimination is not… Examples of non-discriminatory action: Employer fires employee who caused workplace accident because he was under the influence of alcohol or drugs. Group residence discharges/evicts someone because of continuous rule violations -- even if the individual has disability. Legal Action Center
66. Today’s Presentation/Discussion Focuses on discrimination in … Places of public accommodation: Health care providers/facilities Nursing homes Long term care facilities Housing -- included assisted living & seniors’ residences Legal Action Center
67. Today’s Presentation/Discussion Focuses on discrimination because of … HIV/AIDS Substance Use Disorder Viral Hepatitis But… some of the same laws prohibit discrimination due to sexual orientation. For more info on LGBTQ discrimination: LGBT Aging Center, http://www.lgbtagingcenter.org Lambda Legal, http://www.lambdalegal.org/ Legal Action Center
68. Laws prohibiting discrimination… FEDERAL LAWS Americans with Disabilities Act (“ADA”) Rehabilitation Act of 1973 (“Rehab Act”) Fair Housing Act Workforce Investment Act Family and Medical Leave Act STATE & CITY LAWS New York State Human Rights Law New York City Human Rights Law Legal Action Center
69. Laws prohibiting discrimination… What do these federal, state, and city laws do? Together, prohibit discrimination by at least: Private employers with 4 or more employees State and local government agencies Workforce development programs funded by the federal government Places of public accommodation: Doctors’ offices & other health care providers and facilities Social service facilities (e.g., homeless shelter, adult day care) Residential facilities (including group homes) and all other forms of housing Legal Action Center
70. laws prohibiting discrimination… WHO IS PROTECTED BY THESE LAWS? Legal Action Center
71. Who is protected by These laws… An individual who-- Has a “disability,” Has a history/record of a disability, or Is regarded as having a disability. Generally includes people with: HIV/AIDS Hepatitis Past alcoholism/drug addiction Current alcohol addiction But not people who currently use drugs illegally when the discrimination is because of that use. Legal Action Center
72. Who is protected by these laws? Case-by-case determination Remember: perceived status of having hepatitis/HIV is also a covered by the law: Example: Adult day care patient is gay so provider employer assumes he must also have HIV or hepatitis. Legal Action Center
73. Who is protected by these laws? CASE STUDY Jay is 55 years old. Has been in recovery from an opiate addiction for 15 years during which time he has been in a methadone maintenance program. All urine tests have been negative except for a short relapse 10 years ago. He applies for admission to an adult day care program but is denied because he is in a methadone maintenance program. Is Jay protected by anti-discrimination laws? Probably. (Record of/regarded as) Legal Action Center
74. What rights do these laws give? Shall not be discriminated against because of disability Legal Action Center
75. What rights do these laws give? What does that mean? Can’t be treated differently because of disability. Entitled to a reasonable accommodation. Legal Action Center
76. Case study - differential treatment Jane is 60 years old. Goes to Downtown Eye Clinic for an eye problem. Discloses HIV status on the medical history. Clinic tells her that because she is HIV+, she should go to hospital’s infectious disease clinic instead. Clinic does not call hospital for her, but gives her the general phone number for infectious disease program. Discrimination? Legal Action Center
77. Case study - differential treatment Depends….need to know more: Clinic is a place of public accommodation, so must comply with anti-discrimination laws (ADA, NYS and NYC Human Rights Laws) But why did Clinic deny Jane services? If denied services because feared HIV infection, then discrimination! Legal Action Center
78. Case study - differential treatment Could clinic use “direct threat” defense? Public accommodations may deny services if person with disability poses “direct threat” to health and safety of others: Significant risk based on best available objective evidence, current medical knowledge. Can’t be mitigated through reasonable modifications of policies, practices, procedures. Can’t be speculative, remote or based on anecdotal experience or myth. Legal Action Center
79. Case study - differential treatment In determining whether someone poses a “direct threat,” should consider 4 factors: 1) duration of the risk 2) nature and severity of the potential harm 3) likelihood that potential harm will occur 4) imminence of the potential harm Legal Action Center
80. Case study - differential treatment “Direct threat” HIV+ patient does not pose direct threat in health care settings. Must use universal precautions for everyone. Abbott v Bragdon-- U.S. Supreme Court case. Similar for hepatitis. U.S. Dept. of Justice settled case against dentist for refusing to treat woman with hepatitis C. Legal Action Center
81. Case study - differential treatment Was referral medically justified? If referral was medically justified -- doctor did not have skill level/expertise to treat Jane’s eye problem, no discrimination. In some circumstances, HIV/AIDS may present medical complications that could warrant a referral. But absent medically justifiable reason, it’s discrimination. Legal Action Center
82. Case study - differential treatment Other examples of discrimination Requiring HIV-positive patient to come to last appointment of day (DOJ settlement against Woodlawn Family Dentistry) Isolation & unwarranted “precautions”: Dubin v. Marcus Garvey Nursing Home. Violated NYS Human Rights Law by placing resident in strict isolation because of HIV status & not allowing him to use public phone. Legal Action Center
83. Case study - Reasonable accommodation Tomis in recovery from addiction to prescription pain medication. Getting treatment with suboxone (controlled substance approved for treatment of opiate addiction). Denied admission to Eastside Seniors Residence because of policy: no controlled substances on site. Discrimination? Legal Action Center
84. Case study - Reasonable accommodation It may. Unlawful discrimination also includes refusing or failing to make reasonable accommodations for people with disabilities, when needed. Legal Action Center
85. Case study - Reasonable accommodation Possible reasonable accommodations (in lieu of policy patients treated with suboxone from seniors residence): Arranging for patient to store MAT medication in lock box in house, etc. Legal Action Center
86. Questions about disabilities Back to Jane -- patient at Downtown Eye Clinic. Was it legal for Clinic to ask Jane about HIV status on medical history form? Yes. Anti-discrimination laws limit what employers may ask about disabilities, but do not limit what places of public accommodation may ask. BUT Clinic may not discriminate with that information. Legal Action Center
87. Questions about disabilities What about housing? May assisted living facility ask applicant if HIV positive? Has viral hepatitis? Has ever been in alcohol/drug treatment? Depends. FHA generally prohibits inquiring about disability but not if ask all applicants and: Inquiring to determine eligibility for dwelling available only to individuals with disabilities or particular type or to dwelling that gives priority to individuals with disabilities (or particular type)… Legal Action Center
88. Questions about disabilities (continued) Asking if “current illegal abuser or addict of a controlled substance” Asking if convicted of illegal manufacture or distribution of controlled substance. Note: FHA applies to assisted living facilities, senior residences, but maybe not nursing homes (could be public accommodations instead). Legal Action Center
89. remedies What to do if you face discrimination? Contact a lawyer. Options include Legal Action Center; also see lawhelp.org: http://www.lawhelp.org/. File a complaint with agency(ies) that enforce the law (can do without a lawyer). File a lawsuit in state or federal court. Having a lawyer is usually critical to success. Legal Action Center
90. remedies What can people get from successful complaint or lawsuit? Money (sometimes) for mental anguish, other losses Changed policies Order requiring discriminating entity to admit/treat you/stop discriminating. Legal Action Center
91. remedies Where to get more information on agency complaints? NYS Division of Human Rightshttp://www.dhr.ny.gov/ NYC Commission on Human Rights http://www.nyc.gov/html/cchr U.S. Department of Justice (ADA) http://www.ada.gov/filing_complaint.htm U.S. Department of Housing & Urban Development (FHA) http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities Legal Action Center
92. Remedies REMEMBER: It is VERY important to stay mindful of deadlines for filing complaints and lawsuits! Legal Action Center
93. 4. Confidentiality in an institutional setting Legal Action Center
94. Why is confidentiality so important? STIGMA Fear of disclosure of HIV information can -- Lead people to avoid getting care. Cause anxiety & depression. Disclosure is sometimes necessary -- to health care providers, social service agencies, government agencies that provide benefits, sexual partners, and others. Legal Action Center
95. What are confidentiality protections for HIV? Substance use treatment information? Other medical information? Legal Action Center
96. What are the privacy laws? HIV: Art. 27-F, NYS Public Health Law Health information generally: HIPAA (federal) & NY Public Health Law Alcohol/drug treatment: federal regulations, 42 C.F.R. Part 2 Mental health: HIPAA and NYS Mental Hygiene Law Legal Action Center
97. HIV confidentiality Today’s training -- Art. 27-F -- special confidentiality issues for an aging HIV+ population. For basic overview, take HIV/AIDS Confidentiality Law Overview, Available 24/7 at http://www.hivtrainingny.org/ (can get CEU!). Legal Action Center
98. Article 27-F Who must follow this law? Most “health or social services” providers Most agencies that serve people with HIV (nursing homes, adult day care, home care, all health care providers). Anyone who receives HIV information pursuant to a proper written release. NY state and local governmental agencies that provide, supervise or monitor health or social services Legal Action Center
99. Article 27-F Who must follow this law? Does not apply to Friends, relatives Landlords (unless they are health/social service provider, e.g., supportive housing, nursing home) Legal Action Center
100. HIPAA: What is it? Federal law, minimum safeguards to protect privacy of “protected health information.” Applies to “covered entities” -- health care providers, health plans, health care clearinghouses IF they transmit protected health info. electronically to process payment or make eligibility determinations. Most NY health care providers must comply with HIPAA & Art. 27-F. Conflict? Apply more “stringent” law-usually Art. 27-F. Legal Action Center
101. Article 27-F:The general rule NO DISCLOSURE: A provider may not disclose any – HIV-related information obtained while providing health or social serviceor through a release. Includes: HIV+, HIV-, had HIV test, contact Legal Action Center
102. “Exceptions” to the General Rule: When Disclosure is Permitted Despite general non-disclosure rule: Both HIPAA & Article 27-F have “exceptions” that permit sharing HIV information. Won’t discuss most of them today. Legal Action Center
103. Main Article 27-F exceptions permitting disclosure Exceptions covered by this presentation: Written Release Disclosures to health care providers Estates Note: Follow Article 27-F rules governing these exceptions. They are more protective (“stringent”) than HIPAA. Legal Action Center
104. Exception #1 -- Written releaseCase Study Edward has AIDS & occasional dementia. Hospital social worker trying to arrange new housing prior to discharge. Eligibility is based on HIV status, so needs to disclose Edward’s status to housing provider. Social worker disclosed Edward HIV status to housing provider without written release form. Legal? Legal Action Center
105. Exception #1: Written ReleaseCase Study (cont.) No. Social worker needed release. Must use DOH-approved releases – there are 2! OR Form that’s consistent with them. DOH forms are in hand-outs. Legal Action Center
106. Exception #1: Written Release Who signs if individual lacks capacity to consent (i.e., has dementia)? Remember Part one today -- who makes health care decisions for individuals who lack capacity? That person has authority to sign HIV release form. Could be agent per HCP, Surrogate, Court-appointed guardian. But if individual has intermittent capacity, can seek signature then. Legal Action Center
107. Exception #2: Disclosures to Health Care Providers Case Study – Referral to Specialist Jan has seen primary care doctor since HIV diagnosis three years ago. Primary care doctor now plans to refer her to a specialist. Does doctor’s office need HIV release form to disclose Jan’s HIV status to specialist? Legal Action Center
108. Disclosures to Health Care Providers (cont.) Answer:No May disclose HIV related information – without release – to outside health care provider/facility when necessary for that health care provider/facility to know the HIV informationin order to provide appropriate care or treatment to: 1. The protected individual, or 2. His or her child, or 3. His or her contact (spouse, sex or needle-sharing partner). Legal Action Center
109. Disclosures to Health Care Providers (cont.) Answer (cont.). Here – Knowing Jan’s HIV status is necessary for specialist to give her appropriate care. Some agency policies require a written release anyway because they consider it good practice. Must document the disclosure. Legal Action Center
110. Disclosures to Health Care Providers (cont.) What if… Primary care doctor just made initial diagnosis. Arranging with another health care provider for follow-up medical care. Need Jan’s consent? No written release need, but do need oral consent. Legal Action Center
111. Disclosures to Health Care Providers (cont.) Answer (cont.). Here – If community-based organization (not health care provider) discloses HIV-related information to health care provider: DOH suggests using release if not an emergency. Legal Action Center
112. Disclosures to Health Care Providers (cont.) Case study – EMS Jan (HIV+) falls unconscious at HIV case management office, hits head and bleeds. Agency calls EMS. EMS asks about medications. May agency tell EMS Jan’s HIV medications? Her HIV status? Legal Action Center
113. Disclosures to Health Care Providers (cont.) Answer: OK to tell EMS about medications and HIV status so EMS can provide appropriate care to Jan en route & convey the information to the hospital. If Jan were conscious, agency could permit her to make own disclosure. Legal Action Center
114. Exception #3: estatesCase study Ted, age 67, died of AIDS-related complications in nursing home. Ted did not have a health care proxy. Sister shows up for the first time, after Ted’s death. Nurse says -- I’m so sorry. There was nothing we could do to prevent his death from AIDS. Did nurse violate Ted’s confidentiality? Legal Action Center
115. Exception #3: estates Depends. Art. 27-F does apply after death (per DOH). But permits disclosures to executor or administrator of estate to fulfill related responsibilities. Was Tom’s sister the executrix or administratix of his estate? If not, disclosure was illegal. Legal Action Center
116. Exception #3: estates What about the death certificate? HIV-related info. may be listed in death certificate & related documents identifying cause of death. Who has access to death certificate? Spouse, children, parents, or lawful representative of the deceased individual, persons who can document a medical need or who need the document to establish a legal right or claim. Not subject to Freedom of Information Law requests. SeeN.Y. Pub. Health Law § 4174(1) for full list. Legal Action Center
117. Other “exceptions” permitting disclosure under Article 27-F Other exceptions: Internal communications Partner notification HIV/AIDS case reporting Physicians & minors Foster care/child abuse & neglect Occupational exposure Insurance Court orders Program evaluation Newborns Legal Action Center
118. Other “exceptions” permitting disclosure (cont.) Detailed explanation of all “exceptions”: HIV/AIDS Testing, Confidentiality & Discrimination: What You Need to Know About New York Law Available at Legal Action Center website, www.lac.org Click on free publications/HIV Legal Action Center
119. How are HIV Confidentiality Laws Enforced? Legal Action Center
120. Enforcement options File complaints with gov’t agencies who can require policy changes & training and impose fines: NYS Department of Health-AIDS Institute, Special Investigation Unit, (800) 962-5065 Hospitals: Centralized Hospital Intake Program 433 River Street, Suite 303 Troy, New York 12180 HIPAA: Office of Civil Rights (U.S. Dept. of Health & Human Services), www.ocr.gov Legal Action Center
121. Enforcement Options: Lawsuit – For violation of Article 27-F, can seek: Money for harm suffered Change in policies Training Legal Action Center
122. Enforcement Options: Lawsuit – But may not sue to enforce rights under HIPAA Filing complaint with Federal Office of Civil Rights is only option. Legal Action Center
123. Enforcement Options: For help, individuals may call – Legal Action Center: 212-243-1313 or 800-223-4044, or Another HIV legal service provider. Legal Action Center
124. Have questions? NYS Department of Health Confidentiality Hotline: 800-962-5065, or Legal Action Center ask for “attorney on call” 212-243-1313 or 800-223-4044 Legal Action Center
125. That’s it.Thank you! Legal Action Center Please complete the evaluation!
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