HIPAA Privacy Rules: What’s Important to Know to Protect Your Patients, Yourself, and Your Institution

1. HIPAA Privacy Rules: What’s Important to Know to Protect Your Patients, Yourself, and Your Institution Office of Compliance Brody School of Medicine ECU HIPAA Privacy Office

2. Overview • Background and General Information • Use and Disclosure of Protected Health Information • Patients Rights under HIPAA • Security Breach Notification Requirements • Penalties and Enforcement under HIPAA • ECU HIPAA Privacy Violation Levels and Sanctions • ECU Privacy Basics

3. Background and General Information

4. Background and General Information • HIPAA is a federal law which established a minimum level of privacy protections related to “protected health information” (PHI) • Congress felt that additional privacy and security protections were necessary once transmission of health claims and other health information became uniform and electronic • Required compliance with HIPAA became effective on April 14, 2003

5. Background and General Information • What is Protected Health Information (PHI)? • Information that is created or received by the covered entity; • Covered entity – Health plans; health care clearinghouse; and health care providers • Hybrid entity – A single legal entity that is a covered entity, performs business activities that include both covered and noncovered functions, and designates its health care components as provided in the Privacy Rule. If a covered entity is a hybrid entity, the Privacy Rule generally applies only to its designated health care components. However, nonhealth care components of a hybrid entity may be affected because the health care component is limited in how it can share PHI with the non-health care component. • ECU is a hybrid entity with designated health care components • Relates to past, present or future physical or mental health or condition of the individual, or related to payment for health care; and • Identifies the individual or provides a reasonable basis to be used to identify the individual • includes all personal demographic & health information • Can be in any form: • Verbal, written or electronic

6. Background and General Information Identifiers • Name • Geographic location • Street address, city, county, precinct, zip code, • Dates • DOB, date of death, admission/discharge/treatment date • Phone/fax numbers • E-mail address • SSN • Medical record number • Health plan beneficiary numbers • Account numbers • Certificate/license numbers • Vehicle identifiers and serial numbers • Including license plates • Device identifiers and serial numbers • URLs • IP • Biometric identifiers, including finger and voice prints • Full face photographic images and any comparable images • Any other unique identifying numbers, characteristic, or code

7. Background and General Information • The American Recovery and Investment Act of 2009 (ARRA) • Drastically modified certain provisions under HIPAA including: • Heightened Enforcement • Increased penalties • Periodic audits for compliance • Security Breach Notification Requirements • Increased Restrictions on Use and Disclosure of PHI • Additional Rights for Patients • Copies of PHI in electronic format • Cannot disclose PHI to health plan if patient paid in full “out of pocket”

8. Test Your Privacy Knowledge #1 • Which of the following pieces of information is permissible to discuss with a friend or family member? a) The mutual friend who came to your facility b) The patient you cared for with a highly unusual set of symptoms but without stating the patient’s name c) The prominent politician who is a patient at your facility d) The high number of heart disease patients you have seen this week e) The patient you cared for who lives on your block

9. Test Your Privacy Knowledge #1 • Answer - d • It is acceptable to talk about general trends but not about specific patients

10. Use and Disclosure of PHI

11. Use and Disclosure of PHI HIPAA Authorization • In general, required for any use or disclosure of PHI • Special type of authorization that is separate from the general consent for treatment • Must be in writing and include specific elements • Patient must receive a copy and is permitted to revoke authorization at any time in writing. • Typical uses include: • Research at a covered entity • Patient’s request to release PHI to an outside entity or individual • Release of employment-related examination information • Psychotherapy notes and other sensitive conditions • Certain fundraising or marketing activities (that are not exempt from the authorization requirement)

12. Use and Disclosure of PHI • Broad exception for “treatment, payment or health care operations” • “Treatment” • Providing information to other providers involved in the care of the patient (e.g., other nurses, doctors, lab personnel, etc.) • Does NOT allow for disclosure of psychotherapy notes and other types of sensitive conditions (i.e., HIV status); separate consent required to release that type of information • “Payment” • Submission of claims for services to third party payors • Collection activities • “Health care operations” • Using and disclosing PHI for quality assurance reviews, internal auditing, peer review, outside lawyers, accountants, etc. • Research is not considered to be health care operations

13. Use and Disclosure of PHI • Examples of Exceptions to the Authorization Requirement • Law enforcement purposes • Judicial and administrative proceedings (per court order or subpoena) • Health oversight agencies (e.g., HHS) • Certain public health activities (e.g., CDC, public health departments, tracking of FDA recalls, reporting of adverse events during research)

14. Use and Disclosure of PHI • Disclosure of PHI to Patient’s Family and Others Involved in Care • May disclose PHI directly relevant to such person’s involvement in the care • May disclose PHI to notify a family member, a personal representative or others involved in the patient’s care of: • Patient’s location, general condition, or death • If the patient is present: • Obtain the patient’s agreement to involve family members or others • If patient is not present or otherwise incapacitated: • Exercise of professional judgment to determine whether the disclosure is in the best interests of the individual, and, if so, disclose only the PHI that is directly relevant to the person’s involvement with the individual’s care

15. The Minimum Necessary Requirement 45 C.F.R 164.502 (b) and 164.514 (d)

16. Test Your Privacy Knowledge #2 • PHI may be disclosed without authorization or waiver to government agencies as required by law. • True • False

17. Test Your Privacy Knowledge #2 • Answer – a) True • For example – child abuse and neglect reporting to health authorities

18. Use and Disclosure of PHI • “Minimum Necessary” Rule • In general, the amount and types of PHI used or disclosed is restricted to the minimum amount of PHI necessary to satisfy the request. • “Reasonable efforts” must be taken not to disclose more than the minimum amount of PHI necessary to accomplish the intended purpose. • Does not apply in disclosures for treatment purposes to other providers or for release of PHI to patient pursuant to their own authorization.

19. Test Your Privacy Knowledge #3 • You are a billing clerk and routinely look at medical records to know if laboratory tests are performed. Are you permitted to view the results of the lab tests? • Yes • No

20. Test Your Privacy Knowledge #3 • Answer – b) No • Viewing the results would exceed the scope of job duty for the billing clerk.

21. Use and Disclosure of PHI • Contacting Patients • Make every effort to speak to patient directly • Never leave voice messages containing information regarding condition, test results, etc. • If you must leave a message, leave your name, ECU Physicians, and your phone number only. Do not state the reason for the call.

22. Use and Disclosure of PHI • Verification of Identity of Individual Requesting PHI by Phone • Reasonable efforts must be made to verify identity of caller or individual requesting PHI • Reasonable questions include knowing certain personal information regarding patient, such as DOB, maiden name, etc. (not easy to find information such as telephone number, address, etc.)

23. Use and Disclosure of PHI • Incidental Disclosures • Those types of disclosures are not protected under HIPAA • Disclosures that occur even after proper safeguards have been taken • Examples: Waiting room sign-in sheets, calling out a patient’s last name in waiting room (e.g., Mr. Smith and Mrs. Jones), shared hospital rooms, teaching rounds

24. Use and Disclosure of PHI • After review and approval, de-identified information can be used if 18 specific identifiers are removed from the information such as: • Names • All geographic subdivisions smaller than a State including address, city, county, zip code • All elements of dates except year that relate to health care treatment including age • Telephone numbers, fax numbers, email addresses • Numbers – SSN, MRN, health plan beneficiary, account, certificate/licenses, vehicle ID and serial, device ID and serial • URLs or IP numbers • Fingerprints, full face photos, or other comparable images • Any unique identifying number, code, or characteristic

25. Use and Disclosure of PHI • Commonsense Safeguards • Do not discuss patient information in hallways, elevators, restaurants, or other public places where others may overhear your conversation • Never post or share information about a patient on social media sites • Do not access any medical record or other PHI unless you have a legitimate business or patient care purpose • For example, never access a medical record or other PHI to learn of a friend’s condition, birth date, status of newly delivered baby, etc.

26. Use and Disclosure of PHI • Commonsense Safeguards • Never share your EMR password with anyone for any purpose • Faxes: Verify fax numbers prior to sending PHI, use an approved fax cover sheet, and ask if someone will be waiting for the information (especially if you do not know the location of the fax machine) • Computer screens: To the extent possible, turn away from visitors, use a privacy screen, etc.; always lock computer when leaving workstation if you are viewing PHI

27. Designated Shred Containers

28. Designated Shred Containers • If a container is marked “Confidential”, “Not Trash”, or “Shred” then it is for shred material only. • Do not empty these containers.

29. Test Your Privacy Knowledge #4 • You can post information about a patient on a social media site as long as your settings are set to friends/private? a) True b) False

30. Test Your Privacy Knowledge #4 • Answer – b) False • You should never post or share information about a patient on social media sites

31. Patient Rights under HIPAA

32. Patient Rights under HIPAA • Right to Access PHI • Patients may request to receive a copy of their medical record • Request must be in writing using approved form • Requests may be denied in certain circumstances • ECU employees are not permitted to access their own PHI without first going through Health Information Systems Services

33. Patient Rights under HIPAA • Patients may Request an Accounting of Disclosures of their ECU maintained PHI which has been made during the past six years • Patients are permitted to request a listing showing to whom their PHI has been disclosed • Does not include disclosures made for treatment, payment, or health care operations; disclosures made pursuant to patient’s own authorization or disclosures prior to April 14, 2003 (effective date of rule) • Does not include disclosures made for national security or intelligence purposes, or law enforcement purposes

34. Patient Rights under HIPAA • Right to Confidential and Alternative Communications • Patients have the right to request the method whereby they will be contacted (e.g., what telephone number, location, etc.) • Any requests to communicate PHI by alternate means must be submitted in writing using the ECU Request for Alternate Communication Form

35. Patient Rights under HIPAA • Right to Further Restrict Disclosure of PHI • Patients may request that their PHI not be disclosed in a certain manner, even if it is permitted under HIPAA • Common requests include no disclosure for fundraising purposes (institutions are otherwise permitted to use minimal PHI for fundraising purposes), no disclosure to certain government agencies, or certain family members • Requests must be made in writing using ECU’s Request for Restriction on the Use and Disclosure of PHI Form • ECU may accept or decline request

36. Patient Rights under HIPAA • Right to Request Amendment to Medical Record • Patients may request a correction to the medical record • Provider is not required to amend; however, must notify patient regarding decision • Typically happens with sensitive types of conditions: Obesity, mental illness conditions, etc.

37. Patient Rights under HIPAA • Complaints about Privacy and Security Practices • Any individual may file a complaint regarding suspicion of a potential privacy violation • Individuals may file privacy complaints with: • ECU Privacy Officer 744-5200 • BSOM Compliance Hotline (866) 515-4587 • The United States Office for Civil Rights • No intimidation or retaliatory actions taken against any individual making a complaint

38. Security Breach Notification Requirements

39. Security Breach Notification Requirements • First federal notification law established under ARRA • For breach of any “unsecured PHI,” the covered entity is required to notify within 60 days each individual whose PHI has been accessed, acquired or disclosed as a result of such breach. • Annual disclosure requirement to HHS regarding all notifications • If breach involves 500 or more individuals, notice to HHS must be immediate; “prominent” local media must also be notified. • Excludes certain inadvertent or unintentional disclosures

40. Penalties and Enforcement under HIPAA

41. Penalties under HIPAA • Privacy Rule Enforcement Highlights from Health and Human Services (HHS) & Office of Civil Rights (OCR) • 92,975 HIPAA complaints received from April 2003 through February 2014 • 94% have been resolved through: • Investigation and enforcement (22,222) • Investigation and finding no violation (10,005) • Closure of cases not eligible for enforcement (54,944) • OCR lacks jurisdiction under HIPAA • Complaint is untimely, withdrawn, or not pursued by filer • Activity described does not violate the rules

42. Penalties under HIPAA • OCR Most Frequent Compliance Issues • in order of frequency: • Impermissible use and disclosure of PHI • Lack of safeguards of PHI • Lack of patient access to PHI • Violation of “minimum necessary” rule • Lack of administrative safeguards of electronic PHI • OCR has referred 522 cases to the Department of Justice for criminal investigation

43. Penalties under HIPAA Civil Penalties

44. Penalties under HIPAA Criminal Penalties

45. ECU HIPAA Privacy Violation Levels & Sanctions

46. ECU HIPAA Privacy Violation Levels & Sanctions • Under HIPAA, ECU is required to have and apply internal sanctions against its workforce who fail to comply with its policies and procedures • Specific internal sanctions are outlined in East Carolina University Privacy Regulation: HIPAA Sanctions http://www.ecu.edu/cs-dhs/hipaa/privacy/policies.cfm

47. ECU HIPAA Privacy Violation Levels & Sanctions • Violation Level 1 • Failure to demonstrate appropriate care • Examples: • Failing to log off a computer • Leaving PHI in a non-secure location • Inappropriate hallway conversation

48. ECU HIPAA Privacy Violation Levels & Sanctions • Violation Level 2 • Intentional or unintentional exposure of PHI internally • Unauthorized access to PHI • Repeated Level 1 violations • Examples: • Providing passwords to unauthorized users • Accessing PHI for which you have no job duty

49. ECU HIPAA Privacy Violation Levels & Sanctions • Violation Level 3 • Intentional or unintentional exposure of PHI internally or externally • Repeated Level 2 violations • Examples: • Sharing PHI with unauthorized individuals • Failing to perform necessary actions to prevent disclosure • Disclosing PHI external to ECU’s designated health care components

50. ECU HIPAA Privacy Violation Levels & Sanctions • Violation Level 4 • Intentional abuse of PHI • Examples: • Large scale disclosure • Use for personal gain • Destroying PHI