HIPAA Guidance for the Health Care Professional in light of Recent Tragedy

http://www.hhs.gov/ocr/office/lettertonationhcp.pdf

The above letter written and distributed by the Department of Health and Human Services on January 15, 2013, reminds us all that health care providers may make certain disclosures regarding otherwise protected patient information.

When confronted with a good faith belief that a serious and imminent threat to the health and safety of the patient or others exists, health care providers may alert persons believed to be able to prevent or lessen the threat.

In light of recent events, the takeaway from this HHS letter is that a warning can go a long way.

If you require the assistance of a Washington D.C. area health care lawyer with expertise in HIPAA rules and regulation, please contact the Strisik Law Firm today.

Do You De-Identify?

$1,000,000

$500,000

$2,500,000

$250,000

The above represent a short list of penalties imposed within the last year by the U.S. Department of Health and Human Services on covered entities (health care providers, insurers, and others) who have breached the HIPAA Privacy Rule by disclosing a patient’s individually identifiable health information.  Just Google “HHS HIPAA Fines” and the results will be staggering.

Bad publicity, costly fines and lengthy litigation can be avoided when information about a patient is de-identified prior to disclosure.

Under the HIPAA Privacy Rule, information can be De-Identified so that the information itself is no longer individually identifiable.  The key is the “individual” component of this equation:  de-identified informatio can be used and disclosed for a wide variety of purposes without getting the health care entity in hot water with the government.

Health care entities must question the manner in which they obtain, use and disclose information pertaining to their patients.  In order to avoid costly litigation and penalties, health care entities should note the following:

1.  The law allows de-identified personal information about a patient to be disclosed;

2.  The law does not provide a privacy or monetary interest for an individual whose information has been de-identified prior to disclosure; and

3.  HIPAA contains guidance as to the appropriate manner in which personal information is de-identified; as long as those rules are followed, the Courts in the U.S. cannot intervene.

Learning how to properly de-identify patient’s personal information in today’s litigious society is crucial.  The benefits include avoidance of fines, lawsuits and negative publicity.

 

Don’t Overlook the Office Lease!

“I agreed to what?!”

“I did not realize I could negotiate.”

“We did not view our lease as an asset.”

Do any of the above sound familiar?  Today’s office lease is one of the practitioner’s greatest assets.  When reviewed, analyzed, negotiated and executed properly, one easily see how an office lease will add to the value of the practice.  Unfortunately, far too many practitioners find themselves wishing they took the time to have a skilled attorney review their office lease prior to signing.

The result?  Anywhere between 10 and 20 practitioner-unfavorable provisions that impact the value of their practice.

Chances are, if your lease was written prior to 1980, there are mutually beneficial provisions for landlord and tenant.  Over the last 30 years, landlord attorneys have creatively changed the office space landscape.

Our court system may or may not help.  Some state courts will draw the proverbial line in the sand, that is, to protect tenants from placing their signature onto an unfavorable lease.  But for every tenant friendly state, there is an equal and opposite landlord friendly state that will seek to protect the law of the contract.

How to protect against the unknown?  Have a qualified attorney review and negotiate your office lease.


Some of the more obvious clauses your professional practice attorney should review include
:

1.  Term & Termination – the length of the lease and renewal options, including notice provisions

2.  Recapture – allows the landlord to terminate a lease if the practitioner asks for an assignment or sublet

3.  Extension (“Personal Option”) – allows only the practitioner to renew; making it personal to the practitioner-only

4.  Assignment/Sublet – crucial when the practice wants to expand, space-share, or sell

The following are some “must” review aspects of a lease to avoid impacting the value of the practice:

1.  Exclusivity – allows the space to continue to be rented to a medical/dental practitioner only

2.  Premises Damage or Repairs & Maintenance – these sections are often laden with ways in which a landlord can get “out” of making timely repairs that will affect the ongoing activity of the practice

3.  Release of Liability – should be examined to determine whether personal liability will be extended beyond the lease term

4.  Use and Care of Premises – if not filled-in appropriately, this allows a landlord to recoup for any unauthorized use

5.  Subordination, Non-Disturbance and Attornment – these clauses outline and define the relationship between lenders to the landlord (current and future) and how the tenant may be affected if the lender ever forecloses on the property

6.  Hold-over – a penalizing clause that defines the period when a current lease ends and prior to the negotiation of a new lease.  Miscalculations of the time it may take to build out a new practice space  (and thus, not allowed to occupy a new space) are one  reason why this clause must be favorable to the practitioner.

The 10 examples above are some common provisions found in today’s medical/dental office lease.  Far too often these provisions leave a practitioner without recourse when they are accepted as-is.   The danger is compounded when the lease is being negotiated by a new medical practitioner – who may be stuck with unfavorable clauses to begin her career.

An attorney qualified to represent professional practices clients can review and negotiate the most practitioner-tenant friendly provisions on your behalf.  The result of such work will be the protected value of your practice.

 

Dentists, Doctors, their Staff, and Social Media

Does your practice have an effective and up-to-date compliance plan?

The provisions regarding Social Media must be looked at closely in light of recently issued guidance from the National Labor Relations Board (NLRB).

As background, what health care providers and their staff are working to avoid, first and foremost, is dissemination of confidential patient information.  More particularly, protected health information (PHI), which includes any one of eighteen categories of one’s health, treatment, or payment that individually identifies the person.

To be individually identifiable, there must be a reasonable basis to believe the information can be used to identify the individual.   This includes:

  • Names;
  • Addresses;
  • Date of birth;
  • Telephone numbers;
  • Fax numbers;
  • Email addresses;
  • Social Security Numbers;
  • Medical records;
  • Account numbers;
  • VIN numbers and license plates;
  • Web addresses;
  • IP addresses;
  • Fingerprints and voice prints;
  • Photographic images;
  • Any other unique identifying numbers, characteristics or codes.

Why, then, is there a slippery slope when it comes to Social Media policies?

In summary, the NLRB tells us as practitioner-employers, we must not infringe upon or chill our employee’s right to discuss the terms and conditions of employment, whether inside or outside of the practice (including families, friends, and third parties).

Social Media policies, therefore, cannot be overly broad or unduly restrictive.  They must contain specific examples of the restricted use of Social Media in the context of the practice.  For example, a practitioner may want to make it clear in her practice policies and procedures that “Social Media usage may never include any reference to a patient of the practice” and provide numerous real-life limiting examples (using some of the 18 factors listed above)  of how Social Media can be damaging to the practice.

For the practitioner, keep in mind under the National Labor Relations Act, it is an unfair labor practice act to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7…of the NLRA.”

All the reason why a clear and effective compliance plan is crucial to your practice.  If ever in doubt as to the effectiveness your policies and procedures may have on your employees and to an outside party, including the NLRB, seek qualified advice and counsel from a health lawyer.