Kara Sears
The US Health Insurance Portability and Accountability Act (HIPAA) of 1996 sets out federal standards to protect the security and integrity of electronic Protected Health Information (ePHI). The Privacy Rule within HIPAA mandates that all medical centres and their staff comply with its provisions, and the costs of doing so have been significant. The Sunshine Act, or the Physician Payments Sunshine Act, requires reporting on payments and items of value given to physicians, teaching hospitals, and other medical professionals. It is not clear whether HIPAA limits what can be disclosed under the Sunshine Act, but the two pieces of legislation do overlap in their requirements for reporting and privacy.
| Characteristics | Values |
|---|---|
| Purpose | To ensure the security of electronic PHI (ePHI) and safeguard the confidentiality, integrity and availability of health information |
| Applicability | All medical centers and practices in the US |
| Covered Entities | Healthcare providers, clearinghouses, healthcare plans |
| Workers' Compensation | Covered entities may disclose protected health information to comply with workers' compensation laws and similar programs for work-related injuries or illnesses |
| Limited Data Set | Protected health information with certain direct identifiers removed; can be used for research, healthcare operations and public health purposes with a data use agreement |
| Personal Representatives | Covered entities must treat personal representatives the same as individuals with respect to use and disclosure of protected health information |
| Research Purposes | Covered entities can use and disclose protected health information for research without individual authorization, provided they obtain documentation or representations from the researcher |
| Notification | Covered entities may disclose protected health information to notify family members, personal representatives or those responsible for an individual's care of their location, general condition or death |
| Incidental Disclosure | The Privacy Rule permits incidental use and disclosure of protected health information as long as reasonable safeguards are adopted and information shared is limited to the "minimum necessary" |
| Training | Comprehensive training in HIPAA is essential for healthcare professionals to understand the risks of violations; documentation and record-keeping of training sessions are important for compliance investigations |
| Sunshine Act Compliance | Reporting entities unsure about compliance with the Sunshine Act should seek independent advice; the Act includes penalties for non-compliance, including civil monetary penalties |
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What You'll Learn
Workers' compensation
The Health Insurance Portability and Accountability Act (HIPAA) was enacted in 1996 to protect an individual’s right to privacy regarding their medical information. It regulates the use and disclosure of protected health information by covered healthcare entities. While HIPAA does not fully apply to workers' compensation, it does permit disclosures of protected health information for workers' compensation purposes.
When it comes to workers' compensation claims, there are valid concerns about the privacy of medical treatment. The HIPAA Privacy Rule does not apply to employers, workers' compensation insurers, or administrative agencies, except to the extent that they may otherwise be covered entities. If an employee suffers a work-related injury or illness, these entities need access to the employee's health information to process claims, coordinate healthcare, and arrange compensation.
In such cases, healthcare providers can share protected health information with workers' compensation insurers and other entities involved in workers' compensation systems, but only with the individual's authorization. This authorization must meet certain requirements, and the individual has the right to review and approve the types of information disclosed and the purposes for which it will be used.
It is important to note that covered entities are required to reasonably limit the amount of protected health information disclosed to the minimum necessary to accomplish the workers' compensation purpose. This includes information about the injury, diagnosis, treatment, and work-related restrictions.
Additionally, employers and healthcare providers must make a reasonable effort to limit the sharing of medical information to what is essential for the workers' compensation case. Any party that handles protected health information must maintain confidentiality and adhere to HIPAA disclosure requirements. This includes the doctor and medical staff treating the work-related injury, personal care providers, administrative staff, and other employees involved in medical treatment and confidential record-keeping.
It is recommended to consult an attorney if there are concerns about privacy rights in a workers' compensation case, as the laws and requirements can be complex and nuanced.
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Limited data sets
A limited data set is a set of identifiable healthcare information that the HIPAA Privacy Rule permits covered entities to share with certain entities for research, public health activities, and healthcare operations without obtaining prior authorization from patients, provided certain conditions are met.
The first condition is that the purpose of the disclosure must be for research, public health, or healthcare operations. Secondly, the entity receiving the information must sign a data use agreement, which must be done prior to the sharing of the limited data set. This agreement must outline the permitted uses and disclosures of the data, prohibit the recipient from using or disclosing the information except as permitted by the agreement or law, and require the recipient to use appropriate safeguards to prevent impermissible use or disclosure. The agreement must also state that any subcontractors who require access to the data must also enter into a data use agreement and agree to comply with its requirements.
The content of a limited data set is still subject to HIPAA Privacy Rule standards for uses and disclosures. The data set must not contain any of the following identifiers: names (including those of relatives, employers, and household members), street addresses, or postal address information (except for town/city, state, and zip code). However, it may include the town, city, or state of the individual, their gender, and dates relating to the individual.
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Personal representatives
The HIPAA Privacy Rule establishes a foundation of federally protected rights, which allow individuals to control the uses and disclosures of their protected health information (PHI). This includes the right to access and amend this information, and the right to an accounting of certain disclosures.
Under the Privacy Rule, an individual's personal representative is someone authorized under State or other applicable law (e.g. tribal or military law) to act on behalf of the individual in making healthcare-related decisions. This includes the right to receive a copy of the individual's PHI and to direct a covered entity to transmit a copy of the PHI to another person or entity, upon request. This right is also extended to parents or guardians of minors, who are usually the personal representatives of their children and can, therefore, access their medical records. However, the Privacy Rule defers to State or other laws that expressly address the ability of the parent to obtain this information.
In the case of deceased individuals, the personal representative is an executor, administrator, or other persons who have the authority under State or other laws to act on behalf of the deceased or their estate. This personal representative has the right to access all of the protected health information of the deceased individual relevant to their responsibilities.
The Privacy Rule also permits covered entities to share information with a family member or other persons involved in an individual's care or payment for care, as long as the individual does not object. This includes sharing the location and general condition of the patient.
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Incidental use and disclosure
The HIPAA Privacy Rule permits certain incidental uses and disclosures of protected health information (PHI) when the covered entity has in place reasonable safeguards and minimum necessary policies and procedures to protect an individual’s privacy. An incidental use or disclosure is a secondary use or disclosure that cannot reasonably be prevented, is limited in nature, and occurs as a result of another use or disclosure that is permitted by the Rule. For example, a hospital visitor may overhear a provider’s confidential conversation with another provider regarding the care of a patient they are both treating. In this case, the primary use or disclosure of PHI is the communication between the providers, which is permitted under the HIPAA Privacy Rule as it relates to patient treatment.
Reasonable safeguards will vary from covered entity to covered entity depending on factors such as the size of the covered entity and the nature of its business. Covered entities should analyze their own needs and circumstances, assess the potential risks to patients’ privacy, and consider the potential effects on patient care. They may also consider other issues, such as the financial and administrative burden of implementing particular safeguards.
The minimum necessary standard requires that a covered entity limit who within the entity has access to protected health information, based on who needs access to perform their job duties. For example, a physician is not required to apply the minimum necessary standard when discussing a patient’s medical chart information with a specialist at another hospital. However, if a hospital employee is allowed to have routine, unimpeded access to patients’ medical records, where such access is not necessary for their job, the hospital is not applying the minimum necessary standard. Therefore, any incidental use or disclosure that results from this practice, such as another worker overhearing the hospital employee’s conversation about a patient’s condition, would be an unlawful use or disclosure under the Privacy Rule.
To summarize, incidental uses and disclosures of PHI are permitted under the HIPAA Privacy Rule as long as the covered entity has implemented reasonable safeguards and the minimum necessary standard to protect individuals' privacy. However, it is important to note that incidental disclosures that occur as a result of a failure to apply these standards are not permitted under the Privacy Rule.
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Training and compliance
HIPAA establishes federal standards to protect sensitive health information from disclosure without a patient's consent. The HIPAA Privacy Rule, implemented by the US Department of Health and Human Services (HHS), sets national standards for the use and disclosure of individuals' protected health information (PHI) by covered entities. Covered entities include healthcare providers, manufacturers, distributors, and Group Purchasing Organizations (GPOs). HIPAA also permits covered entities to use or disclose psychotherapy notes for their own training and to defend themselves in legal proceedings.
The Sunshine Act, passed in 2010, aims to increase transparency in the financial relationships between pharmaceutical companies, device manufacturers, and GPOs, and healthcare providers. It requires these entities to report payments and items of value exceeding $10 given to physicians and teaching hospitals. This includes both direct and indirect payments. The Centers for Medicare and Medicaid Services (CMS) implemented the Open Payments program to manage the annual reporting of these disclosures, making the data publicly accessible.
Compliance with HIPAA and the Sunshine Act is crucial to avoid severe civil and financial penalties. Healthcare professionals must receive comprehensive training in HIPAA principles, including secure data transmission, mobile device protocols, and breach prevention. The documentation of HIPAA training sessions is important for record-keeping and demonstrating compliance during investigations. Refresher training is also necessary when there are material changes to policies and procedures.
To improve compliance, healthcare teams should adopt a multifaceted approach, fostering interprofessional education and collaboration. Regular risk assessments, continuous audits, and clear policies on access and data use are essential. Collaborative strategies, such as secure communication platforms and shared training modules, can help ensure consistent adherence to HIPAA while maintaining efficient workflows.
In summary, training and compliance are critical aspects of HIPAA and the Sunshine Act. By providing comprehensive training, fostering collaboration, and implementing robust compliance measures, healthcare entities can protect sensitive health information, maintain transparency in financial relationships, and avoid legal penalties.
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