Hipaa Laws: Understanding Hospice Care Compliance And Privacy

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal program that mandates the creation of privacy standards for personally identifiable health information. HIPAA compliance for hospices is a complex area, as the rules regarding the disclosure of Protected Health Information (PHI) limit conversations with family members if patients have not given prior consent. This creates challenges when patients are unable to express their consent. Hospice providers must also ensure that volunteers, who are considered members of the workforce under the Privacy Rule, receive appropriate training on HIPAA and permissible disclosures of PHI. Furthermore, hospices must navigate restrictions on marketing and fundraising activities, as using patient names or images without informed consent is a breach of HIPAA. Understanding how HIPAA laws apply to hospice care is essential to protect patient privacy and ensure compliance with legal requirements.

Volunteers are considered members of the workforce and must be trained on HIPAA

Volunteers are considered members of the workforce and must receive HIPAA training. This is because volunteers may encounter protected health information (PHI) in visual, verbal, written, or electronic form.

HIPAA regulations define the workforce as:

> "employees, volunteers, trainees, and other persons whose conduct, in the performance of work for a covered entity or business associate, is under the direct control of such covered entity or business associate, whether or not they are paid by the covered entity or business associate."

HIPAA training is required to ensure that volunteers understand their responsibilities under HIPAA and are aware of the sanctions for failing to comply with the organization's HIPAA policies and procedures. The training should cover the basics of HIPAA, including what it is, whom it applies to, and what it protects. It should also address the specific policies and procedures of the hospice organization, including how to react to unauthorized uses and disclosures of PHI.

The frequency of HIPAA training for volunteers may depend on the organization's policies, the volunteer's role, and any changes to policies or procedures. It is important to provide ongoing training and updates to ensure compliance and address any gaps in knowledge.

Overall, by providing comprehensive and regular HIPAA training to volunteers, hospice organizations can ensure that volunteers understand their role in protecting patient privacy and maintaining the confidentiality, integrity, and availability of PHI.

Conversations with family members are limited without patient consent

The Privacy Rule governs how "covered entities" may use and disclose "protected health information" (PHI). PHI is any information that identifies an individual and relates to their past, present, or future physical or mental health condition, as well as related healthcare services. Under the Privacy Rule, conversations with family members about a patient's PHI are limited without the patient's consent.

There are, however, certain exceptions to this rule. A caregiver who is the individual's "personal representative" has the authority to act on behalf of the individual in making healthcare decisions and has the same rights of access to PHI. State law determines who has this authority, typically through health care advance directives or default surrogate decision-making laws.

Additionally, if the patient has given a valid HIPAA authorization or directed right to access, family members or friends involved in the person's healthcare or payment for healthcare may be able to access PHI. This access is permitted if the patient gives permission, is present and does not object, or is not present but the provider determines that sharing information is in the patient's best interest.

It is important to note that HIPAA does not cover volunteer hospice workers, and obtaining consent when the patient cannot express themselves is impossible. In such cases, conversations with family members about the patient's PHI may be further restricted.

Overall, HIPAA places significant limitations on conversations with family members about a patient's PHI without their consent, with a few specific exceptions outlined by the Privacy Rule and related regulations.

Marketing and fundraising activities are restricted

HIPAA's Privacy Rule defines "marketing" as "making a communication about a product or service that encourages recipients of the communication to purchase or use the product or service". Generally, if the communication is "marketing", then the communication can only occur if the covered entity first obtains an individual's "authorization". This definition of marketing has certain exceptions, such as when the communication is made to describe a health-related product or service (or payment for such product or service) that is provided by, or included in a plan of benefits of, the covered entity making the communication.

The Privacy Rule addresses the use and disclosure of protected health information for marketing purposes by:

• Defining what is "marketing" under the Rule
• Excepting certain treatment or health care operations activities from that definition
• Requiring individual authorization for all uses or disclosures of protected health information for marketing purposes with limited exceptions

The Privacy Rule also carves out exceptions to the definition of marketing under the following three categories:

• A communication is not "marketing" if it is made to describe a health-related product or service (or payment for such product or service) that is provided by, or included in a plan of benefits of, the covered entity making the communication.
• A communication is not "marketing" if it is made for treatment of the individual.
• A communication is not "marketing" if it is made for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual.

Any communication that meets the definition of marketing is not permitted, unless the covered entity obtains an individual's authorization. If the marketing involves direct or indirect remuneration to the covered entity from a third party, the authorization must state that such remuneration is involved. A communication does not require an authorization, even if it is marketing, if it is in the form of a face-to-face communication made by a covered entity to an individual, or a promotional gift of nominal value provided by the covered entity.

In addition, HIPAA compliance for hospices means complying with the administrative, physical and technical safeguards of the Security Rule, as well as restrictions on marketing and fundraising activities.

Patients have the right to request restrictions on the use/disclosure of their PHI

Patients have the right to request restrictions on the use and disclosure of their PHI (Protected Health Information). This is a key part of the HIPAA Privacy Rule, which was established to protect the privacy of individually identifiable health information. Patients can request that a covered entity (health plans, health care clearinghouses, or health care providers that conduct standard electronic transactions) restrict the use or disclosure of their PHI for treatment, payment, and healthcare operations. While covered entities must allow individuals to make these requests, they are not required to agree to the restrictions in most cases.

There are two scenarios in which a covered entity must agree to a patient's request to restrict the disclosure of their PHI to a health plan:

• The disclosure is for payment or health care operations and is not otherwise required by law.
• The PHI is pertinent to a health care item or service that the individual or another person has paid for in full.

If a covered entity agrees to a patient's request to restrict the use or disclosure of their PHI, they must comply with the agreed-upon restriction unless the patient requires emergency treatment. In this case, PHI can be disclosed to another healthcare provider for the purpose of treating the patient. However, the disclosing provider must request that the emergency treatment provider does not use or disclose the information beyond what is necessary for providing emergency treatment.

It is important to note that patients do not have the right to restrict the use or disclosure of their PHI for workers' compensation purposes as required by law. Additionally, patients can terminate a restriction on the use or disclosure of their PHI by providing written or oral agreement, which must be documented by the covered entity.

Patients have the right to request an accounting of disclosures of their PHI

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) grants patients the right to request an accounting of disclosures of their Protected Health Information (PHI). This means that patients can ask for a report detailing all the times their PHI has been shared with others. This is one of the individual rights protected by HIPAA, along with the right to access medical records and other information, request changes or amendments to their PHI, and request restrictions on the use and disclosure of their PHI.

PHI is defined as any information that identifies an individual and relates to their physical or mental health, the health care provided to them, or the payment for that health care. This can include information in electronic, paper, or oral form. The HIPAA Privacy Rule requires covered entities, such as health plans and health care providers, to protect the privacy of PHI. Covered entities must take reasonable steps to ensure the privacy of PHI and inform individuals about their privacy rights.

There are some exceptions to the requirement for covered entities to provide an accounting of disclosures. For example, disclosures made to carry out treatment, payment, or health care operations do not need to be included in the accounting. Disclosures made to the patient or their personal representative, or those that are incidental to a permitted use or disclosure under HIPAA, are also exempt. Additionally, disclosures made to persons involved in the patient's care or as part of an inpatient directory, or pursuant to an authorization for the release of information, are not required to be tracked.

Covered entities must respond to a request for an accounting of disclosures within 60 days, although this deadline can be extended by 30 days if necessary. Patients have the right to receive this information in writing and to file a complaint if they believe their privacy rights have been violated.

Frequently asked questions