HIPAA Privacy Rule Modified to Permit Covered Entities to Make Certain Limited Disclosures to the National Instant Criminal Background System

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by Teresa Locke, Holland & Hart LLP

On Tuesday, January 6, 2016, the U.S. Department of Health and Human Services (the Department) issued a final rule, effective February 5, modifying the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to expressly permit – but not require – certain HIPAA covered entities to disclose to the National Instant Criminal Background System (NICS) certain personal health information (PHI) related to individuals who are subject to a Federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm. Among the persons subject to the Federal mental health prohibitor established under the Gun Control Act of 1968 and implementing regulations issued by the U.S. Department of Justice are individuals who have been: (a) involuntarily committed to a mental institution; (b) found incompetent to stand trial or not guilty by reason of insanity; or (c) otherwise determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease. Fearing that States might not be fully reporting relevant information to the NCIS because of actual or perceived barriers related to HIPAA, the Department enacted the revision to the Privacy Rule by adding a new category of permitted disclosures to 45 CFR 164.512(k). The new rule is narrowly tailored to appropriately balance public safety goals with important patient privacy interests to ensure that individuals are not discouraged from seeking voluntary treatment for mental health issues.

The new category of permitted disclosures is very limited in scope, applying only to a specific subset of HIPAA covered entities who, under narrow circumstances, may provide discrete personal health information to the NICS. Specifically, the new rule is limited in three ways. First, it applies only to covered entities involved in ordering involuntary commitments or other adjudications that make an individual subject to the Federal mental health prohibitor. It does not apply to disclosures about individuals who are subject to state-only mental health prohibitors. Moreover, the Federal mental health prohibitor does not apply to individuals in a psychiatric facility for observation or who have been admitted voluntarily. Thus, the new rule does not create a permission for most treating providers to disclose PHI about their own patients for these purposes. The Department recognized that encouraging voluntary treatment is critical to ensuring positive outcomes for individuals’ health as well as the public’s safety. The new rule was designed to balance that goal with public safety interests served by the NICS. Read more

Responding to HIPAA Breaches

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by Kim C. Stanger, Holland & Hart LLP

HIPAA privacy and security breaches can result in fines of $100 to $50,000 to covered entities (including healthcare providers and health plans) and their business associates. (45 CFR 160.404). If the violation resulted from “willful neglect”, the Office for Civil Rights (“OCR”) must impose a mandatory fine of $10,000 to $50,000. (45 CFR 160.404). To make matters worse, covered entities and their business associates must self-report breaches of unsecured protected health information (“PHI”) to the affected individual and to HHS (45 CFR 164.400); failure to do so may constitute “willful neglect” resulting in additional fines. The good news is that the OCR may not impose a fine so long as the covered entity or business associate did not act with “willful neglect” and corrected the problem within 30 days. (45 CFR 160.410(b)).

Responding to Possible Breaches. Given the potential consequences, it is critical that covered entities and business associates respond appropriately to potential HIPAA breaches to avoid or minimize their liability. Below are steps that you may follow to help you identify and timely respond to HIPAA breaches. Read more

Complying With HIPAA: A Checklist for Business Associates

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by Kim C. Stanger, Holland & Hart LLP

The HIPAA Privacy, Security, and Breach Notification Rules now apply to both covered entities (e.g., healthcare providers and health plans) and their business associates. A “business associate” is generally a person or entity who “creates, receives, maintains, or transmits” protected health information (PHI) in the course of performing services on behalf of the covered entity (e.g., consultants; management, billing, coding, transcription or marketing companies; information technology contractors; data storage or document destruction companies; data transmission companies or vendors who routinely access PHI; third party administrators; personal health record vendors; lawyers; accountants; and malpractice insurers).1 With very limited exceptions, a subcontractor or other entity that creates, receives, maintains, or transmits PHI on behalf of a business associate is also a business associate.2 To determine if you are a business associate, see the attached Business Associate Decision Tree.

Business associates must comply with HIPAA for the following reasons: Read more

HIPAA and Records of Deceased Persons

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by Kim C. Stanger, Holland & Hart LLP

The HIPAA privacy and security rules generally apply to protected health information of deceased persons as well as the living. Providers may generally use or disclose such information as follows:

1. Treatment, Payment, or Operations. As with living persons, HIPAA allows providers to use or disclose protected health information of deceased persons for purposes of treatment, payment, or the provider’s healthcare operations, unless the provider has agreed otherwise. (See 45 CFR 164.506 and 164.522(a)). This may include treatment of other living relatives. As the Office for Civil Rights (OCR) explained, “disclosures of protected health information for treatment purposes—even the treatment of another individual—do not require an authorization; thus, a covered entity may disclose a decedent’s protected health information, without authorization, to the health care provider who is treating the surviving relative.” (OCR FAQ, available here). Read more

HIPAA: Disclosing Exam Results to Employers

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Physicians and other providers are often paid by employers to conduct drug tests, fitness-for-duty or return-to-work exams, or employment physicals for employees. In such circumstances, the physician may mistakenly assume that they may disclose the test and exam results to the employer without the patient’s authorization, but that is not correct.

As with any other protected health information, physicians and other providers generally need the patient’s written, HIPAA-compliant authorization to disclose exam results to the employer. (45 CFR 164.508(a); see also 65 FR 82592 and 82640). However, unlike other treatment situations, a provider may condition the performance of an employee physical or test on the patient’s provision of an authorization, i.e., the provider may refuse to perform the exam unless the patient executes a valid authorization. (45 CFR 164.508(b)(4)(iii); 65 FR 82516 and 82658). In addition, the employer may condition the employee’s continued employment on the provision of the exam results (at least under HIPAA), thereby creating an incentive for the employee to execute the authorization. (65 FR 82592 and 82640). The foregoing rules also apply when the health care provider is the employer, e.g., when a hospital employee receives treatment or tests at the hospital. In those situations, the hospital/employer generally may not access or use the patient/employee’s health information for employment-related purposes without the patient’s written authorization. (67 FR 53191-92). Read more