October 24, 2023

To BAA or Not to BAA: Must You Have One?

By Kim Stanger

HIPAA applies to both covered entities (e.g., healthcare providers and health plans) and their business associates. A “business associate” is generally a person or entity that “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; malpractice insurers; etc.).1 “A covered entity may be a business associate of another covered entity” when it performs such functions on behalf of another covered entity.2  Also, 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.3 To determine if an entity is a business associate, see our Business Associate Decision Tree. Continue reading →

October 3, 2023

No More EMTALA Exception to Idaho’s Total Abortion Ban

By Kim Stanger

The Ninth Circuit Court of Appeals has ended the EMTALA exception to Idaho’s total abortion ban, I.C. 18-622.

In 2022, the US Department of Justice (DOJ) sued the state of Idaho, claiming that EMTALA preempted the total abortion ban in emergency cases. The federal district court of Idaho entered a preliminary injunction staying Idaho’s enforcement of its total abortion ban in EMTALA cases pending final resolution of the case.  (See our August 26, 2022, Health Law Update.) However, on September 28, 2023, the Ninth Circuit overruled the district court, holding that an intervening decision by the Idaho Supreme Court and Idaho’s amendment to the total abortion ban in 2023 mitigated, to a large extent, the concerns raised by the district court. Accordingly, the Ninth Circuit stayed the district court’s injunction, thereby ending the EMTALA exception to the total abortion ban pending a final decision in the district court case. A copy of the Ninth Circuit decision may be accessed here.  Continue reading →

September 22, 2023

Idaho’s New Essential Caregiver Visitation Law

by Cameron McCue

Idaho implemented a new law that gives people receiving in-person healthcare services the right to be visited by essential caregivers of their choosing under certain conditions. I.C. § 39-9802. The law, which became effective July 1, 2023, requires healthcare and assisted living facilities to allow patients to have in-person visitation from an essential caregiver even if other visitors are being excluded by the facility. I.C. § 39-9803. The new law supplements requirements that hospitals, long-term care facilities, and certain other institutional providers already have under licensure regulations or Medicare conditions of participation.

The law defines “essential caregiver” as “a person or persons designated by a patient or resident to visit the patient or resident in person at a facility.” I.C. § 39-9801(2). Healthcare facilities have certain obligations under the new law beyond just allowing patients to have in-person visitation from an essential caregiver. Facilities must (1) when practicable, notify potential patients or residents of their right to designate essential caregivers prior to admission to the facility; (2) provide patients or residents an opportunity to designate their essential caregivers; and (3) within certain limits, accommodate patient requests to have essential caregivers visit. Continue reading →

September 15, 2023

HIPAA and Subpoenas, Orders, and Administrative Demands

By Kim Stanger

The HIPAA privacy rules (45 CFR § 164.501 et seq.) generally prohibit healthcare providers and their business associates from disclosing protected health information in response to subpoenas and other government demands unless certain conditions are satisfied. This outline summarizes HIPAA rules for responding to such demands. To the extent there is a more restrictive state or federal law that applies in a particular case, the more restrictive law will usually control. Continue reading →

August 1, 2023

Referrals for Out-of-State Abortions: New Idaho Decision

By Kim Stanger

The federal District Court of Idaho has issued a ruling that will help protect physicians and other healthcare providers who refer patients outside of Idaho for an abortion.

As we have previously discussed (see https://www.hollandhart.com/idahos-amended-abortion-laws-summary-and-updated-faqs), Idaho’s criminal abortion ban prohibits “assist[ing] in performing or attempting to perform an abortion.”  (I.C. 18-622(2)).  On March 27, 2023, Idaho Attorney General Labrador issued a letter (the “Crane Letter”) to a legislator in which he opined: Continue reading →

July 20, 2023

Consent for Treatment of Minors in Idaho

By Kim Stanger

In Idaho, persons under the age of 18 (“minors”) may consent to their own healthcare in only limited circumstances.1

General Rule: Obtain Consent from Parent or Surrogate Decision Maker. Idaho Code § 39‑4503 sets forth the general standard for determining whether a person is competent to consent to their own healthcare:

Any person … who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated health care services is competent to consent thereto on his or her own behalf.

Continue reading →

July 19, 2023

The Idaho Medical Consent Act: Recent Amendments

By Kim Stanger

The Idaho legislature has amended Idaho’s Medical Consent Act.  The redlined changes are shown here.  Effective July 1, 2023, the rules for medical consents in Idaho are as follows:

1. Need for Informed Consent. As a general rule, a healthcare provider or entity must have informed consent from a competent patient or their authorized surrogate decision-maker to provide healthcare. Failure to obtain sufficiently informed consent may subject the provider to liability for civil, administrative, and potentially criminal penalties.  In addition to malpractice, assault, or other common causes of action, Idaho recognizes a specific tort cause of action for lack of informed consent.1 Continue reading →

April 13, 2023

Idaho’s Amended Abortion Laws: Summary and Updated FAQs

By Kim Stanger

The Idaho legislature has amended Idaho’s abortion laws. This health law update briefly summarizes key changes and updates our FAQs to address the new developments.

Total Abortion Ban. The Idaho legislature addressed some of the concerns by providers but declined to add an exception based on the health of the mother. As amended effective July 1, 2023, Continue reading →