More HIPPA crap

[Guest guest]

July 3, 2007

Keeping Patients’ Details Private, Even From Kin

By JANE GROSS

An emergency room nurse in Palos Heights, Ill., told Gerard Nussbaum he

could not stay with his father-in-law while the elderly man was being treated

after a stroke. Another nurse threatened Mr. Nussbaum with arrest for scanning

his relative’s medical chart to prove to her that she was about to administer

a dangerous second round of sedatives.

The nurses who threatened him with eviction and arrest both made the same

claim, Mr. Nussbaum said: that access to his father-in-law and his medical

information were prohibited under the Health Insurance Portability and

Accountability Act, or Hipaa, as the federal law is known.

Mr. Nussbaum, a health care and Hipaa consultant, knew better and stood his

ground. Nothing in the law prevented his involvement. But the confrontation

drove home the way Hipaa is misunderstood by medical professionals, as well as

the frustration — and even peril — that comes in its wake.

Government studies released in the last few months show the frustration is

widespread, an unintended consequence of the 1996 law.

Hipaa was designed to allow Americans to take their health insurance

coverage with them when they changed jobs, with provisions to keep medical

information confidential. But new studies have found that some health care

providers

apply Hipaa regulations overzealously, leaving family members, caretakers,

public health and law enforcement authorities stymied in their efforts to get

information.

Experts say many providers do not understand the law, have not trained their

staff members to apply it judiciously, or are fearful of the threat of fines

and jail terms — although no penalty has been levied in four years.

Some reports blame the language of the law itself, which says health care

providers may share information with others unless the patient objects, but

does not require them to do so. Thus, disclosures are voluntary and health care

providers are left with broad discretion.

The unnecessary secrecy is a “significant problem,†said Mark Rothstein,

chairman of a privacy subcommittee that advises the Department of Health and

Human Services, which administers Hipaa. “It’s drummed into them that there

are rules they have to follow without any perspective,†he said about health

care providers. “So, surprise, surprise, they approach it in a defensive,

somewhat arbitrary and unreasonable way.â€

Mc, deputy director of health information privacy at the

Department of Health and Human Services, said that problems were less frequent

than

they once had been but that health care providers continued to hide behind

the law. “Either innocently or purposefully, entities often use this as an

excuse,†she said. “They say ‘Hipaa made me do it’ when, in fact, they

chose

for other reasons not to make the permitted disclosures.â€

Mr. Rothstein, one of Hipaa’s harshest critics, has led years of hearings

across the country. Transcripts of those hearings, and accounts from hospital

administrators, patient advocates, lawyers, family members, and law

enforcement officials offer an anthology of Hipaa misinterpretations, some

alarming,

some annoying:

Birthday parties in nursing homes in New York and Arizona have been canceled

for fear that revealing a resident’s date of birth could be a violation.

Patients were assigned code names in doctor’s waiting rooms — say,

“Zebraâ€

for a child in Newton, Mass., or “Elvis†for an adult in Kansas City, Mo.

—

so they could be summoned without identification.

Nurses in an emergency room at St. Health Center in Youngstown,

Ohio, refused to telephone parents of ailing students themselves, insisting a

friend do it, for fear of passing out confidential information, the

hospital’s

patient advocate said.

State health departments throughout the country have been slowed in their

efforts to create immunization registries for children, according to Dr.

J. Gibson, the director of disease control in South Carolina, because

information from doctors no longer flows freely.

Teaching staff to protect records is easier than teaching them to share

them, said N. Swidler, general counsel for Northeast Health, a nonprofit

network in Troy, N.Y., that includes several hospitals.

“Over time, the staff has become a little more flexible and humane,†Mr.

Swidler said. “But nurses aren’t lawyers. This is a hyper-technical law and

it

tells them they may disclose but doesn’t say they have to.â€

Many experts, including critics like Mr. Rothstein and proponents like Ms.

Mc, distinguish different categories of secrecy.

There are “good faith nondisclosures,†as when a floor nurse takes a phone

call from someone claiming to be a family member but cannot verify that person

’s identity. Then there are “bad faith nondisclosures,†like using Hipaa

as

an excuse for not taking the time to gather records that public health

officials need to help child abuse investigators trying to build a case.

Most common are seat-of-the-pants decisions made by employees who feel safer

saying “no†than “yes†in the face of ambiguity.

That seemed to be what happened to his own mother, Mr. Rothstein said, when

she called her doctor’s office to discuss a problem. She was told by the

receptionist that the doctor was not available, Mr. Rothstein said, and then

inquired if the doctor was with a patient or out of the office. “I can’t

tell

you because of Hipaa,†came the reply. In fact the doctor was home sick,

which

would have been helpful information in deciding whether to wait for a call

back or head for the emergency room.

The law, medical professionals and privacy experts said, has had the

positive effect of making confidentiality a priority as the nation moves toward

fully computerized, cradle-to-grave medical records.

But safeguarding electronic privacy required a tangle of regulations issued

in 2003, followed last year by 101 pages of “administrative

simplification.â€

Senator M. Kennedy, Democrat of Massachusetts, a sponsor of the

original insurance portability law, was dismayed by the “bizarre

hodgepodge†of

regulations layered onto it, several staff members said, and by the

department’

s failure to provide “adequate guidance on what is and is not barred by the

law.†To that end, Mr. Kennedy, along with Senator M. Leahy, Democrat

of Vermont, plans to introduce legislation creating an office within the

Department of Health and Human Services dedicated to interpreting and enforcing

medical privacy.

“In this electronic era it is essential to safeguard the privacy of medical

records while insuring our privacy laws do not stifle the flow of information

fundamental to effective health care,†Mr. Kennedy said.

This spring, the department revised its Web site, _www.hhs.gov/ocr/hipaa_

(http://www.hhs.gov/ocr/hipaa) , in the interest of clarity. But Hipaa

continues to baffle even the experts.

Ms. Mc explained some of the do’s and don’ts of sharing information

in a telephone interview:

Medical professionals can talk freely to family and friends, unless the

patient objects. No signed authorization is necessary and the person receiving

the information need not have the legal standing of, say, a health care proxy

or power of attorney. As for public health authorities or those investigating

crimes like child abuse, Hipaa defers to state laws, which often, though not

always, require such disclosure. Medical workers may not reveal confidential

information about a patient or case to reporters, but they can discuss

general health issues.

Ms. Mc said there was no way to know how often information was

withheld. Of the 27,778 privacy complaints filed since 2003, the only cases

investigated, she said, were complaints filed by patients who were denied

access to

their own information, the one unambiguous violation of the law.

Complaints not investigated include the plights of adult children looking

after their parents from afar. Experts say family members frequently hear, “I

can’t tell you that because of Hipaa,†when they call to check on the

patient’

s condition.

That is what happened to Banks, who drove from Bartlesville, Okla., to

her mother’s bedside at Town and Country Hospital in Tampa, Fla., last week

because Ms. Banks could not find out what she needed to know over the

telephone.

Her 82-year-old mother had had a stroke. When Ms. Banks called her room she

heard her mother “screaming and yelling and crying,†but conversation was

impossible. So Ms. Banks tried the nursing station.

Whoever answered the phone was not helpful, so Ms. Banks hit the road.

Twenty-two hours later, she arrived at the hospital.

But more of the same awaited her. She said her mother’s nurse told her that

“

because of the Hipaa laws I can get in trouble if I tell you anything.â€

In the morning, she could speak to the doctor, she was told.

The next day, Ms. Banks was finally informed that her mother had had heart

failure and that her kidneys were shutting down.

“I understand privacy laws, but this has gone too far,†Ms. Banks said.

“I’

m her daughter. This isn’t right.â€

A hospital spokeswoman, Elena Mesa, was asked if nurses were following Hipaa

protocol when they denied adult children information about their parents.

She could not answer the question, Ms. Mesa said, because Hipaa prevented

her from such discussions with the press.

Dan Frosch contributed reporting from Denver, and Thayer from Houston.

Copyright 2007 The New York Times Company

Louis N. Molino, Sr., CET

FF/NREMT-B/FSI/EMSI

Freelance Consultant/Trainer/Author/Journalist/Fire Protection Consultant

LNMolino@...

(Cell Phone)

(IFW/TFW/FSS Office)

(IFW/TFW/FSS Fax)

" A Texan with a Jersey Attitude "

" Great minds discuss ideas; Average minds discuss events; Small minds

discuss people " Eleanor Roosevelt - US diplomat & reformer (1884 - 1962)

The comments contained in this E-mail are the opinions of the author and the

author alone. I in no way ever intend to speak for any person or

organization that I am in any way whatsoever involved or associated with unless

I

specifically state that I am doing so. Further this E-mail is intended only for

its

stated recipient and may contain private and or confidential materials

retransmission is strictly prohibited unless placed in the public domain by the

original author.

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[Guest guest]

In a message dated 7/3/2007 2:14:34 P.M. Central Daylight Time,

ExLngHrn@... writes:

This story illustrates one of my maxims of healthcare and public safety.

When a nurse, chief, or EMS manager doesn't want to do something, they blame:

1) HIPAA

2) Their liability insurance carrier

3) Homeland Security

4) The " Legal Department "

And now you know why you can't do an OR rotation or get follow up

information about a patient you treated.

-Wes Ogilvie

Austin, Texas

Yes very true and in the past (as in pre-HIPPA) as an EMS Manager we blamed

4 first and foremost, you guys are always the scapegoats.

Louis N. Molino, Sr., CET

FF/NREMT-B/FSI/EMSI

Freelance Consultant/Trainer/Author/Journalist/Fire Protection Consultant

LNMolino@...

(Cell Phone)

(IFW/TFW/FSS Office)

(IFW/TFW/FSS Fax)

" A Texan with a Jersey Attitude "

" Great minds discuss ideas; Average minds discuss events; Small minds

discuss people " Eleanor Roosevelt - US diplomat & reformer (1884 - 1962)

The comments contained in this E-mail are the opinions of the author and the

author alone. I in no way ever intend to speak for any person or

organization that I am in any way whatsoever involved or associated with unless

I

specifically state that I am doing so. Further this E-mail is intended only for

its

stated recipient and may contain private and or confidential materials

retransmission is strictly prohibited unless placed in the public domain by the

original author.

************************************** See what's free at http://www.aol.com.

[Guest guest]

In a message dated 7/3/2007 2:14:34 P.M. Central Daylight Time,

ExLngHrn@... writes:

This story illustrates one of my maxims of healthcare and public safety.

When a nurse, chief, or EMS manager doesn't want to do something, they blame:

1) HIPAA

2) Their liability insurance carrier

3) Homeland Security

4) The " Legal Department "

And now you know why you can't do an OR rotation or get follow up

information about a patient you treated.

-Wes Ogilvie

Austin, Texas

Yes very true and in the past (as in pre-HIPPA) as an EMS Manager we blamed

4 first and foremost, you guys are always the scapegoats.

Louis N. Molino, Sr., CET

FF/NREMT-B/FSI/EMSI

Freelance Consultant/Trainer/Author/Journalist/Fire Protection Consultant

LNMolino@...

(Cell Phone)

(IFW/TFW/FSS Office)

(IFW/TFW/FSS Fax)

" A Texan with a Jersey Attitude "

" Great minds discuss ideas; Average minds discuss events; Small minds

discuss people " Eleanor Roosevelt - US diplomat & reformer (1884 - 1962)

The comments contained in this E-mail are the opinions of the author and the

author alone. I in no way ever intend to speak for any person or

organization that I am in any way whatsoever involved or associated with unless

I

specifically state that I am doing so. Further this E-mail is intended only for

its

stated recipient and may contain private and or confidential materials

retransmission is strictly prohibited unless placed in the public domain by the

original author.

************************************** See what's free at http://www.aol.com.

[Guest guest]

In a message dated 7/3/2007 2:26:59 P.M. Central Daylight Time,

bbledsoe@... writes:

Wes:

Truer words were never spoken. Number five should be: 5) My medical director

Formerly number 2 in the pre-HIPPA era!

Louis N. Molino, Sr., CET

FF/NREMT-B/FSI/EMSI

Freelance Consultant/Trainer/Author/Journalist/Fire Protection Consultant

LNMolino@...

(Cell Phone)

(IFW/TFW/FSS Office)

(IFW/TFW/FSS Fax)

" A Texan with a Jersey Attitude "

" Great minds discuss ideas; Average minds discuss events; Small minds

discuss people " Eleanor Roosevelt - US diplomat & reformer (1884 - 1962)

The comments contained in this E-mail are the opinions of the author and the

author alone. I in no way ever intend to speak for any person or

organization that I am in any way whatsoever involved or associated with unless

I

specifically state that I am doing so. Further this E-mail is intended only for

its

stated recipient and may contain private and or confidential materials

retransmission is strictly prohibited unless placed in the public domain by the

original author.

************************************** See what's free at http://www.aol.com.

[Guest guest]

Nah no need, everyone I know already knows the order. It's intuitive.

Louis N. Molino, Sr., CET

FF/NREMT-B/FSI/EMSI

Freelance Consultant/Trainer/Author/Journalist/Fire Protection Consultant

LNMolino@...

(Cell Phone)

(IFW/TFW/FSS Office)

(IFW/TFW/FSS Fax)

" A Texan with a Jersey Attitude "

" Great minds discuss ideas; Average minds discuss events; Small minds

discuss people " Eleanor Roosevelt - US diplomat & reformer (1884 - 1962)

The comments contained in this E-mail are the opinions of the author and the

author alone. I in no way ever intend to speak for any person or

organization that I am in any way whatsoever involved or associated with unless

I

specifically state that I am doing so. Further this E-mail is intended only for

its

stated recipient and may contain private and or confidential materials

retransmission is strictly prohibited unless placed in the public domain by the

original author.

************************************** See what's free at http://www.aol.com.

[Guest guest]

Back in 2002 I began to study HIPAA with a view toward doing training in its

implementation for EMS providers.

In that process I developed a HIPAA compliance package and did 56 eight-hour

seminars around the country training people how to comply with it.

I learned this: Those who had already been trained by nurse educators had a

greatly skewed view of the Act and its requirements.

I wondered why that was, and I came to these conclusions:

1. The hospitals began training their folks long before we in EMS did.

Because of that, this happened: When HIPAA's proposed regulations were

announced at the end of President Clinton's term, they were very stringent and,

most

folks thought, unworkable. The Bush administration put a hold on

implementation and took more public comment. The result was an amended set of

rules

which were much less stringent and more reasonable and easily followed.

Unfortunately, much of the hospital training, usually done by nurse

educators, was done with the original rules in mind, before the final rules were

implemented. The nurses were taught a lot of stuff that turned out to be

wrong,

and somehow they never got straightened out.

2. There was mass hysteria in the medical community over HIPAA,

particularly in the hospital and nursing worlds. The criminal penalties were

emphasized, when a careful study of the law and its regulations would have shown

that

those penalties are reserved for those instances when somebody seeks to profit

from disclosures, such as when lists of patients and their diagnoses are sold

to insurance companies or drug companies to be used for solicitation of

business.

Almost all of the instances of over-interpretation of HIPAA that I have

observed have come from nurses.

Even though it is clear from HIPAA that feedback from a hospital to an EMS

service about a patient's progress and outcome is permitted under the

" healthcare operations " exception, nurses and hospitals STILL refuse to tell EMS

providers how their patient did.

The problem is NOT with HIPAA. The problem is with misinterpretation of

HIPAA.

And, a significant cause of that problem is the nurse educators, nurse

managers, and nurses who refuse to educate themselves about HIPAA's real

provisions.

Gene Gandy, JD, LP

**************************************

See what's free at http://www.aol.com.

[Guest guest]

I have been denied several facesheet for pt's that i

had just brought in be cause of HIPPA. wouldnt be so

bad but some of the pt's were uncounsious so we had no

billing info.

EMT-BASIC, HSE

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