Top 5 Common HIPAA Mistakes to Avoid in 2018

January 2, 2018

Authored by Elizabeth Litten, Fox Rothschild

Heading into its 22nd year, HIPAA continues to be misunderstood and misapplied by many, including health care industry professionals who strive for (or at least claim the mantle of) HIPAA compliance. Here is my “top 5” list of the most frequent, and most frustrating, HIPAA misperceptions seen during 2017:

  1. “If I’m using or disclosing protected health information (PHI) for health care operations purposes, I don’t need a Business Associate Agreement.”

Yes, HIPAA allows PHI to be used or disclosed for treatment, payment and health care operations purposes, but the term “health care operations” is defined to include specific activities of the covered entity performing them. In addition, the general provision permitting use or disclosure for health care operations purposes (45 C.F.R. 164.506(c)) allows such use or disclosure for the covered entity’s “own” health care operations. So if the covered entity (or business associate) is looking to a third party to perform these activities (and the activities involve the use or disclosure of PHI), a Business Associate Agreement is needed.

  1. “I don’t need to worry about HIPAA if I’m only disclosing a patient’s/member’s telephone number, since that’s not PHI.”

If the data disclosed was ever PHI, it’s still PHI (unless it has been de-identified in accordance with 45 C.F.R. 164.514). For example, if data is received by a health care provider and relates to the provision of care to patient (e.g., as a phone number listed on a patient intake form), it’s PHI – even though, as a stand-alone data element, it doesn’t appear to have anything to do with the patient’s health. Unless the patient has signed a HIPAA authorization allowing the disclosure of the phone number to a third party vendor, the vendor receiving the phone number from the provider to perform patient outreach on behalf of the provider is a Business Associate.

  1. “When a doctor leaves a practice, she can take her patients’ medical records with her.”

This is not automatic, particularly if the practice is the covered entity responsible for maintaining the records and the patient has not expressly allowed the disclosure of his or her records to the departing doctor. In most cases, the practice entity transmits health information in electronic form in connection with a HIPAA transaction and acts as the covered entity health care provider responsible for HIPAA compliance. The patient can access his or her records and direct that they be sent to the departing physician (see guidance issued by the U.S. Department of Health and Human Services (HHS) on individual’s access rights), and if the patient shows up in the departing doctor’s new office, the practice can share the patient’s PHI under the “treatment” exception. If the practice wants the departing doctor to maintain the records of patients she treated while part of the practice, it can enter a records custodian agreement and Business Associate Agreement with the departing doctor.

  1. “I can disclose PHI under the “sales exception” to anyone involved in due diligence related to the sale of my health care practice/facility without getting a Business Associate Agreement.”

HIPAA prohibits the sale of PHI, but excluded from this prohibition is “the sale, transfer, merger, or consolidation of all or part of the covered entity and for related due diligence” as described in the definition of health care operations. The definition of health care operations, in turn, includes the “sale, transfer, merger, or consolidation of all or part of the covered entity with another covered entity, or an entity that following such activity will become a covered entity and due diligence related to such activity.”  This “sales exception” is a bit vague and the cross-referencing of other regulations adds to the confusion, but the fact that disclosing PHI in connection with due diligence related to a possible sale of a covered entity is not prohibited as a “sale” does not mean it’s permitted without regard to other HIPAA requirements and protections. Attorneys, consultants, banks, brokers and even potential buyers should consider whether they are acting as business associates, and careful buyers and sellers may want to require Business Associate Agreements with those accessing PHI.

  1. “If I’m treating an overdose victim [or other unconscious or incapacitated person], I can’t share his/her PHI with family members or caregivers.”

The HHS Office for Civil Rights recently published guidance to clarify that HIPAA does not prohibit health care professionals from sharing information with family members and others in crisis situations, such as those involving overdose victims. I blogged on a related topic, involving the nightclub shooting tragedy in Orlando, Florida, back in 2016. The bottom line is that HIPAA allows the disclosure of PHI in two circumstances that are often forgotten: (1) where the patient is unconscious or incapacitated and the provider believes sharing information with family and close friends involved in the patient’s care is in the best interests of the patient; and (2) where the provider believes that sharing information will prevent or lessen a serious and imminent threat to the patient’s health or safety.  More stringent laws may apply, such as those governing substance use disorder treatment records created or maintained by certain federally-assisted substance use disorder treatment providers or state laws, but HIPAA permits providers to exercise discretion in crisis situations.

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