HIPAA Privacy In The Aftermath Of Sandy: Be Prepared For The Next Emergency

by Proskauer - Privacy & Data Security

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As health care providers, patients, family members, friends, and disaster relief agencies such as the American Red Cross continue to grapple with the aftermath of Hurricane Sandy it is important to be mindful of privacy regulations and to prepare in advance for the next emergency. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA” or “Privacy Rule”) protects individually identifiable health information held by “covered entities.” The information protected is referred to as protected health information or PHI. The Privacy Rule permits covered entities to disclose PHI for a variety of purposes including to (a) treat patients; (b) identify, locate and notify family members, guardians, or anyone else responsible for an individual’s care; (c) obtain the services of disaster relief agencies; (d) conduct public health activities; and (e) prevent or lessen serious and imminent threats to health or safety.

The U.S. Department of Health and Human Services (“HHS”) provides guidelines for disclosures before and during emergencies. HHS developed a flowchart decision tool to assist health care providers during a public health emergency. Here is a link to HHS’s Flowchart Decision Tool. The Flowchart Decision Tool asks three essential questions. First, who is the source of the information to be disclosed? If the source of the information is a covered entity (i.e., a health plan, health care provider, or a health care clearinghouse) then the decision maker needs to answer the next question. Second, to whom is the information being disclosed?  Is the recipient of the information a Public Health Authority (“PHA”)? A PHA is defined as an agency or authority of the United States Government, a State, a territory, a political subdivision of a State or territory, or an Indian tribe, that is responsible for public health matters as a part of its official mandate, or a person or entity acting under a grant of authority from a contract with such agency. Third, does the covered entity have a signed authorization permitting the disclosure? The covered entity must obtain individual authorization, unless the disclosure is permitted by another provision of the Privacy Rule (i.e., obtain the services of disaster relief agencies or prevent or lessen serious and imminent threats to health and safety). A valid authorization includes (a) a meaningful description of the information to be disclosed; (b) the name of the individual or the name of the person authorized to make the requested disclosure; (c) the name or other identification of the recipient of the information; (d) a description of each purpose of the disclosure; (e) an expiration date or an expiration event that relates to the individual; and (e) a signature of the individual or their personal representative and the date.

Health care providers are allowed to share PHI as necessary to carry out treatment. See 45 CFR 164.502(a)(1)(ii) and 164.506(c). After Hurricane Katrina, HHS Office for Civil Rights issued a Hurricane Katrina Bulletin: HIPAA Privacy and Disclosures in Emergency Situations on September 2, 2005 (“Bulletin #1“). Treatment was broadly defined to include (a) sharing information with other providers (including hospitals and clinics); (b) referring patients for treatment (including linking patients with available providers in areas where the patients have relocated), and (c) coordinating patient care with others (such as emergency relief workers or others that can help in finding patients appropriate health services). Bulletin #1 also clarified that when a health care provider is sharing information with a disaster relief organization authorized by law or by their charters, like the American Red Cross, it is unnecessary to obtain a patient’s permission to share PHI if so doing so would interfere with the organization’s ability to respond to the emergency.

The President and the HHS Secretary also have the authority to temporarily waive additional HIPAA requirements in an emergency. This is exactly what happen with Hurricane Sandy. October 30, 2012, President Obama declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act that a major disaster exists in New York and New Jersey as a result of Hurricane Sandy. The President’s declaration was retroactive to October 27, 2012. On October 31, 2012, HHS Secretary Sebelius declared a public health emergency and authorized waivers and modifications under Section 1135 of the Social Security Act for New York and New Jersey. These waivers were retroactive to October 27, 2012.

Section 1135 waives sanctions and penalties arising from noncompliance with the following provisions of the HIPAA privacy regulations: (a) the requirements to obtain a patient’s agreement to speak with family members or friends or to honor a patient’s request to opt out of the facility directory; (b) the requirement to distribute a notice of privacy practices; and (c) the patient’s right to request privacy restrictions or confidential communications. However Section 1135 waivers are limited to the designated geographic area and only during the emergency period. Waivers of these HIPAA requirements are limited to a 72 hour period. Here are copies of HHS Secretary Sebelius’s Section 1135 waivers for New York and New Jersey.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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