MRO recently kicked off the 2020 webinar series, focusing on best practices related to industry trends and challenges, leadership development and regulatory changes that affect the secure and compliant exchange of protected health information (PHI). My colleague Angela Rose and I recently presented the first webinar of the series, Optimizing and Maintaining Operations and Workflows: HIM Life in a COVID World. During this presentation, we explored the new normal for health information management (HIM) professionals during the ongoing pandemic.
Current Health Information Management Environment
Since the beginning of COVID-19, many things have changed in the healthcare environment. More people are working from home, telehealth visits have skyrocketed, and there has been increased demand on hospitals and health systems. Moreover, shortages of supplies and resources, as well as exhausted and limited staff, have put the healthcare industry to the test.
We have also seen many laws and restrictions put into place, or changed altogether, resulting in the need to stay up to date with the latest changes. For instance, many organizations need to review what disclosures are permitted when releasing PHI during a pandemic. Some of those permitted disclosures include the following:
- To provide treatment
- To notify a public health authority to prevent or control spread of disease
- To alert first responders at risk of infection
- To prevent/lessen the threat to the health and safety of a person or the public
- To assist a law enforcement official or correctional institution – Only when the PHI is needed for: providing healthcare to the individual or protecting the health and safety of other individuals present including the person transferring the individual, the law enforcement on site, and the administration at the site
- When required by law
Recently, the HHS released statements regarding the release of PHI to the media, as well as contacting former COVID-19 patients about blood and plasma donations. There has been absolutely no change to the rule that PHI cannot be disclosed to the media, including film footage where patients’ faces are blurred or masked. However, the HHS did release a statement that contacting a patient about blood and plasma donations is permitted under HIPAA as a population-based healthcare operations activity, provided it does not constitute marketing. I recently wrote a blog post about that topic, which you can read here.
Telehealth – Changing Environment
In February 2020, prior to the COVID-19 outbreak, only 0.1% of Medicare primary visits were via telehealth. Fast forward to April 2020, and telehealth accounted for 43.5% of those visits. Another survey of about 300 practitioners, including primary care and specialists, indicated that prior to the pandemic, only 9% of patient interactions were via telehealth. That number jumped to 51% during quarantine, and increased across many specialties including psychiatry, gastroenterology and neurology. In July 2020, the HHS published a comprehensive study on Medicare beneficiary use of telehealth visits, including early data from the start of the pandemic.
Looking forward, there will be a permanent place for telehealth. As patients use telehealth, which is easy and convenient, it will become increasingly difficult to take that option away. Therefore, policies and procedures must be put into place to appropriately account for telehealth. Business associate agreements should be reevaluated as part of that process. Many thought leaders in the healthcare industry predict the need for a new executive position within hospitals and health systems—Chief Telehealth Officer.
Release of Information
We are now about six months into the pandemic, and half of the walk-in windows at hospitals are closed. While some had reopened, many closed again. As a result, many alternative workflows are still in place. To receive record requests, facilities are using secure onsite drop boxes and mail as well as virtual electronic options including fax, email and portals. For delivering requests, options include minimal-contact, in-person appointments and virtual electronic options—fax, email, portals and electronic submission such as esMD, SFTP and ERE.
While most workforces are still temporarily operating remotely, many will remain that way permanently. Ensuring your teams are ready means having policies and procedures for the following areas:
- Home workspace requirements
- Devices and connectivity
- Use and disclosure of PHI
- Reporting incidents
- Work days/hours
Readiness also requires proper education and training. For instance, there has been a major uptick in fraudulent emails, phone calls and even text messages. Organizations must make sure that all employees know what fraud looks like, and how they can maintain a safe working environment while at home. In fact, my colleagues Angela Rose and Anthony Murray will be presenting Security in a Virtual Environment: Protecting Your Workforce at Home on October 21, 2020.
If you are looking to be a thought leader within your organization during the pandemic, there are important factors to keep in mind. Know your environment by understanding your organization’s policies and protocols including response times, action items, workforce exposure protocols, sanitization schedules and contamination controls. Knowing how to communicate both internally and externally regarding these procedures is also essential to becoming a thought leader.
Another important piece is thinking outside the box to achieve success. Adjust KPIs and benchmarks based on realistic, attainable goals. Look at your KPIs pre-pandemic, measure what is going on now and then re-identify appropriate benchmarks. Also be sure to hold regular meetings and touch base with your workforce. To make your meetings more interactive, include video so you can connect with your teams more personally, and make sure they’re engaged and productive during the calls.
Above all, communicate and stay current on what’s going on in the industry. Continue to attend webinars and learn more from other thought leaders in your field. Here at MRO, we will continue to provide thought leadership and educational sessions to keep you up to date on current events.
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The Office for Civil Rights (OCR) at the US Department of Health and Human Services (HHS) recently issued guidance on how providers can contact former COVID-19 patients regarding opportunities for blood and plasma donations. Though healthcare providers can use Protected Health Information (PHI) to identify and contact previous patients, specific guidelines should be followed.
What the guidance outlines
Contacting previous COVID-19 patients to notify them of opportunities for donating blood and plasma is allowed in order to assist healthcare providers in collecting antibodies for treatment of other patients with COVID-19. The use of PHI for this purpose is permitted as a population-based healthcare operations activity, as outlined in the HIPAA Privacy Rule for HIPAA covered entities and their business associates. Furthermore, facilitating the supply of donated blood and plasma is expected to improve the provider’s ability to conduct case management for patients who have been infected with COVID-19.
However, safeguards remain in place when contacting previous COVID-19 patients. The provider can contact its previous patients for this purpose, without authorization, to the extent that the activity is not considered marketing. As defined by HHS, marketing is a communication about a product or service that encourages the recipient of the communication to purchase or use the product or service. However, under one exception, a covered healthcare provider is permitted to make such a communication for the population-based case management and related healthcare operations activities, provided there is no payment associated with the activities.
Additionally, providers are not permitted to share PHI with third parties. For example, a provider cannot release a patient’s PHI to a blood and plasma donation center so that the center can contact the patient for its own purposes, such as collecting the blood and plasma for a profit. For such a transaction to occur, the provider must receive the patient’s authorization prior to making the disclosure of PHI.
For more information, the complete guidance can be found here.
MRO’s four-part special webinar series regarding the Interoperability Rule will teach attendees how this rule helps healthcare data and systems become more standardized, so that data can be exchanged seamlessly. Even if you and your organization are already making strides toward achieving interoperability at your facility, you can benefit by continually learning more. The Interoperability Rule, which consists of over 1,200 pages, probably seems daunting. Therefore, we created these expert-led sessions to break down the rule for you, since the rule has major compliance implications that your organization needs to prepare for.
Highlighted below are the four sessions included in our webinar series.
Information Blocking and the Interoperability Rule
Information Blocking: Setting the Stage – Lauren Riplinger, AHIMA
The first session of the Information Blocking webinar series, presented by an AHIMA staff member, provides an introduction by setting the stage for the other sessions. Attendees will learn the history of information blocking as well as the legislative background of the 21st Century Cures Act. They will also take a deep dive into the intended goals of the rule, and how the ONC got to the current state we are in.
Information Blocking and Interoperability: Decoding API Elements, Incompatibilities, and the Role of HIM in Technical Developments – Jeff Smith, AMIA and Diana Warner, MRO
The second session of the Information Blocking webinar series breaks down the technical developments and considerations from the ruling. Jeff Smith from AMIA will highlight the informatics and the technical compatibility requirements, as well as delve deeper into the technical aspects of the ruling and what it means for supporting CIOs and their teams. Specializing in information governance, Diana Warner from MRO will then guide attendees through the special considerations for HIM teams.
Information Blocking and HIPAA: Road to Compliance – Rita Bowen, MRO and Angela Rose, MRO
The third session of the Information Blocking webinar series, presented by two of MRO’s industry experts, analyzes the rule with a focus on HIPAA. Attendees will be immersed in a discussion around critical aspects of the rule and explore ways to operationalize its requirements to achieve compliance. Furthermore, they will take away tips and strategies to share with their organizations to guide planning efforts for success.
Information Blocking: Looking Ahead – All Webinar Presenters
The fourth and final session of the Information Blocking webinar series features a roundtable panel discussion from all the previous presenters. This session will briefly summarize what attendees learned during the first three sessions, as well as discuss what comes next. Attendees will learn practical enforcement mechanisms, OIG timing and enforcements, and possible penalties. The expert panel will also provide answers to the most frequently asked questions from the entire series.
Please join us for the first webinar, presented by Lauren Riplinger, JD, from AHIMA, Information Blocking: Setting the Stage, on June 11, 2020 at 2 pm ET.
MRO’s Rita Bowen, MA, RHIA, CHPS, CHPC, SSGB, and Danielle Wesley, Esq. discuss HIM’s role in the patient-directed requests court ruling from January 2020.
AHIMA’s Dan Kelly interviews our industry expert Rita Bowen to clear up misconceptions about HIPAA rules, privacy and compliance, and AHIMA’s release of information guidelines during the COVID-19 pandemic.
In these unprecedented times, there is much talk of the novel coronavirus (COVID-19) as it relates to HIPAA and the privacy of patient information. The Office for Civil Rights (OCR) at the US Department of Health and Human Services (HHS) recently provided a statement to ensure all parties are aware of how patient information can be shared during an infectious disease outbreak. The purpose of the statement was to remind business associates and other entities covered by HIPAA that the Privacy Rule is not set aside during an emergency.
What this means for caregivers
Anyone who has been recognized by the patient will be allowed to continue receiving patient information. Additionally, HIPAA-covered entities are permitted to share the information in order to identify or locate a patient, and to notify the family members, guardians, or other caregivers of the patient’s general health condition or death. Furthermore, the information can be disclosed to law enforcement, the press or the public at large if necessary, to identify or locate the patient.
In any of the above cases, verbal permission from the patient should be obtained prior to the disclosure of information. However, the HIPAA minimum necessary standard does apply. This means that healthcare providers should make a reasonable effort to ensure any disclosed PHI is protected and restricted to the minimum necessary information, and only used to achieve the intended purpose.
What this means for business associates
While caregivers involved may share information as needed for public health purposes, business associates may not release the information without express authorization. If there is a legitimate need for public health authorities, or others responsible for ensuring public health and safety, to access protected health information required to carry out their public health mission, then and only then may the covered entity release the information. For example, should a facility ask that a business associate, such as MRO, release information verbally, the business associate is required to obtain a waiver of protection to do so. This is because the rule specifically indicates that business associates are to continue with the use of the protected information as outlined in the business associate agreement.
To learn more, and read the entire HHS release, click here.
On December 11, 2019, I joined my colleague Danielle Wesley, Esq., Vice President and General Counsel, to present the fourth and final installment of MRO’s PHI Disclosure Management Webinar Series. In this webinar titled “Clearing the Confusion: Attorney Misuse of Patient-Directed Record Requests and How to Cope,” we reviewed trends and national efforts underway, discussed how the health system is impacted and formulated tactics to combat the confusion.
Patient-Directed Request Trends
The OCR’s 2016 guidance on patient access was meant to remove roadblocks for patients and their personal representatives when requesting medical records or PHI. However, instead of adding more clarification for healthcare provider organizations, the 2016 guidance opened the door for third-party requesters and attorneys to inappropriately request medical records under the guise of patient-directed requests, resulting in mounting challenges for healthcare providers. Recently, we have begun to see the following trends:
- Attorneys and other third parties have increased the number of “patient-directed” requests and are using the records for their own for-profit activities—such as litigation or data sharing/selling.
- Such requests demand that records be sent directly to the third party but be billed at the patient rate under the HITECH Act.
- Use of the phrase “any and all” has led to a rise in page count per request. This phrase is used as an attempt to receive all PHI regarding a patient, not just the specific encounters or visits that are relevant to the litigation.
- An increase in the submission of meritless complaints to release of information companies such as MRO, their clients, and the OCR has resulted in more time and effort to respond to baseless complaints, which ultimately generates greater operational costs.
These trends are concerning for release of information companies and their clients because attorneys and record retrieval companies are able to obtain large volumes of essentially unrestricted, unregulated PHI at lower fees by using generic, template forms. Furthermore, patients are unaware of the risks associated with the documents they are signing and are not actually providing “informed consent.” Such risks include:
- No acknowledgement of HIPAA rights
- No expiration date, allowing third parties to copy and use the “patient-directed” request letter indefinitely
- No restriction on sensitive information regarding HIV, sexually transmitted diseases, psychotherapy notes, substance abuse and more
Health System Impacts
As the misuse of patient-directed requests grows, so does the impact across health system departments. Not only does this issue directly affect the Health Information Management (HIM) department, it also affects the Compliance and Legal/Risk Management departments.
HIM departments must mitigate patient privacy risks while managing an increase in volume, workload, costs and staffing.
Compliance departments are concerned about OCR incrimination, which results in knee-jerk responses versus well-informed actions. There is also a lack of time and resources to appropriately push back on meritless attorney complaints and threats.
Legal and Risk Management departments face OCR complaints and outside attorney pressure, and lack understanding of the steps and costs required to fulfill requests for medical records. For all parties involved, proper training is needed to mitigate risk and take appropriate action in response to attorney requests and patient-directed requests.
PHI Disclosure Management: Recommendations for Organizations
All health systems and organizations should have a plan in place to combat attorney misuse of patient-directed requests. Here are four simple, yet effective tactics:
- Provide HIPAA training and education throughout your organization, particularly focused on patient access and patient privacy. Include departments such as HIM, Legal, Compliance, Risk Management, Finance, etc.
- Recognize this as a long-term problem that cannot be resolved effectively by short-term solutions. Consistency is essential, begin by understanding your responsibilities set forth in your organization’s HIPAA compliant Notice of Privacy Practices.
- Don’t be afraid to push back. Engage with the OCR whenever possible since it is critical that they hear from your organization directly. MRO’s most successful clients have taken a strong stance for their patients and against third parties misusing patient access.
- Contact your representatives and senators to share your concerns regarding misuse and abuse of patient-directed requests from attorneys, record retrieval companies and other third parties. Specifically, contact members of the Health, Education, Labor and Pensions (HELP) Committee.
Continuing Education for the Misuse of Patient-Directed Requests
As we begin the New Year, Danielle and I will continue to educate our client base by hosting webinars, publishing additional content and visiting Capitol Hill alongside other industry experts. Stay connected and view the latest updates by following us on our social media platforms.
To learn more about the misuse of patient-directed record requests, fill out the form below to receive a copy of this webinar.
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In a Healthcare IT Today blog post, MRO’s Rita Bowen, MA, RHIA, CHPS, CHPC, SSGB is quoted on what she believes to be the hottest topic for 2020. She explains that the Information Blocking Rule could have some areas that will be in conflict with HIPAA, which will further drive the discussion and need for an update to HIPAA.
Anthony Murray and Rita Bowen explain it is crucial that healthcare organizations be detail-oriented and methodical in assessing their business associates. Furthermore, they urge organizations to conduct an assessment of the vendor’s compliance with HIPAA regulations, the integrity of the vendor’s data and its breach prevention practices. They believe it is essential that the vendor meets the 12 requirements outlined in this article.