Federal Rules Require Covered Entities and Employers to Limit Use and Disclosure of Protected Health Information - Part II

 
Monday, April 1, 2002
 
by Jackson Lewis

This is Part II of an article covering when and under what conditions protected information may be disclosed, as well as the penalties for unlawful disclosure. Part I dealt with who is a covered entity, what information is protected, and what control patients have over information.

Insurance, health care provider and pharmacy records containing confidential personal health information are subject to stiffer privacy protection under regulations issued by the Department of Health and Human Services, as empowered by the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA Until recently it was left to the states to protect this type of confidential and personal information. The federal regulations were designed to cover the weaknesses in many of those state laws while preserving the stronger protection in areas such as mental health, HIV infection, and AIDS information. The rules took effect April 14, 2001, but most employers affected by the rules have until April 14, 2003 to comply.

The basic principle of the new rules is simple: "covered entities" cannot use or disclose "protected health information" except with the consent or authorization of the patient or as permitted under the regulations.

The final regulations permit disclosure of protected health information in the following limited circumstances:

  1. to the patient;
  2. by general consent of the patient for routine disclosures necessary to carry out health care treatment, payment, or operations (for example, internal data gathering by a health care plan); and
  3. by separate, specific authorization of the patient for a non-routine purpose of limited duration.

With the exception of disclosures to or requests by a health care provider for treatment, the final privacy rules permit only the disclosure of the minimum amount of information necessary to carry out the consent or authorization.

Employers and Health Plan Sponsors. While the privacy rules do not apply directly to employers and health plan sponsors, they do affect the flow of information from covered entities to health plan sponsors. The rules permit a group health plan or insurer to disclose summary health information (e.g., claims history data with individually identifiable information deleted) to allow the plan sponsor to obtain premium bids or to change the plan. They also permit a group health plan or insurer to disclose personal health care information to a plan sponsor which agrees to be bound by the privacy rules.

Use of the personal information for any "employment purpose" is forbidden, and for any permitted use, the plan sponsor must first amend the health plan document to include privacy restrictions paralleling those for covered entities.

Requirements for Compliance and Penalties for Noncompliance

Covered entities are required to implement numerous administrative policies and procedures to protect personal health care information, including:

  • a complaint and grievance procedure;
  • a documented privacy procedure;
  • and privacy training for employees dealing with protected health information.

Penalties. Violations of the privacy rules may result in civil penalties of up to $25,000 within a single calendar year, and criminal penalties up to $250,000 and/or a 10-year prison term if the information is used for commercial advantage or malicious harm.

For more information on the privacy rules on personal health care information, please contact the Jackson Lewis Benefits Group, 914-328-0404, or by email, [email protected].
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