Privacy in Hawaii A Ripple Effect. Moya T. Davenport Gray, Esq., Director Office of Information Practices State of Hawaii
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1 Privacy in Hawaii A Ripple Effect Moya T. Davenport Gray, Esq., Director Office of Information Practices State of Hawaii
2 Hawaii s Medical Privacy Law Proposed in 1995, 1996, 1997 and 1998 Adopted in 1999 Repealed in 2001
3 Four Basic Principles Tell patients how information is used Allow disclosure without authorization for limited health care purposes (free flow zone) Require authorizations for all other uses & disclosures Strong consequences for violations
4 More Covered Entities Than HIPAA Public Health Department Health Care Data Organizations Educational Institutions State Government Regulators Providers Researchers Health Plans & Certain Insurers Law Enforcement Officials Employers Agents
5 Components of the Law Individual Rights Notice Free Flow Zone - Provider & Health Plan Authorization, Subpoena or Court Order Excepted Public Policy Uses & Disclosures Sanctions
6 Free Flow Zone No Authorization for Disclosures for Treatment, Payment & Qualified Health Care Operations Providers Health Plans
7 All Other Uses - Authorization, Subpoena, Court Order Employment Uses Provider Certain Insurance Uses Other Entities Legal Uses Others Uses Not Exempted
8 Authorizations In writing with Name of patient Names of persons disclosing & receiving Signature of patient & date Purposes of disclosure Notice of revocation Date authorization ends
9 Certain Public Health & Safety Uses Excepted Emergencies, Coroner, medical examiner Health oversight & Public health Health research Civil, judicial administrative procedures Law enforcement Designated representatives Minors & parents
10 Compliance & Sanctions 1 Year to Comply Criminal prosecution - Class C & B felonies Civil actions Damages, attorneys fees Fines - up to $100,000
11 Experience with Compliance
12 Attempts to Comply Doctors, Other Providers, Insurance Carriers & Employers Slow to realize impact of privacy law on business Lawyers Gave conflicting legal interpretations
13 Difficulties in Application Doctors refused to transmit PHI in free flow zone Employers Authorizations and notices were overreaching & duplicative Workers Compensation Hearings stopped until Insurers could use & disclose information by authorizations
14 Special Session Called Insurance industry & employers led push to kill privacy law Legislature delayed law one year Medical Privacy Task Force reviewed Employment issues Insurance issues Compliance issues
15 Specific Problems Intended consequences Exclusion of insurers Unintended consequences Cost of authorizations Confusing legal interpretation Community need for government regulation
16 Major Solutions Reduce costly requirements by Expanding free flow zone Reduce costly notice requirements Provide for definitive compliance guidance
17 Cost Reduction Expand the no-consent zone to include Delivery and financing of health care Employment benefits or entitlements Workplace or educational health and safety Collective bargaining
18 Cost Reduction Notice Requirements Only providers & employers to provide notice Eliminate signature requirement on notice
19 Cost Reduction Reduce Compliance Confusion Provide definitive compliance guidance through regulatory authority
20 Strong Opposition to Any State Privacy Law Drug companies Insurance industry Employers
21 Task Force Report Published just as HIPAA privacy regulation was adopted
22 Legislative Session 2001 Political opposition to privacy law became support for HIPAA privacy regulations Strong move to overturn state privacy law State law repealed June 14, 2001
23 Lessons from Hawaii
24 Be sensitive to the different uses of PHI Uses in favor of the Patient treatment, payment and health care operations Uses in the Public s Interest fraud and abuse regulation Uses against the Patient s Interest to reduce liability
25 Collection & Use of PHI Unions Employers State OSHA Auditors (internal & external) Property & Casualty Insurers Insurers Agents Life Insurers Workers Compensation Insurer Case Managers Third Party Administrators Financial Institutions State Government Public HealthRegulators Department Health Insurance Claims Payment Peer Review Credentialing Insurance Utilization Review Institutional Lawyers Review Board Courts, Court Federal Reporters Government Govt. Adjudicatory Regulators Panels Researchers Federal Health Pharmaceutical Programs Companies Educational Institutions Fraud & Abuse Regulators Laboratories & Employees Pharmacies & Employees Hospitals & Employees Doctor s Employees Patient and Doctor
26 Privacy - A Foreign Language
27 A Tower of Babel Anticipate confusion from everyone your lawyers internal and external Anticipate the flow of information to stop
28 Solutions Create common expectations by inter-institutional collaboration regional collaboration
29 HIPAA will have a Ripple Effect
30 HIPAA will impact other industries Insurance Defense & Tort liability Workers Compensation Employers, Unions & Collective Bargaining Educational Institutions & Student Health Records
31 Solutions Assess data flows outside of the health care industry Look for exchanges of PHI in employment and payment issues, union grievance procedures and workers compensation
32 Solutions Establish clear operational procedures with Non-HIPAA Entities
33 HIPAA-- the gold standard for privacy?
34 Solutions Assess your liability under State Laws under Constitutional Right to Privacy
35 Solutions Develop Enterprise- Wide Privacy Standards Go beyond HIPAA
36
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