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HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT

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HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT

CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C.

    ATTORNEYS AT LAW LITTLE ROCK/FORT SMITH/FAYETTEVILLE www.cgwg.com Scotty Shively sshively@cgwg.com 500 President Clinton Avenue, Suite 200 Little Rock, AR 72201 Telephone (501) 371-9999 Fax (501) 371-0035 Mailing Address P.O. Box 3178 Little Rock, AR 72203

    AMERICAN BAR ASSOCIATION 2004 ANNUAL MEETING

    ATLANTA, TUESDAY, AUGUST 10, 2004

    SECTION OF EMPLOYMENT AND LABOR LAW

    DO YOU WANT TO KNOW A SECRET: HIPAA AND THE NEW MEDICAL INFORMATION PRIVACY REGULATIONS

    HIPAA FOR EMPLOYERS

    Presentation by Scotty Shively

HIPAA Overview

     The Health Insurance Portability and Accountability Act of 1996 (HIPAA)

    amended five federal statutes. It provided for portability of health coverage, added

    an arsenal of laws to the government for fighting fraud and abuse in public health

    plans, and provided for administrative simplification in processing of health care

    claims. HIPAA’s administrative simplification provisions were designed to improve

    the efficiency and effectiveness of the health care system by facilitating the

    electronic exchange of information with respect to financial and administrative

    transactions carried out by health plans, health care clearinghouses, and health care

    providers who transmit information electronically in connection with these

    transactions.

The Administrative Simplification provision raised a concern about the privacy of an

    individual’s health information. The Act promulgated standards and empowered the

    Department of Health and Human Services (DHHS) to issue regulations if Congress

    had not enacted privacy legislation by August 21, 1999. Congress failed to act by

    the deadline and the DHHS issued proposed regulations on November 3, 1999. The

    final regulations for the standards for privacy of individual identifiable health

    information were issued on December 28, 2000, in the last days of the Clinton

    administration. This final rule was the subject of much debate among members of

    the health care community and advocates of privacy rights. DHHS published a

    modified Final Rule on August 14, 2002. This Privacy Rule deals only with a very

    narrow provision in the Administrative Simplification title Title II and is only one of 1

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five standards which addresses Administrative Simplification. However, the Privacy

    Rule is the tail that wags the HIPAA.

     The Administration Simplification provisions of HIPAA (Title II) include HIPAA

    Privacy Rule, HIPAA Security Rule, and the Transactions and Code Set Standards.

     The Privacy Rule requires the adoption of comprehensive privacy policies and

    procedures to safeguard protected health information (“PHI”). The Privacy Rule

    allows use or disclosure of PHI in the following situations:

    ? to the person who is the subject of the PHI (45 C.F.R.

    ?164.502(a)(1)(i));

    ? to carry out treatment, payment or health care operations (“TPO”) (45

    C.F.R. ?164.502(a)(1)(ii));

    ? pursuant to an allowed exception (45 C.F.R. ?164.502(a)(1)(iii));

    ? pursuant to a valid authorization (45 C.F.R. ?164.502(a)(1)(iv));

    ? where the PHI has been de-identified (45 C.F.R. ?164.502(a)(2)).

     The Privacy Rule became effective on April 14, 2003 for providers, clearing

    houses, and health plans of over $5 Million; it became effective for health plans of $5

    Million and under on April 14, 2004.

     The Security Rule protects electronic information or information transmitted

    electronically. The Security Rule requires Covered Entities to promulgate a risk

    management program to evaluate the value of the assets, the potential for a loss or

    disclosure, and the cost of additional countermeasures. The Security Rule becomes

    effective on April 20, 2005, except for small health plans which have until April 21,

    2006.

    HIPAA Privacy Rules and Security Rules are not identical so using the same

    policies and procedures for both will not work. The Privacy Rules are concerned

    with “what and why” all health information, electronic and non-electronic, is protected;

    the Security Rules deal with “how” election information is protected.

     The Transactions and Code Set Standards established standardized

    computer formats and medical codes for specified billing and claims administration

    transactions. This phase applies to Covered Entities with an effective date of

    October 16, 2002 (October 16, 2003 for small health plans).

Purpose of HIPAA Privacy

     Prior to passage of HIPAA, there was no comprehensive federal law that

    addressed the use and disclosure of patient health care and payment information.

    State laws were inconsistent and contradictory, only covered specific types of

    records (e.g., HIV/AIDS), or did not exist at all. Many state laws fail to provide such

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basic protection as ensuring a patient’s legal right to see a copy of his or her own

    medical records. (65 F.R. 82463-464). Factors adding to the concern over

    confidentiality of medical information were the growth in the number of companies

    providing care and processing claims, growth in use of electronic information

    technology (electronic claims processing and access to the internet), and increasing

    ability to collect highly sensitive information as a result of advances in scientific

    research. (65 F.R. 82463).

Important Dates and Deadlines for Administrative Simplification Provisions

    August 21, 1996 HIPAA enacted; contains “Administrative 42 U.S.C. ??1320d-2 et

    Simplification” provisions seq. Dec. 28, 2000 Final Privacy Rule published by Clinton 65 F.R. 82462

    Administration

    August 14, 2002 Final Privacy Rule (as modified) 67 F.R. 53182,

    45 C.F.R. ? 160, 164 October 16, Compliance deadline for electronic

    2002 transactions (unless extended)

    Feb. 20, 2003 Final Security Rule published 45 C.F.R. ??160.103,

    162.103 April 14, 2003 Final compliance with Privacy Rule for all 45 C.F.R. ? 164.534

    covered entities except “small health

    plans”

    April 14, 2004 Final compliance with Privacy Rule for 45 C.F.R. ? 164.534(b)(2)

    “small health plans” ($5 Million or less)

    effective date

    July 30, 2004 Employer Identifier Standard all 67 F.R. 38009

    covered entitles except small health plans

    - effective date

    April 20, 2005 Final compliance with Security Rules 45 CFR ?164.318

    (except for small health plans)

    August 1, 2005 Employer Identifier Standard for small

    health plans

    April 21, 2006 Final compliance with Security Rule for

    small health plans

    May 23, 2007 Final compliance re: National Provider 69 F.R. 3434

    Identifier for all but small health plans

    May 23, 2008 Final compliance re: National Provider

    Identifier for small health plans

    Who is covered by the Administrative Simplification Standards of HIPAA?

    In 45 C.F.R. ?160.103, “Covered Entities” are defined as:

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    ? Group health plans

    ? Health care clearinghouses

    ? Health care providers that transmit information in electronic form

    ? Employers, in their role as employers, are not one of the defined

    “covered entities.”

    Employers are indirectly regulated by HIPAA if they are a plan sponsor of ERISA health plans.

HIPAA’S Application To Employers

     Employers were one of the first groups to gain awareness of the HIPAA Act

    because the Title I portability provisions became effective in 1998. Employers who

    offered health insurance to employees concentrated on the provisions relating to

    special enrollment periods, certificates of creditable coverage, and other provisions

    related to the portability of coverage.

    Employers may be directly covered as a provider entity if they have an on-site health clinic or provide on-site healthcare services for which they bill electronically.

    However, most employers are indirectly covered because they sponsor employee

    health plans that are covered entities. The extent to which employers are impacted

    depends upon whether the group health plan is fully-insured or self-insured.

    Employers are impacted by HIPAA because they often need protected health information (PHI) about an employee which is maintained by a covered entity.

    Finally, employers are impacted because HIPAA has created a heightened sense of

    privacy not only for medical records, but for other information pertaining to

    employees and other individuals.

HIPAA Basics for Privacy Rule

Covered Entities (defined at 45 C.F.R. ?160.103)

     The first step in HIPAA analysis is determining whether an employer is a

    covered entity. A covered entity includes health plans, health care clearing houses,

    and health care providers who transmit any health information in electronic form. It

    is important to note that this electronic transmission condition applies only to health

    care providers. Health plans and health care clearing houses are covered

    regardless of whether they transmit in electronic form.

     A health care provider is defined as a provider of medical or services

    described under Medicare Part A or Part B (which encompasses most typical health

    care services) or any other person or organization that furnishes, bills, or is paid for

    health care in the normal course of business.

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     A health care clearinghouse is an entity, such as a billing service, repricing

    company, or value-added network that either processes the health information

    received from another entity into a standard transaction or receives a standard

    transaction and processes it into nonstandard data content.

     A health care plan is defined as any individual or group that provides or pays

    for the cost of medical care. This includes HMOs, Medicare and Medicaid plans,

    issuers of health insurance, Medicare supplemental-care policies and long-term care

    policies, ERISA employee welfare benefit plans, active military personnel health care

    programs, veterans’ health care programs, and others. Specifically excluded from

    the definition of health plan, even though they may provide for the payment of

    medical care, are Workers’ Compensation plans, casualty and property insurance

    plans, and disability insurance programs. An employer health plan with fewer than

    50 participants and which is self-administered by the employer is also excluded from

    the definition of health plan.

Protected Health Information (PHI) (defined at 45 C.F.R. ? 160.103)

     Protected health information (PHI) is individually identifiable information, including demographic information, related to the past, present, or future physical or

    mental health or condition, the provision of health care to an individual, or the past,

    present, or future payment for such health care, that is created or received by a

    covered entity. Individually identifiable information (45 C.F.R. ? 164.514(b)(2)

    covers a broad range of identifiers of the individual, his relatives, employer or

    household members, including:

    ? name, address, telephone numbers, and email addresses

    ? social security number

    ? account numbers used to identify the patient in medical records, health

    plans

    ? certificate/license numbers, vehicle and device identifiers, serial

    numbers

    ? biometric identifiers (finger/voice prints), photographic images

    ? all elements of dates (except year) including birth date, admission date,

    discharge date, date of death, and all ages over 89

     Medical information found in employee records is not PHI. There is also an

    exception for medical information created pursuant to work place surveillance

    obligations which is discussed in more detail later in this presentation.

Employer-Sponsored Health Plan

     Although most employers are not covered in their role as an employer, they

    may sponsor employee health plans which are covered entities. In addition to

    sponsoring a plan, the employer may also be a plan administrator and plan fiduciary

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under ERISA. HIPAA recognizes that, under ERISA, a plan and its plan sponsor are

    separate legal entities. However, in practical terms it is the plan sponsor, i.e., the

    employer, that typically acts on behalf of the plan because the plan has no

    employees. Therefore, it will be the employer’s responsibility as the plan sponsor

    and fiduciary to ensure the plan’s compliance with the HIPAA regulations. An

    employer must examine each benefit it offers (i.e., major medical, dental, optical,

    EAP, health reimbursement account, flexible spending account, and specialty

    medical policy such as cancer policy) to determine if it meets the HIPAA definition of

    a health plan and, if so, examine the employer's responsibilities under HIPAA.

    These responsibilities can vary from plan to plan.

     Employers offering self-insured health plans will be the most directly affected.

    They will be responsible for the plan’s full compliance with HIPAA regulations, even

    if they use a TPA for plan administration. Employers offering fully insured plans will

    be able to delegate many compliance functions to the insurer but the employer’s

    group health plan will retain some responsibilities.

    1. Self-Insured Health Plans

     In general, a self-insured or self-funded group health plan sponsored by an

    employer must comply with all health plan requirements under the Privacy Regulations. There is an exception for self-insured, self-administered plans with

    under fifty participants. The following are key provisions which apply to all health

    plans, but raise special issues in the context of an employer-sponsored health plan:

     a. Notice of Privacy Practices (NPP). The group health plan must have a

    notice of privacy practices available for any enrolled participants. The notice be

    distributed only to named insured, i.e. employees, but not to dependents. The notice

    must state that the health plan, or the health plan’s insurer or HMO may disclose

    PHI to the employer, as plan sponsor, for plan administration functions. See

    generally, 45 C.F.R. ? 164.520.

     NPP must be provided no later than the compliance date for the health plan

    (generally April 14, 2004), to new employees at the time of enrollment, and within 60

    days of a material revision of the notice to individuals then covered by the plan. At

    least every three years the plan must notify covered individuals of the availability of

    the NPP and how to obtain the notice. 45 C.F.R. ? 164.520(c)(1).

     b. Authorizations. A health plan does not need an individual’s consent or acknowledgment of its notice of privacy practices to use or disclose PHI for

    treatment, payment, or health care operations. (45 C.F.R. ? 164.506.) These

    activities include claim payment, stop-loss claims, subrogation, evaluating plan

    performance, underwriting, auditing, and medical reviews. A number of other

    disclosures do not require consent or authorization, including disclosures to comply

    with Workers’ Compensation laws. 45 C.F.R. ? 164.510 and .512.

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     Other uses and disclosures of information by the health plan require a written

    authorization from the individual. See 45 C.F.R. ? 164.508. Examples of

    uses/disclosures that would require such authorization include any disclosures by

    the health plan to the plan sponsor for non-plan purposes or providing names of

    individuals covered by the medical plan to a long-term care insurer for marketing

    purposes. Employers should conduct an inventory of the plan’s PHI uses and

    disclosures to determine which, if any, require such authorization.

     c. Request for Access and Amendments; Accounting for Disclosures.

    (45 C.F.R. ?? 164.524; 526; and 528.) The health plan must establish a procedure

    for handling these requests. If most of the health plan PHI is held by a TPA, the

    TPA may perform these functions on behalf of the health plan. If so, these services

    should be made an obligation of the TPA under the administrative services contract,

    and appropriate policies and procedures should be developed. The ultimate

    responsibility for these functions remains with the health plan, however. The notice

    of privacy practices should explain whether individuals should contact the TPA or the

    employer with these requests.

     d. Complaints. (45 C.F.R. ? 164.530(d)) The health plan must establish a procedure to handle privacy complaints from individuals. The notice of privacy

    practices should explain whether individuals should contact the TPA or the employer

    with complaints.

     e. Business Associate Agreements. (45 C.F.R. ? 504(e)) A health plan

    will typically outsource some plan administration activities. Any outside entity that

    receives PHI from the plan in order to perform functions on behalf of the plan is a

    business associate of the health plan. Business associates may include, for

    example, TPAs, preferred provider organizations, utilization review companies,

    subrogation recovery firms, accounting firms, insurance brokers, consultants, and

    outside legal counsel. The plan must have the required business associate

    agreements in place with each such business associate. The business associate

    agreement provisions may be incorporated in another contract, such as an

    administrative services agreement with a TPA.

     f. Administrative Requirements. The employer-sponsored health plan is

    also subject to the Privacy Regulations’ administrative requirements. See 45 C.F.R.

    ? 164.530. The plan must:

    ? Designate a privacy official;

    ? Document the plan’s privacy policies and procedures;

    ? Conduct privacy training;

    ? Establish information security measures;

    ? Establish a system for reporting noncompliance; and

    ? Establish and enforce sanctions for policy violations.

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     In addition, to the requirements applicable to all health plans, the following are

    some special provisions that apply only to employer-sponsored health plans:

     g. Limited Employer Access to PHI. (45 C.F.R. ? 164.504(f).) Employers

    may not access any health plan PHI for non-plan purposes, and especially not for

    employment-related purposes. For example, an employer may not reassign an

    employee to another job based on information from the health plan that the

    employee is being treated for alcoholism. An employer receives personal

    information about the employees from a variety of sources, including directly from

    the employee. The concern of the Privacy Regulations, however, is information

    received from or through the employer’s health plan.

     h. Firewalls. Employers must establish a “firewall” between plan-related

    uses of PHI and general corporate or employment-related uses of PHI. 45 C.F.R. ?

    164.504(f)(2)(iii). Employers who currently have the same individual or group of

    individuals handling all benefit plans plus human resource matters should consider

    separating these functions. In small organizations where having different staff

    members for these functions is not feasible, the employer should, at a minimum,

    establish policies and conduct training regarding the confidentiality of PHI and the

    need to restrict uses as well as disclosures.

     TPAs contacting an employer will need to be careful about the staff members

    at the employer’s offices with whom they communicate, so that PHI is communicated only to authorized personnel. Covered entitles and business associates will need to

    carefully consider the appropriate avenues of communication.

     Employment records are not PHI, even if they contain health information

    about an employee. Employment records are not subject to this HIPAA “firewall”

    requirement. Employment records may include medical information needed for an

    employer to carry out its obligations under the Family and Medical Leave Act,

    Americans with Disabilities Act, and similar laws, as well as files or records related to

    occupational injury, disability insurance eligibility, sick leave requests and

    justifications, drug screening results, workplace medical surveillance, and fitness-for-

    duty tests of employees. Although not subject to the HIPAA "firewall," these type

    records have always been subject to "firewall" treatment under the Americans with

    Disabilities Act and must be kept separate from other personnel records.

     i. Plan Document. The health plan’s plan document must be amended to include a number of specific provisions relating to privacy. See 45 C.F.R. ?

    164.504(f). No disclosures from the health plan to the employer are permitted until

    the plan document is amended. The plan document must identify all permitted and

    required uses and disclosures of PHI by the employer for plan administration

    purposes. The plan document must state that the employer will not use PHI

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received from the plan for employment-related actions or decisions, or in connection

    with any of the employer’s other health plans. The plan document must identify

    which employees or classes of employees of the plan sponsor, or other persons

    under control of the plan sponsor, are to be given access to PHI (e.g., a benefits

    clerk, a benefits committee, or claims appeal committee). In addition, the employer

    must ensure that there is adequate separation between the employer and the plan to

    protect the privacy of plan-held information.

2. Insured Health Plans

     Employer-sponsored health plans that offer benefits through an insurance

    contract with a health insurance company or HMO (Insured Plans) are also covered

    entities under HIPAA. For Insured Plans, however, most of the compliance

    responsibilities discussed above will fall on the insurer or HMO, since they are

    already covered entities under HIPAA. For example, the insurer or HMO will

    typically provide the Notice of Privacy Practices and handle compliance with regard

    to the individual’s right to access and amend their records, and to obtain an

    accounting of disclosures. The policy behind this limited-compliance approach for

    the Insured Plan is that the insurance company or HMO will be providing these

    individual rights and privacy protections in its own role as a covered entity, and the

    incremental value of having the employer’s Insured Plan duplicate these activities

    would not justify the additional burdens on the plan sponsor. The obligations of an

    employer that sponsors an Insured Plan with regard to HIPAA compliance are

    determined by the approach the plan takes to PHI.

     a. The Hands-Off Approach. Insured Plans can reduce their privacy

    obligations if they take a “hands-off” approach to PHI. An employer-sponsored

    health plan is not subject to most Privacy Regulations requirements if it provides

    benefits solely through an insurance contract with an insurer or HMO. To qualify

    under this “hands-off” approach, the Insured Plan may not create or receive any PHI,

    except in two limited situations. It may receive and use enrollment and

    disenrollment information and it may receive and use summary health information for

    the purpose of obtaining premium bids or modifying, amending, or terminating the

    plan. 45 C.F.R. ? 164.504(f)(I)(ii). Even under this “hands-off” approach, there are

    two obligations on the Plan sponsor. It cannot retaliate against or intimidate an

    employee exercising his or her rights under the Privacy Regulations or require that

    an employee waive his or her right to file a complaint with DHHS as a condition for

    eligibility or participation in the plan. 45 C.F.R. ? 164.530 (g), (b), (j), and (k). If the

    Insured Plan shares any PHI with the plan sponsor (employer) other than

    enrollment/disenrollment information and summary health information, the plan

    document must be amended as described above.

     Most employers, as plan sponsors, have been more "hands on" in the past in

    helping employees with billing or coverage problems with either the insurance

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company or the provider. A "hands off" employer must discontinue this practice

    unless it obtains a signed authorization from the employee.

     b. The Hands-On Approach. If the Insured Plan does create or receive PHI

    in addition to enrollment/disenrollment and summary health information, i.e., it takes

    a “hands-on” approach, it is generally subject to all of the Privacy Regulations requirements, including all of the administrative requirements discussed above, such

    as appointing a privacy official, documenting its policies and procedures, and

    providing training for its workforce. The responsibilities with regard to the notice of

    privacy practices are reduced, however. The Insured Plan must prepare and

    maintain a notice of privacy practices and provide that notice upon request (to

    anyone), but is not required to distribute the notice to all plan participants.

     All health plans, including all Insured Plans, must limit employer access to

    PHI as described above and may not use health plan PHI for employment purposes.

Employer’s Receipt and Use of Employees’ Medical Information

     HIPAA provides exceptions from the definition of PHI for medical information

    found in employee records (45 C.F.R. ? 164.501) and for medical information

    created pursuant to OSHA medical surveillance obligations. (45 C.F.R. ?

    164.512(b)(1)(v))

     Employers may have an obligation under OSHA or state laws to conduct

    medical surveillance on its employees. OSHA is authorized to adopt standards

    requiring medical screening and surveillance in certain industries. Medical

    screening is a method for detecting disease or bodily dysfunction in an individual

    without current symptoms, but who may be at high risk for certain adverse health

    outcomes. Medical surveillance, on the other hand, involves the analysis of health

    information to look for problems that may be occurring in the work place that require

    targeted prevention, and thus serves as a feedback loop to the employer. Thus,

    OSHA can require medical surveillance to determine whether a given occupation

    presents increased risks to employees, and, if it does, OSHA can then require

    medical screening of employees in that occupation to monitor their exposure to the

    increased hazards. Because an employer receives these medical records in its role

    as an “employer,” it has no HIPAA responsibilities with respect to them. A provider,

    however, does have HIPAA responsibilities before it may release these medical

    records to an employer.

     In order for a covered entity to disclose such information to the employer,

    several requirements must be satisfied. First, the covered entity must either be an

    on-site clinic or a clinic providing health care to an individual at the employer’s

    request. The employer’s request must be in relation to “medical surveillance of the

    workplace” or to evaluate whether the individual has a work-related illness or injury.

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