Hands Up! Give Me Your PHI

When a ‘law enforcement’ person demands that a provider disclose PHI, what should you do?  If you have a signed authorization from the individuals whose PHI is being demanded and it expressly allows disclosure to the specific law enforcement requesting the PHI then go ahead.

When the request comes in the form of an email or snail mail subpoena, warrant or summons, you may only disclose that information specifically described in the subpoena, warrant or summons.  Even then you should make sure the warrant or summons is signed by a court or judicial officer and not just the attorney or government employee that wants the information.  Then:

• First, and in all circumstances, give the minimum information necessary to comply with the law enforcement request.
• Confirm and copy the credentials of the law enforcement officer.
• Insist that such request be made in writing.
• Use common sense.  In non-emergency situations, stay with our requirements listed above.  In emergency situations, weigh the threat versus the harm in disclosure.

HIPAA defines a law enforcement official as an officer or employee of any agency or authority of the United States or a state or political subdivision who is 1) empowered to investigate or conduct an official inquiry into a potential violation of law or 2) prosecute or otherwise conduct a criminal, civil or administrative proceeding arising from an alleged violation of law.  You should carefully consider whether someone demanding PHI is someone who is actually empowered to investigate, conduct or prosecute a violation of law.  If you have any questions, you should contact your attorney familiar with HIPAA to guide you through this determination.  We also suggest that you demand a copy of the badge/credentials of anyone claiming to be a law enforcement official.

There is a separate category for identification and location purposes to assist law enforcement in locating a suspect, fugitive, material witness or missing person.  This disclosure is much more limited and may only include the following:

• Name and address
• Date and place of birth
• Social Security Number
• ABO blood type and RH factor
• Type of injury
• Date and time of treatment
• If applicable, date and time of death and
• A description of any distinguishing physical characteristics (height, weight, gender, race, hair color, eye color, the presence or absence of facial hair, scars and tattoos).

Note you may not disclosure any information under this limited identification section that relates to the individuals DNA, DNA analysis, dental records, blood or other tissue typing, samples or analysis.

There is also a separate category for victims of a crime.  A law enforcement official may request and a medical provider may disclose information about a patient who may have been a victim of a crime if the patient agrees to the disclosure.  Such an agreement may be oral, but if oral should be immediately documented in the patient’s records.

If the patient is there is an emergincapacitated or ency circumstance that prevents the provider from obtaining the individual’s agreement, the provider may disclose information to the law enforcement official only if all of the following requirements are met:

1. The law enforcement official represents that the information is not to be used against the victim;
2. It is necessary for immediate enforcement activity; and
3. The hospital/provider, in its exercised professional judgment, believes the release of the information to the law enforcement official is in the best interests of the individual.

Independent Hospital Employee?

We frequently discuss the possibility of doctors in independent practices joining hospital systems.  Many doctors assume their only choice is either independence outside a hospital system or employee status inside a hospital system.

There are other options.  You can negotiate an independent contractor status but affiliate with a specific hospital system.  You can also agree to be an employee but have contract provisions that preserve your independence.  In any event we strongly recommend the following:

1. Negotiate your employment conditions if you choose to be an employee or your independent contractor conditions if you choose to be an independent contractor.  Do you have outside interests?  These should be excluded.  Do you work for several different facilities as perhaps a medical director for one, a clinical employee for another?  Again this can be addressed in the contract.
2. Make sure the hospital system is the right fit for you.  No matter how well a contract is drafted, if the people, the working conditions and the attitudes of the hospital system do not align with yours, it will never be a good fit.
3. Don’t agree to non-compete provisions.  In this day and age all non-compete agreements do is hold down physician wages.  While you may agree that you won’t see patients from the hospital system when you leave for a period of 3 months, 120 days or 6 months, your general right to go practice in the community should not be restricted.  If it is, you should think long and hard before affiliating with a hospital system that demands a non-compete.
4. Be open to new and creative arrangements.  In many cases your interests and the hospital system interests can both be addressed by being creative and open minded.

At Last

CMS last week revealed a proposed overhaul for its pursuit of Medicare Fraud and for improper payment cases.  CMS’s new audit strategy involves asking MACs (Medicare Administrative Contractors) to scan claims and only target providers and suppliers with the highest error rates or billing practices that vary significantly from their class peers.  Right now, MACs basically close their eyes and throw a dart to flag and challenge claims at random.  This has been a disaster and has led to very high volumes of appeals that, when eventually heard after 2 or 3 years, result in the payments being made as originally billed.  In other words, the current and audit and appeals process is merely a system to delay payment to physicians and hospitals.

As proof, there are more than 650,000 pending appeals and if the current system is not changed, that could rise to well over 1 million appeals.

While we applaud CMS finally using some intelligence and judgment in this approach and while we believe it will eventually pay off, one can expect the benefits to be several years away and the CMS appeals back log to continue until 2020 or 2021.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians, practices and hospitals in contract items, federal legal compliance, practice entity creation, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.