Talking Health

HIPAA privacy rules (45 CFR 164.510(b)) permit covered entities to discuss relevant healthcare information with a spouse, family members, friends or other persons identified by a patient in the patient’s care or for payment of healthcare.  Obviously, if the patient is present, prior to the disclosure, and has capacity, the patient can authorize such disclosures.

If the patient is not available or able to indicate consent or non-consent, then the covered entity may share information with the family or the other persons identified above if it can reasonably infer that the patient does or would not object.

The privacy rule expressly permits you to use your professional judgment and experience with common practice to make common sense decisions about the patient’s best interest in allowing another person to act on behalf of or assist the patient in picking up prescriptions, medical supplies or x-rays.

It is all about common sense within the express parameters the patient may have identified when the patient was able to make those decisions.

Indiana Medical Malpractice Act

Although Indiana’s Medical Malpractice Act (MMA) has been around for years, new questions arise.  Recently the United States Seventh Circuit Court of Appeals sent two questions to Indiana Supreme Court for clarification of the MMA.  The first question asked by the Seventh Circuit is whether Indiana’s MMA prohibits Indiana’s Patient Compensation Fund from contesting whether the MMA applies to a claim after the claimant concludes a court ordered settlement with a covered healthcare provider.

The second questions asks whether Indiana’s MMA applies to claims brought against providers for individuals who did not receive medical care from the provider but who are injured as a result of the providers negligence in providing medical treatment to someone else.

These questions arose in a case when an automobile accident occurred and a wife and daughter were killed after the other driver ran a red light and struck their vehicle.  The driver of the red-light running vehicle died two weeks after the crash.  The driver apparently took two prescription pills prior to the accident.  Blood tests after the accident indicated that the driver had been under the care of two healthcare providers who prescribed some eight different medications to the driver including an opioid and muscle relaxers.  The husband and father of the wife and daughter killed in accident claimed that the red-light running driver was impaired as a result of the medication she had been prescribed and he filed a malpractice suit against the red-light running driver’s healthcare providers for negligence under several theories.  Stay tuned for the Indiana Supreme Court’s view on these two questions.

Accurate Provider Directories

Current law requires healthcare insurers/plans have an accurate directory of those providers who can provide care under the plan.  Reports have indicated the plans have wildly inaccurate, out-of-date, incomplete and plain wrong information about what doctors and what physician groups provide care under the plan.  Complaints have stated that many of the listed providers are in fact not providers or the contact information for the provider is inaccurate.

Recently, a company sent me an email bragging that if you would pay them money, they would help you reach an 84% accurate directory data.  It is stunning to think that a company believes that reaching 84% is even adequate.  Instead, the company is bragging about it and wanting health insurance plans to pay them to reach this sad goal.

It is likely that during this year or early next year, CMS will start taking active measures in this area and I do not believe that an 84% accuracy rate will be sufficient to avoid CMS penalties.

Tell No Lies

CMS has notified hospitals that some are breaking federal rules that require disclosure of payor-negotiated prices.  These notices are apparently a result of CMS audits of hospital websites.

These CMS warnings give the hospital 90 days to address shortcomings and CMS will either close its inquiry, deliver a second warning letter or request a corrective action plan from the hospital.  We expect hospitals who receive any civil monetary penalty will also be named on CMS’s website.  Several industry analysts have indicated that approximately 65% of the hundred largest US hospitals were non-compliant as of March.  Hospitals have complained that the rules are not clear and that enforcing ambiguous rules is unfair to the hospital.  CMS feels its rules are clear and that costs of compliance are much less than claimed by hospitals.

Later this year should see either higher compliance rates or more penalties.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of 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.