Privacy, Security, and Fraud Law & Ethics in Health Professions

Learning Outcomes

• 8.1: List the U.S. constitutional amendments and privacy laws that pertain to health care.
• 8.2: Outline the responsibilities of health care practitioners regarding privacy, confidentiality, and privileged information.
• 8.3: Distinguish between HIPAA’s privacy and security rules.
• 8.4: Describe federal laws covering fraud and abuse within the health care environment.

Privacy

• Definition: Freedom from unauthorized intrusion.
• Constitutional Basis:
  • Right to privacy derived from several amendments:
  • First Amendment
  • Third Amendment
  • Fourth Amendment
  • Fifth Amendment
  • Ninth Amendment
  • Fourteenth Amendment

Federal Privacy Laws

• Data Collection Principles:
  • Information collected must be necessary for business functions.
  • Access to personal information is limited to needed personnel.
  • Personal information cannot be released without individual consent.
  • Individuals must be aware of data collection and can verify accuracy.

Confidentiality

• Definition: The act of keeping information private and not disclosing it to unauthorized persons.
• Privileged Communication: Information that remains confidential within professional relationships.

Maintaining Confidentiality

Key Practices:

• Obtain signed consent from patients before sharing information.
• Avoid making moral judgments about patients.
• Treat financial information as confidential.
• Avoid using patient names in public conversations.
• Be discreet when leaving voicemail messages.
• Keep patient records out of public view.
• Limit disclosures to legal exceptions only.

Waiving Confidentiality

Confidentiality may be waived under certain conditions:

• Third Party Requests: For medical examinations funded by third parties.
• Subpoena Situations: Patient records are legally required during lawsuits.
• Signed Waiver: When the patient consents to release information.

HIPAA Standards

• Standard 1: Transactions and Code Sets.
• Standard 2: Privacy Rule.
• Standard 3: Security Rule.
• Standard 4: National Identifier Standards.

HIPAA Standard 2: Privacy

• Protected Health Information (PHI) must be protected from unauthorized disclosure regardless of format:
  • Spoken
  • Written
  • Electronic
• PHI Characteristics:
  • Relates to past, present, or future health conditions.
  • Includes documentation of healthcare provision.
  • Covers payment details for healthcare.

Covered Entities and Business Associates

• Covered Entities (CE): Providers conducting transactions electronically, including employees and others under their control.
• Business Associates (BA): Individuals or organizations providing services for CEs that involve access to PHI.

HIPAA Permissions

Disclosures to Patients:

• Permitted Uses:
  • Treatment, payment, or operations involving patient information.
• Informal Permission: Patients can agree or object to certain disclosures.

Incidental Uses and Disclosures:

• Must take reasonable precautions.

Public Interest Activities:

• Consist of 12 national priorities.

Limited Data Set:

• Used for research excluding direct identifiers.

HIPAA’s Security Rule Requirements

• Protecting Electronic Health Records:
  • Secure transmission and storage.
  • CEs face substantial fines for non-compliance.
  • HITECH rule enhances privacy and security measures.

Security Rule Requirements

• CEs must ensure:
  • Confidentiality, integrity, and availability of PHI.
  • Protection against anticipated threats to information security.
  • Measures to prevent impermissible uses or disclosures.
  • Compliance within their workforce.

Breach Notification

• A breach is considered an unauthorized use or disclosure of PHI.
• Breaches involving over 500 records must notify the media and affected patients.
• Since 2009, HHS maintains a database of PHI breaches, and BAs must follow these guidelines as well.
• Fines for breaches can be significant.

Fraud and Abuse in Health Care

• The Medicare Fraud Strike Force combines various law enforcement levels.
• Fraudulent spending remains concealed and is on the rise.

Federal False Claims Act

• Allows individuals to file civil actions for false claims on behalf of the federal government.
• Qui Tam: Whistleblowers can receive a portion of court-awarded damages.

Federal Anti-Kickback Law

• Prohibits knowingly receiving or paying anything of value to influence healthcare referrals.
• Penalties include fines, prison terms, and exclusion from federal programs.

Stark Law

• Restricts physician referrals to entities in which they or immediate family have a financial interest.
• Applies specifically to Medicare and Medicaid programs.

Criminal Health Care Fraud Statute

• Prohibits schemes intending to defraud health care programs.
• Covers actions to obtain money or property through false pretenses related to healthcare benefits.