Industry experts say the guidance is a good start, but underlying problems remain unresolved
HIPAA privacy guidance hints at upcoming changes in regs
Industry experts say the guidance is a good start, but underlying problems remain unresolved
Industry experts are generally pleased with the new Health Insurance Portability and Accountability Act (HIPAA) privacy guidance released July 6 by the Department of Health and Human Services (HHS). But many are saying the best news included in the guidance may be that HHS plans to make farther-reaching changes through the rulemaking process.
"[The guidance] certainly answered some of the questions we had," says Greg Warner, director of compliance at the Mayo Clinic in Minneapolis. "It also provided optimism that some of the other issues they could not address because of legislative limitations will be addressed through the rulemaking process."
Mary Grealy, president of the Healthcare Leadership Council in Washington, DC, says HHS has clearly recognized that there are areas they will have to change through rulemaking. "This guidance does as much as it can do," she explains. "But it can’t do a lot of what we need to have done, especially in the area of consent."
In many respects, the guidance underlines just how complex the privacy portion of HIPAA really is. For example, if patients are being referred to another physician or are being referred to outpatient surgery, little can be done, Grealy says. That is because patients can’t make an appointment until they go in and fill out the new consent form.
That’s one key area HHS says it hopes to address through rulemaking, Grealy notes. Likewise, if patients have not been to a certain pharmacy, doctors still are unable to phone in a prescription until the patient has gone to the pharmacy and filled out the consent form.
HHS emphasized that the guidance document is "the first of several technical assistance materials" that it plans to issue to provide clarification. "We anticipate that there will be many questions that will arise on an ongoing basis which we will need to answer on an ongoing basis," according to the agency. HHS says it continues to review the input it received during the recent public comment.
Here are some of the clarifications highlighted by HHS:
- Phoned prescriptions. HHS says a change will permit pharmacists to fill prescriptions phoned in by a patient’s doctor before obtaining the patient’s written consent.
- Referral appointments. The agency says a change will permit direct treatment providers receiving a first-time patient referral to schedule appointments, surgery, or other procedures before obtaining the patient’s signed consent.
- Allowable communications. HHS says a change will increase the confidence of public entities that they are free to engage in whatever communications are required for quick, effective, high-quality health care, including routine oral communications with family members, treatment discussions with staff involved in coordination of patient care, and using patient names to locate them in waiting areas.
- Minimum necessary scope. The agency says a change will increase covered entities’ confidence that certain common practices, such as use of sign-up sheets and X-ray lightboards and maintenance of patient medical charts at bedside, are not prohibited under the rule.
Dan Mulholland, a partner with Horty Springer in Pittsburgh, says he also is encouraged that HHS indicated it may re-evaluate the privacy regulation to ensure that parents have appropriate access to information about the health and well-being of their children.
But he also warns that the HHS guidance does not eliminate the threat facing providers in many areas. He says consumer groups or individuals still can sue providers, and judges may look at the underlying law and decide to let the case proceed.
Mulholland says that gets back to the fact that the privacy bill essentially was hijacked by too many academics and others who lack practical experience in health care.
According to Grealy, the main concern of the legislation was the disclosure of personal information for nonhealth care operations and commercial use, as well as disclosure to employers, which can result in discrimination.
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