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To: NoGrayZone

HIPPA Is only so YOU can’t see your files.

Everyone else with the flimsiest of reasons can.

“HIPAA—Exceptions Providing Law Enforcement Officials and Social Service Providers Access to Protected Health Information
Alexandra Podrid1

The new Privacy Rule, the Health Insurance Portability and Accountability Act (HIPAA), that was enacted by Congress in 1996 and amended by the Department of Health and Human Services (DHHS) in 2002, may affect the ability of prosecutors, police officers and social service agencies to administer child abuse cases, because it prevents certain health care affiliates from disclosing protected health information.

HIPAA was created to provide extensive, nationwide protection to medical information by regulating how “covered entities” use and disclose protected health information.2 Covered entities include health plans, health care clearinghouses and any health care provider that transmits health information electronically.3 Congress established HIPAA to enable people to switch jobs without losing their health insurance, and not to interfere with law enforcement or social services. The civil and criminal penalties attached to HIPAA violations,4 however, may deter covered entities from disclosing protected health information, even when they are authorized to do so.

DHHS enacted a number of exceptions that allow covered entities to provide protected health information to law enforcement officials and social service agencies. It is imperative that law enforcement officials familiarize themselves with these regulations, so that they can continue to obtain indispensable medical evidence to effectively investigate and prosecute child abuse cases. Social service providers must also comprehend the HIPAA exceptions so that they may continue to serve victims of abuse, neglect and domestic violence. This article maps the exceptions law enforcement officials and social service agencies can utilize when requesting protected health information from covered entities.

Exceptions for Law Enforcement Access

There are a number of exceptions that permit law enforcement officials to access protected health information. These exceptions bypass the requirement that the individual consent or be given an opportunity to decide whether his or her protected health information will be disclosed.

•Required by law/mandatory reporting laws: A covered entity may disclose protected health information to law enforcement officials if it is required to do so by law.5 An example would be a state law mandating the reporting of certain wounds or other physical injuries.

•As permitted by a judicial officer: Law enforcement officials may obtain protected health information from a covered entity if they have a court order, warrant, subpoena or summons issued by a judicial officer or a grand jury subpoena.6

•Restricted access for administrative requests: An administrative subpoena may be used to obtain protected health information. In order to use an administrative subpoena, however, the following criteria must be met: 1) The information sought must be relevant and material to a legitimate investigation, 2) the request must be specific and limited in scope to meet its intended purpose, and 3) information that does not reveal the individual’s identity could not reasonably be substituted for the information sought.7

•Restricted access for the purpose of identifying or locating a suspect: Except for disclosures required by law, information provided to law enforcement officials for the purpose of identifying or locating a suspect, fugitive, material witness or missing person is limited. In response to such a request, a covered entity may disclose 1) name and address, 2) date and place of birth, 3) social security number, 4) blood type, 5) type of injury, 6) date and time of treatment, 7) date and time of death if applicable and 8) description of distinguishing physical characteristics.8 When the information sought is for identification and location purposes, a covered entity may not provide any information related to an individual’s DNA or DNA analysis, dental records or analysis of body fluids or tissue.9

•Victims of a crime: Health care entities may also provide law enforcement officials with an individual’s protected health information if the individual is a suspected victim of a crime.10 In such cases, covered entities can only disclose information if 1) the individual agrees to disclosure, or 2) the covered entity cannot obtain the individual’s agreement because of incapacity or an emergency.11 In cases of incapacity or emergency, it is necessary that 1) the law enforcement official represents that such information is needed to determine whether a crime was committed by someone other than the individual and will not be used against the victim, 2) the law enforcement official represents that law enforcement activity depends on disclosure and would be materially affected by waiting for the individual’s consent, and 3) the covered entity, while exercising professional judgment, determines that disclosure is in the best interest of the individual.12

•Decedents: If a health care provider suspects that an individual has died as a result of criminal conduct, it may disclose protected health information about the decedent to a law enforcement official.13

•Crime on premises: If a covered entity believes in good faith that protected health information is evidence of criminal conduct that occurred on the premises of the covered entity, it may disclose the information to a law enforcement official.14

•Reporting crime in emergencies: A health care provider rendering emergency medical care off the premises may disclose protected health information to a law enforcement official if the disclosure is needed to alert law enforcement to 1) the commission and nature of a crime, 2) the location or victims of such crime, and 3) the identity, description and location of the perpetrator.15 This exception does not apply if the covered health care provider believes the emergency is a result of abuse, neglect or domestic violence.16

•Victims of abuse, neglect or domestic violence: A covered entity that believes an individual has been the victim of abuse may disclose the individual’s protected health information to a government agency that is authorized by law to receive reports of abuse, neglect or domestic violence. Such disclosures are only permitted if at least one of the following applies: 1) the disclosure is required by law, 2) the individual has agreed to the disclosure, 3) the covered entity is expressly authorized by law to disclose such information and the disclosure is necessary to prevent serious harm to someone, and 4) the covered entity is expressly authorized by law to disclose such information and the law enforcement agency represents both that the information will not be used against the individual and that law enforcement activity would be significantly hindered by waiting to get the individual’s consent.17 In these cases, the covered entity must promptly inform the individual that the disclosure was made, unless 1) informing the individual would place the individual at risk of serious harm or 2) the covered entity would be informing the individual’s personal representative who is responsible for the abuse, neglect or domestic violence.18

•Averting a serious threat to health or safety: A covered entity may disclose protected health information if it believes: 1) the disclosure is needed to prevent or lessen a serious and imminent threat to the health or safety of a person or the public, and the recipient is able to lessen the threat; or 2) the disclosure is critical to law enforcement’s ability to identify or apprehend an individual who either appears to have escaped from the custody of law enforcement or made a statement admitting participation in a violent crime.19 A covered entity acting on such a belief is presumed to be acting in good faith. An entity covered by HIPAA may not disclose protected health information based on an individual’s admitted participation in a violent crime if the statement was made either during therapy, counseling or treatment aimed at lessening the individual’s propensity towards violence, or through a request for such therapy, counseling or treatment. The protected health information that may be disclosed under this exception is subject to the same limitations as placed on the exception made for identifying and locating a suspect.20

•Jails, prisons, law enforcement custody: Correctional institutions and law enforcement officials may obtain the protected health information of individuals in their lawful custody. In such cases, however, a covered entity may only disclose information if the requesting body represents that the protected health information is necessary: 1) to provide health care to the individual, 2) to protect the health and safety of the individual or other inmates, 3) to protect the health and safety of officers, employees or others at the correctional institution, 4) to protect those involved in the transfer or transporting of the individual, 5) to promote law enforcement on the premises of the correctional institution, or 6) to maintain and administer safety, security and good order in the correctional facility.21 An individual is not subject to this exception when released on parole, probation, supervised release, or otherwise is no longer in lawful custody.

And there is more but you get the drift.

32 posted on 04/10/2013 7:44:35 AM PDT by Adder (No, Mr. Franklin, we could NOT keep it.)
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To: Adder

Time to start seeing a cash only doctor, whom is NOT beholden to the feds.

There are many more of these doctors popping up. Time to find one.

52 posted on 04/10/2013 8:17:24 AM PDT by NoGrayZone (For evil to triumph it is only necessary for good men to do nothing.)
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