Title: RE: Here is a good Privacy Issue that will cause problems

I would argue that releasing information that a patient has been restricted to one pharmacy is not a disclosure under HIPAA. A disclosure must contain a person's identifying information and information on their health status. I don't see how a pharmacy restriction would be considered information about health status other than such a restriction would imply abuse of some sort. But that would be like the information that you are in the hospital would imply that you were sick.

-----Original Message-----
From: Drexler, Deborah (EHS) [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, January 15, 2003 3:58 PM
To: WEDI SNIP Privacy Workgroup List
Subject: RE: Here is a good Privacy Issue that will cause problems


The issue here is whether a covered entity which has information that an individual is "drug seeking" can disclose it to someone else, in an effort to curb the abuse.  Depending on who is disclosing the PHI to whom, you can probably argue that the disclosure is authorized because it is either T, or P, or O. 

Here is an example of one way it could work.  A payer realizes it has paid for several prescriptions for the same narcotic in a week, each written by a different prescriber.  This is an indication of drug abuse.   The payer deals with this problem by putting the individual on a restricted pharmacy list -- the individual can now get his prescriptions filled at only one particular pharmacy (pharmacy A).   Pharmacy A is instructed by the payer that if they are asked to fill duplicate prescriptions, they they are to contact the prescriber to validate the prescription.  Otherwise the pharmacist won't get paid.  In this case, you could argue that the disclosure from pharmacist to provider is either for the individual's treatment, or the pharmacists' payment. 

In the same hypothetical situation, when the same individual goes to Pharmacy B in an attempt to get her illicit prescription, the Pharmacist B looks up the person's eligibility and sees that the individual has been restricted to Pharmacy A.  Pharmacist B now knows that he won't get paid if he fills this prescription, and so he doesn't.   There is a dislcosure here -- the payer disclosed to Pharmacy B the fact that the individual has been restricted to Pharmacy A (and implicitly a drug seeker) -- but this is a disclosure that will likely be deemed to be part of the payer's operations. 

In the situation you describe, Rebekah, it seems that the pharmacy (somehow) got information that the individual is a drug seeker, and is disclosing that fact to providers.  I'd argue here that the disclosure from pharmacist to providers is part of the treatment of the individual.

As you can see, none of these arguments is completely obvious.  So is there a HIPAA problem?  Maybe.

There's another problem, as well.  A drug seeker can easily evade detection by going to different pharmacies, different doctors, and not seeking insurance reimbursement.  But there's a way to fix both the detection proglem and the HIPAA problem -- and I think I read that more than one state is either doing this or planning to do this:  the state can *require* pharmacists to report all prescritpions to a central database, and the state can monitor that database to identify drug seekers. 

A bit Big Brother-ish?  You might think so.  But doing it this way solves not only the detection problem but the HIPAA problem as well -- as long as the state promulgates a regulation *requiring* pharmacists to disclose to a central database, and another *requiring* the state to disclose suspected drug seekers to providers.  As we all know, HIPAA has no effect on state laws or regulations requiring disclosure of PHI. 

************************************************
Deborah L. Drexler, Esq.
HIPAA Program Consultant
Executive Office Health Human Services
One Ashburton Place
Boston MA 02108
617-727-7600
[EMAIL PROTECTED]


-----Original Message-----
From: Mimi Hart [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, January 15, 2003 4:17 PM
To: WEDI SNIP Privacy Workgroup List
Subject: Re: Here is a good Privacy Issue that will cause problems


My gut feeling tells me "huge issue"...I don't know if there is
something in public health law that would state that it is being done in
the best interests of the patient and is therefore okay.....hopefully
one of the lawyers on the group will weigh in. MIMI

Mimi Hart ӿ*
Research Analyst, HIPAA
Iowa Health System
319-369-7767 (phone)
319-369-8365 (fax)
319-490-0637 (pager)
[EMAIL PROTECTED]

>>> "Rebekah Savoie" <[EMAIL PROTECTED]> 01/15/03 02:53PM >>>
Today, a clinic that I work with received a letter from a local
pharmacy
about a patient that was a "Drug Seeker" as we call them.  Over the
course of 30 days he had been to several doctors and several
pharmacies
and received over 350 total pills all a controlled substance.

What happens to the pharmacy's ability to do these types of things
under Privacy? 

Clearly, pharmacist were communicated information back and forth to
each other and to physicians on this person.  They even sent letters
to
all physicians in the area.

Problem? yes or no

Rebekah Savoie, CCS-P
Healthcare Consultant

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