Bruce & John,
A pharmacist may consult with another
pharmacist (or other clinician) regarding the continuing treatment of an
individual who presents a prescription.� This would be no different than a
physician consulting with other clinicians regarding the most appropriate
treatment for an individual.� In the case at hand, the pharmacist may suspect
that an individual is an “addict”, a diagnosable condition, and the
pharmacist consults with other clinicians in the neighbor to provide a course
of treatment, for example, holding a medication until a more suitable
intervention may be applied.� HIPAA would certainly NOT preclude this approach.
I hope that this helps.
Your questions are always welcome.
Matt
Matthew
Rosenblum
Chief Operations Officer
Privacy, Quality Management &
Regulatory Affairs
http://www.CPIdirections.com
CPI Directions, Inc.
10 West 15th Street, Suite 1922
New York, NY 10011
(212) 675-6367
[EMAIL PROTECTED]
CONFIDENTIALITY
NOTICE: This E-Mail is intended only for the use of the individual or entity to
which it is addressed and may contain information that is privileged,
confidential and exempt from disclosure under applicable law. If you have
received this communication in error, please do not distribute it.� Please
notify the sender by E-Mail at the address shown and delete the original
message. Thank you.
AVISO DEL
CONFIDENCIALIDAD: Este email es solamente para el uso del individuo o la entidad a la cual se dirige y puede contener
informaci�n privilegiada, confidencial y exenta de acceso bajo la ley
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distribuya.� Favor notificar al remitente del E-Mail a la direcci�n mostrada y
elimine el mensaje original. Gracias.
-----Original Message-----
From: Bruce Bradigan
[mailto:[EMAIL PROTECTED]]
Sent: Friday, January
17, 2003 12:50 PM
To: WEDI SNIP Privacy Workgroup
List
Subject: RE: Here is a good
Privacy Issue that will cause problems
As usual, John presents a clear and cogent analysis of what HIPAA
does and does not allow, and he asks valid questions about what
alternatives there are. I'm not a pharmacist, I'm not a lawyer, and I'm
not a police officer, but I'd like to suggest another way of looking at this.
Is the fact (allegation, assertion, etc.) that an individual is
apparently trying to commit a crime (use drugs unlawfully, perhaps stealing a
prescription pad, perhaps forging signatures, perhaps only attempting to obtain
prescription drugs fraudulently) protected health information? If so,
then perhaps we should look to add this behavior as a specific exclusion.
Otherwise, I would suggest that the pharmacist report the alleged violation of
the law to the police, just as he might report someone breaking into a car
outside his pharmacy window.
I also don't think the pharmacist following this procedure would
have any risk exposure related to improper disclosure of PHI, as the police
would certainly treat this as confidential information not subject to
disclosure to the "drug seeker."
In my opinion, it is not necessary to invoke HIPAA here.
(one of those) Healthcare Consultant
-----Original
Message-----
From: Christiansen, John (SEA)
[mailto:[EMAIL PROTECTED]]
Sent: Friday, January
17, 2003 11:58 AM
To: WEDI SNIP Privacy Workgroup
List
Subject: RE: Here is a good
Privacy Issue that will cause problems
HIPAA is not intended to
*preclude* use of PHI for treatment. Consultation with other providers for
treatment purposes is specifically permitted, under the broadest terms of any
of the HIPAA use/disclosure provisions.
But the definition of CE
does not include governmental *law enforcement* agencies - though it does include
governmental *providers and plans* - and consultation with *law enforcement
officials* is not *treatment.* (Unless you want to argue that becoming the
subject of a criminal investigation and potentially criminal prosecution
is "treatment," which would be an interesting semantic stretch and
more to the point an interpretation inconsistent with the rules' own
distinctions between the two types of PHI use.) Since a disclosure to law
enforcement it is not for *treatment* other rules apply, which should not be
difficult to comply with, though the failure to comply could expose the CE to
penalties.
Likewise, the disclosure
of PHI to another pharmacist to advise him or her of possible drug-seeking
behavior is not for the purpose of *treatment* unless both pharmacists have a
professional relationship to the possible drug-seeker; the goal then would
indeed be the provision of clinically sound treatment services. That purpose is
*not* present when a pharmacist sends that kind of information to another
pharmacist who doesn't have a relationship to the individual in question
- the latter is not engaged in "providing, coordinating or managing
health care or related services" to the individual (the definition of
"treatment"), so the former *cannot* be disclosing the PHI for that
purpose.
The question then is, if
the disclosure to the second pharmacist is not for purposes of treatment,
what *is* the purpose of the disclosure? Once you have articulated that purpose
accurately, you look at the rules to see if it is permitted, and if so under
what conditions. If it is permitted, you disclose under the conditions the rule
states (if any). If it is not permitted, you don't make the disclosure.
I guess at this point I'm
not sure what the resistance or disagreement is about. I think the prudent
approach is to read the rules and work within them, and I think they can be
worked with to legitimately handle the kind of situation described in Rebekah's
original scenario (which is what I am still responding to). There appears to be
a disagreement with this position and I'd like those who disagree to clarify
what their own position in fact is.
Is the disagreement based
on the belief that this approach encroaches too much on traditional
professional discretion of pharmacists to disclose patient information
according to their own judgment, not according to bureaucratic rules? If
so that is a legitimate position, one that has been articulated by a number of
professionals in a number of settings, and one I sympathize with to an extent.
But it is also a position that in the final analysis is about HIPAA
resistance, not HIPAA compliance.
If the requirement to
comply with bureaucratic rules improperly infringes on professional
discretion, from the professional's point of view the solution is to abolish
the rules (i.e., HIPAA), or to ignore them and be ready to take the
consequences as a matter of taking the moral high ground against an intrusive
government. But if you accept that the rules are legitimate, or at least that
it is too risky to violate them, the solution is to read them and comply with
them, and to the extent they do cause problems try to get HHS to reform them.
If this is not an
accurate description of the basis for disagreement with the "read the
rules" approach, it would be helpful to know what the basis for the
disagreement in fact *is.* If we are going to have divergent standards for
approaching compliance we better get them on the table so we know what we are
talking about.
-----Original
Message-----
From: Matthew Rosenblum
[mailto:[EMAIL PROTECTED]]
Sent: Thursday, January 16, 2003
4:57 PM
To: WEDI SNIP Privacy Workgroup
List
Subject: RE: Here is a good
Privacy Issue that will cause problems
John,
Under HIPAA, a
pharmacist's job is to provide direct treatment services and to use and
disclose related PHI in accordance with the privacy, security and TCS
rules. So if a pharmacist needs to consult with other CE's in the
neighbor (or to contact government offficials) to provide a clinically sound
treatment service, how would HIPAA preclude those activities?
I hope that this helps.
Your questions are always
welcome.
Matt
Matthew Rosenblum
Chief Operations Officer
Privacy, Quality
Management & Regulatory Affairs
CPI Directions, Inc.
10 West 15th Street,
Suite 1922
New York, NY 10011
(212) 675-6367
[EMAIL PROTECTED]
CONFIDENTIALITY NOTICE: This E-Mail is intended only for the
use of the individual or entity to which it is addressed and may contain
information that is privileged, confidential and exempt from disclosure under
applicable law. If you have received this communication in error, please do not
distribute it. Please notify the sender by E-Mail at the address shown
and delete the original message. Thank you.
AVISO DEL CONFIDENCIALIDAD: Este email es solamente para el
uso del individuo o la entidad a la cual se dirige y puede contener informaci�n
privilegiada, confidencial y exenta de acceso bajo la ley aplicable. Si usted
ha recibido esta comunicaci�n por error, por favor no lo distribuya.
Favor notificar al remitente del E-Mail a la direcci�n mostrada y elimine el
mensaje original. Gracias.
-----Original Message-----
From: Christiansen, John (SEA)
[mailto:[EMAIL PROTECTED]]
Sent: Thursday, January 16, 2003
7:09 PM
To: WEDI SNIP Privacy Workgroup
List
Subject: RE: Here is a good
Privacy Issue that will cause problems
Hate to
say it, but I disagree: Under HIPAA a pharmacist's job is to establish and
comply with certain policies for privacy, security and electronic claims
processing. It is a pharmacist's *professional* obligation to avoid (or
mitigate) harm to individuals, and HIPAA is not intended to *interfere* with
this. But HIPAA says nothing about mitigation of harm or professional
standards.
-----Original
Message-----
From: Matthew Rosenblum
[mailto:[EMAIL PROTECTED]]
Sent: Thursday, January 16, 2003
3:57 PM
To: WEDI SNIP Privacy Workgroup
List
Subject: RE: Here is a good
Privacy Issue that will cause problems
Tim,
I must
respectfully disagree with your fundamental analysis of this scenario.
Pharmacists (chemists) have, for more than 2000 years, been part of a triad
(including physicians and nurses) engaged in an on-going clinical (NOT
business) practice of ensuring that the correct medications and drugs are
received by the correct patients. Whenever we remove one of those
clinical disciplines from the decision-making process, medication errors and
mistakes are likely to increase.
It is
NOT the intention of HIPAA to deter a good clinical practice.
Unfortunately, when unscrupulous people get hold of blank-prescriptions,
innocent people may get hurt. Under HIPAA, our responsibility then
becomes mitigation of the harm.
I hope
that this helps.
Your
questions are always welcome.
Matt
Matthew Rosenblum
Chief
Operations Officer
Privacy,
Quality Management & Regulatory Affairs
http://www.CPIdirections.com
CPI Directions, Inc.
10 West
15th Street, Suite 1922
New
York, NY 10011
(212)
675-6367
[EMAIL PROTECTED]
CONFIDENTIALITY NOTICE: This E-Mail is intended only for the
use of the individual or entity to which it is addressed and may contain
information that is privileged, confidential and exempt from disclosure under
applicable law. If you have received this communication in error, please do not
distribute it. Please notify the sender by E-Mail at the address shown
and delete the original message. Thank you.
AVISO DEL CONFIDENCIALIDAD: Este email es solamente para el
uso del individuo o la entidad a la cual se dirige y puede contener informaci�n
privilegiada, confidencial y exenta de acceso bajo la ley aplicable. Si usted
ha recibido esta comunicaci�n por error, por favor no lo distribuya.
Favor notificar al remitente del E-Mail a la direcci�n mostrada y elimine el
mensaje original. Gracias.
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]
Sent: Thursday, January 16, 2003
6:00 PM
To: WEDI SNIP Privacy Workgroup
List
Subject: RE: Here is a good
Privacy Issue that will cause problems
In my
personal opinion, this practice - violating patient privacy, in the name of
detecting abuse by private businesses - which is (it appears to me) unsupported
by statute (unless mandated by DEA regulation) - is contrary to both many state
laws and HIPAA. I agree the practice serves a valuable community need, as
well as the needs of the abusing patient (intervention). However, as it
(as I see it) is NOT a law enforcement reporting issue, but rather a "home
grown" solution, that business simply do out of common sense, the practice
will either have to be suspended, with suspects reported to law enforcement -
cutting out the Sherlock Holms detection engaged in by pharmacists in
the process - or get a state statute passed to support and require the
activity. After all, it appears to me that what is really occurring here
is abuse of privacy, and potentially serious defamation, and that a case might
be made for damages if a person is placed on these distribution lists
wrongly. However, as I am not an attorney I can not pass on a formal
opinion. Just keep in mind that a person DOES NOT LOOSE ANY RIGHTS just
because a pharmacist suspects abuse!!! It is up to statutory law
enforcement of investigate, and a court to determine if a crime has been
committed, NOT A CE, regardless of their practices. I am frankly amazed
that we have not heard more litigation on this issue.
Regards,
Tim McGuinness, Ph.D.
Consulting Specialist in Regulatory Privacy, Security, and Application
Compliance
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