Legal and Ethical Aspects of Health Information Management Chapter 9 HIM 250 (part of exam 3)

Legal sources for foundation for privacy rights

(1) Constitutional provisions (2) Statutory provisions (3) Common law provisions

What are Examples of lawsuits based on common law?

1. Invasion of privacy claims 2. Defamation 3. Breach of contract

What is the scope of the doctrine of Informed theory involve?

1. who may consent to treatment? 2. how much information must the health-care provider disclose? 3. what situations require informed consent?

Professional disclosure standard

A standard used in the negligence context to determine liability. It is measured according to the level of information a reasonable health-care provider would disclose under the ....

Reasonable patient standard

A standard used in the negligence context to determine liability. It is measured according to the level of information a reasonable health-care provider would disclose under the ....

What generally defines an emergency situation in the context of informed consent?

An emergency situation is present if the patient is unable to give consent, another person authorized to give consent on the patient's behalf is unavailable, and/or a delay in treatment would likely result in death or serious bodily harm to the patient.

What happens if patient needs care but cannot consent due to an emergency condition?

Another is not available to give consent Delay would result in death or serious harm

What are Open record statutes?

Apply to records held by state agencies Correspond with principles of FOIA Presumption of disclosure absent a statutory exemption

Informed consent was based on this theory

Based on the theory of battery

Compare and contrast confidentiality and privacy.

Both deal with patient-specific health information. Privacy refers to the right to control information or the right to be left alone. In the health-care context, it refers to the right of the patient to control information. Privacy is an inward-looking activity engaged in by the patient. Confidentiality refers to the obligation of the health-care provider to protect patient-specific health information. The difference rests with who has what right or obligation. Confidentiality is an outward-looking activity engaged in by the health-care provider.

What is common law?

Common law is judge made law

Protected Health Information (PHI)

Contains identifiers by which the individual may be recognized, including Name, address, dates (of birth, death, admission) Phone numbers or e-mail addresses Social Security, health record, or insurance number

What are Privacy statutes?

Correspond with federal Privacy Act Presume certain information held by state is confidential Patient authorization needed to disclose

When is informed consent required?

Diagnostic or therapeutic procedure Risk significant and/or not readily apparent Surgery, radiologic therapies Procedure that may change body structure Strict requirements for research and experiments

Expanding responsibilities of HIM

EHR poses challenges to maintaining confidentiality and privacy Expansion of electronic exchange of PHI Computer data security programs to address concerns Scope of influence and responsibilities will continue to grow

Reasonable patient standard What material is necessary for an average patient to decide to consent or forgo treatment?

Expert testimony is not neededWhen

Professional disclosure standard What would the reasonable health care provider under the same circumstances disclose?

Expert testimony needed to establish

You are the director of health information services at a medium-size health care facility providing general, emergency and pediatric care. Because of downsizing and consolidation of managerial functions, you are also responsible for staff education in your facility. Discuss how you would structure and present an in-service program to staff members of various departments that address confidentiality policies and procedures of your facility, and the legal bases underlying these policies and procedures.

First, facility policies should give direction to staff on releasing non-confidential and confidential information. Employees/staff should receive special training in dealing with requests and deciding what is acceptable to release and what is not. As a director of health information management, I will need to conduct a training to facilitate and train employees on how to properly address the release of confidential information. I will need to review the goals and policies of the facility, examine the jobs performed and assess my employees' skills. This way I can identify on the weakness and strength of each employee and what needs correction or improvement. Communication is also the key to being a good director and ensuring everyone is in the same page.

Notice of privacy practices

HIPAA requires provider to inform patients Describes duties concerning PHI Disclosure, safeguards, accounting, complaints Notice is to be posted and acknowledged by patient

De-identified health information

Health information that is stripped of all identifiers

Describe the difficulties faced by an HIV/ AIDS patient whose infected status is disclosed without the patient's consent.

Inappropriate disclosure of HIV/AIDS status may result in adverse effects to the individual, including negative judgments about the individual's character, friends, and family.

The DHHS issued the Nationwide Privacy and Security Framework for Electronic Exchange of Individually Identifiable Health Information

Individual access and individual choice Correction Openness and transparency Collection, use, and disclosure limitations Data quality and integrity principles Safeguards and accountability

Whalen vs. Roe

Individual interest in avoiding disclosure Individual interest in independent decision making Is this individual interest outweighed by the public's need for information?

Privacy statutes

Laws that generally correspond with the principles found in the federal Privacy act: a presumption of confidentiality that may be rebutted with evidence of patient authorization....

Freedom of Information Act (FOIA)

Mandates access to records and disclosure upon request

Cruzan vs. Missouri Dept of Health (1990)

Nancy Cruzan in vegetative state due to car accident Family wanted to withdraw life support; hospital refused Nancy left no written instructions prior to accident State required clear and convincing evidence of Nancy's wishes before allowing withdrawal U.S. Supreme Court held that Missouri's requirement did not violate the constitution

Cruzan case raised concerns about end of life that led to passage of

Patient Self-Determination Act (PSDA) Goal: patient's right to self-determination should be communicated and protected

Who may consent?

Patient who is a competent adult Substituted consent for incompetent patient Minor Parent or legal guardian provides substituted consent Exceptions and special conditions to which minor may provide treatment consent include Pregnancy -Sexually transmitted diseases -Substance abuse and mental -health care

Privacy Act of 1974

Presumes certain information held by government is confidential Individual consent needed for disclosure

Difference between privacy and confidentiality

Privacy Right belonging to patient Looking inward: patient protecting his or her information Confidentiality Duty belonging to health care provider Looking outward: provider does not disseminate information about another (the patient)

Ethical guidelines

Standards of conduct issued by professional organizations to guide their members' future course of action. These standards are sometimes used to establish the standard of care...

Open record statutes

Statutory provisions that address confidentiality requirements using a presumption of disclosure of information upon request, absent statutory exemption.

In what ways can the scope of the informed consent doctrine be measured?

The informed consent doctrine can be measured by who can consent to treatment, how much information the health-care provider must disclose to the patient, and what situations require informed consent.

Emancipation

The legal ability of a minor to act an an adult when he or she has moved away from home and receives no support from his or her parents

Substituted consent

The legal doctrine that allows an authorized person to consent to or forgo treatment on the patient's behalf when the patient is not legally competent to provide consent

Informed consent

The legal doctrine that requires the health-care provider to disclose information to the patient about treatment options and risks so that the patient may knowledgeably consent to ...

Implied consent

The patient's consent to receive diagnostic or therapeutic treatment or procedures without expressing verbal or written action by the patient; often existing in situations in which a patient...

Implied or tacit consent

The patient's consent to receive diagnostic or therapeutic treatment or procedures without expressing verbal or written action by the patient; often existing in situations in which a patient....

What perspectives are used to measure the professional disclosure standard and the reasonable patient standard?

The perspective of the patient applies to the reasonable patient standard whereas the perspective of the professional applies to the professional disclosure standard.

When does the physician-patient privilege apply, and what is its use?

The privilege applies to the introduction of evidence at trial and is used to prevent the forced disclosure or testimony about information obtained by the health-care provider during the course of treatment.

Express consent

The verbal or written consent of a patient to receive diagnostic or therapeutic treatment or procedures

What are privacy statues and which federal law do they most closely follow?

They are statutes at the state level that apply to government record-keeping activity and apply a presumption of confidentiality. These statutes correspond with the Privacy Act of 1974 on the federal level.

What are open record statues and which federal law do they most closely follow?

They are statutes at the state level that apply to records held by a state agency and apply a presumption of disclosure. These statutes correspond with the Freedom of Information Act (FOIA) on the federal level.

When is Implied consent required?

Voluntary consent by submitting to procedure Risk is slight Taking temperature or pulse, blood draw

Durable power of attorney

a document that allows a competent patient to name someone else to make health care decisions in the event the patient becomes incapacitated or unable to make personal decisions.

Advance directives:

are defined as written instructions recognized under state law, such as living wills or durable powers of attorney for health care, that relate to the kind of health care the patient wishes to have or not have when incapacitated.

If emergency condition exists and patient cannot give consent, provider may not act to save life or limb without informed consent (true or false)

false they must act to save life or limb without informed consent

Professional disclosure standard

measures what a reasonable health care provider under the same or similar circumstances would disclose.

Privacy is:

the right to be left alone the right to control personal information

HIPPA privacy rule defines confidential health information as PHI (true or false)

true

Without authorization, information must be de-identified prior to release or disclosure true or false)

true