EM TALA & HIPAA

Medical Screening Examination - Provision of an Appropriate MSE:

"...the process required to reach with reasonable clinical confidence, the point at which it can be determined whether a medical emergency does or does not exist..." Must be performed by Qualified Medical Personnel (QMP). Must be performed without unnecessary delay. Must be performed within the capability of the Hospital's Emergency Department, including routinely available ancillary services.

Marijuana Policy

"It is important to note that Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime. The Department of Justice (DOJ) is committed to enforcing the Controlled Substances Act (CSA) consistent with these determinations." "Voters in Alaska, Colorado, Oregon, and Washington state also passed initiatives legalizing the sale and distribution of marijuana for adults 21 and older under state law. District of Columbia voters approved Initiative 71, which permits adults 21 years of age or older to grow and possess (but not sell) limited amounts of marijuana. There are critical differences in marijuana laws from one state, county, or city to another."

Americans with Disabilities Act

"No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms conditions, and privileges of employment."

Public Health Law

"Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (health care, business, the community, the media and academia) to ensure the conditions for people to be healthy, and of the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary and other legally protected interests of individuals." Originated in the control and eradication of infectious diseases like smallpox, polio, yellow fever and malaria. New communicable diseases such as HIV/AIDS, H1N1 and Ebola.

Respondeat Superior

"WITHIN THE SCOPE OF EMPLOYMENT" Intent of the employee; nature, time and place of the employee's conduct; type of work the employee was hired to do; incidental acts the employer should reasonably expect the employee to do; amount of freedom allowed to the employee in performing his or her duties; and amount of time consumed in the personal activity. VS. INDEPENDENT CONTRACTOR

Beware: Subpoena for Records

*Public Hospital Corrects Impermissible Disclosure of PHI in Response to a Subpoena* Issue: Impermissible Uses and Disclosures A public hospital, in response to a subpoena (not accompanied by a court order), impermissibly disclosed the protected health information (PHI) of one of its patients. Contrary to the Privacy Rule protections for information sought for administrative or judicial proceedings, the hospital failed to determine that reasonable efforts had been made to insure that the individual whose PHI was being sought received notice of the request and/or failed to receive satisfactory assurance that the party seeking the information made reasonable efforts to secure a qualified protective order.

"To Stabilize" Definition

...to provide such medical treatment of the [emergency medical] condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility (or, with respect to a pregnant woman in labor, that the woman has delivered the child and placenta)

EMTALA Statute Requires:

1) affirmative obligation on part of the hospital to provide a medical screening examination to determine whether an "emergency medical condition" exists 2) imposes restrictions on transfers of persons who have "emergency medical conditions" or active labor 3) imposes an affirmative duty to institute treatment if an "emergency medical condition" exists 4) Institute treatment without regard to insurance status and getting the insurance status cannot delay care 5) Let the public know that they have a right to a medical screening examination

"Qualified Individual" with a Disability

A "qualified individual" is one who, with or without an accommodation, can perform the essential functions of the job that he or she holds or desires. KEY ISSUES: What are the essential functions of the position? Is an accommodation needed? If so, can one be provided without imposing an undue hardship on the employer?

Examples of Business Associates

A PERSON WHO RECEIVES, CREATES, MAINTAINS OR TRANSMITS PHI ON BEHALF OF A CE FOR HIPAA ACTIVITY (not an employee) Claims administrator Data analysis Utilization review Billing Quality assurance Benefits management Practice management Patient safety activities Lawyer Accounting Accreditation

HIPPA - General Rule

A covered entity and business associate cannot use or disclose PHI except as permitted by JIPPA or as requested by an individual. CE or BA cannot sell PHI.

The Right to Refuse Treatment

A general right to refuse medical treatment. In the absence of emergency, a court may not authorize the state to administer psychotropic drugs to a non-consenting mental patient unless the court determines that the medication is in the best interest of the patient and no less intrusive alternative treatment is available (Meyers v. Alaska Psychiatric Institute and Washington v. Harper).

An Emergency Medical Condition ("EMC") Definition

A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in... - Placing the health of the individual (including an unborn child) in serious jeopardy; - Serious impairment to bodily functions; or - Serious dysfunction of any bodily organ or part With respect to a pregnant woman who is having contractions... - There is inadequate time to effect a safe transfer for delivery, or - Transfer may post a threat to the health or safety of the woman or the unborn child.

Jacobson vs. Massachusetts, USSC (1905)

A vaccine for smallpox was developed during the smallpox epidemic at the beginning of the 20th century and Pastor Jacobson refused the vaccination saying that it was an "invasion of his liberty interest' (14th Amendment to the Constitution). USSC ruled against Jacobson: "the state may be justified in restricting individual liberty...under the pressure of great dangers" to the safety of the "general public." "There are manifold restraints to which each person is necessarily subject for the common good." Massachusetts state punishment of fine or imprisonment on those who refused vaccines was acceptable but that those individuals could not be forcibly vaccinated.

HIPPA Security

ADMINISTRATIVE SAFEGUARDS PHYSICAL SAFEGUARDS - locks, signs, work stations TECHNICAL SAFEGUARDS - passwords, safe transmission, encryption, hacking ORGANIZATIONAL SAFEGUARDS - audits, authentication, working with BAs

Covered Entities

AN EMPLOYER: defined as a business engaged in commerce and having more than 15 employees. EXEMPT from the ADA: - The Federal Government (but not state and local governments) - Indian Tribal owned businesses - Tax-exempt bona fide private membership clubs * Foreign employers operating in the US are not exempt * US employers operating abroad are not exempt

Civil Monetary Penalties

Amounts range based on "we did not know it happened" vs. "willful neglect". Ranging from $100-$50,000 per violation to a max of $1.5 million per year.

Undue Hardship

An action requiring significant difficulty or expense. Factors include: the nature and cost of the accommodation, the overall financial resources of the employer, the size of the employer and the impact on operations.

Dedicated Emergency Department CMS Definition

Any department or facility of the hospital, whether located on or off the main hospital campus, that meets at least one of the following requirements: - Licensed by the state in which it is located under applicable state law as an emergency room or emergency department; - Held out to the public as a place that provides care for emergency medical conditions on an urgent basis without an appointment; or - Provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously-scheduled appointment.

EMTALA

Any patient who "comes to the emergency department" requesting "examination or treatment for a medical condition". To determine if he is suffering from an "emergency medical condition". Hospital must: 1) provide him with treatment until he is stable or 2) transfer him to another hospital in conformance with the statute's directives

EMTALA Basic Requirements:

Appropriate Medical Screening Examination (MSE) Stabilization of the Emergency Medical Condition (EMC) Appropriate Transfer to Another Facility

Call Duties

Assistance in screening patients (upon request of ED physician). Assistance in stabilizing patients (upon request of ED physician for patients with emergency medical conditions). Provision of consults (upon request of ED physician). Acceptance of transfers (although hospital is responsible for officially accepting a transfer).

EMTALA Penalties

Both CMS and the OIG have administrative enforcement powers with regard to EMTALA violations. There is a 2-year statute of limitations for civil enforcement of any violation. Penalties may include: 1. Termination of the hospital or physician's Medicare provider agreement. 2. Hospital fines up to $50,000 per violation ($25,000 for a hospital with fewer than 100 beds). 3. Physician fines $50,000 per violation, including on-call physicians. 4. The hospital may be sued for personal injury in civil court under a "private cause of action". 5. A receiving facility, having suffered financial loss as a result of another hospital's violation of EMTALA, can bring suit to recover damages.

Mental Health Law

CIVIL COMMITMENT Freedom (deprivation of freedom) is an ardently protected right for all including the mentally ill. Those that cannot live safely in the community because they are a danger to themselves or others may be deprived on their freedom.

Hospital Faculty Directory

Can object and not be listed Condition is listed in general terms only Can include religion for identification by clergy

Defining Disability: What are Major Life Activities?

Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working; Functions of major body systems and organs: immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Clinic Sanctions Supervisor for Accessing Employee Medical Record

Covered Entity: Outpatient Facility Issue: Impermissible Use and Disclosure A hospital employee's supervisor accessed, examined, and disclosed an employee's medical record. OCR's investigation confirmed that the use and disclosure of protected health information by the supervisor was not authorized by the employee and was not otherwise permitted by the Privacy Rule. An employee's medical record is protected by the Privacy Rule, even though employment records held by a covered entity in its role as employer are not. Among other corrective actions to resolve the specific issues in the case, a letter of reprimand was placed in the supervisor's personnel file and the supervisor received additional training about the Privacy Rule. Further, the covered entity counseled the supervisor about appropriate use of the medical information of a subordinate.

HIPPA Security - Administrative Safeguards

Designated personnel for HIPAA Train employees Safeguard the information Handle complaints appropriately Handle sanctions Mitigate violations No retaliatory acts Documentation

Where does EMTALA apply?

EMTALA is triggered by a request for treatment: Upon presentation at a hospital's "dedicated emergency department," Upon presentation anywhere on the "hospital property," In a ground or air ambulance that is owned and operated by the hospital at any location, or In a ground or air ambulance not owned by the hospital, but on "hospital property."

How do employers know?

Employees don't have to use the magic words that they are disabled. If an employee references a health condition and it could impact the job performance an accommodation may be needed even if it is not asked for directly. Listen to what the employee is saying! Employee asks. Employer is on notice. Medical provider states an accommodation is needed.

Prohibited Conduct

Employment tests that reflect a disability - like an oral test for someone with a hearing impairment. On a medical exam the employer cannot ask about the disability or nature or severity or the disability. It depends on the stage of the hiring process. If they had one leg you can ask how you can do the essential functions of the job (with or without accommodation) but not the non-essential and not about how they became disabled or whether they have applied for disability benefits in the past or how often they are going to need to go have treatment. After the offer of the job then you can give a medical exam that you give everyone. The test does not have to be related to business necessity but if offer is withdrawn do have to show it would affect job function (and no reasonable accommodation possible). Person with disabilities cannot be limited in their duties or given a separate promotion track or be required to use a particular office, break room or lounge. Cannot sign a contract with a training vendor that is in site that an employee cannot access. Discriminating against an employee who has a relationship with an individual with a disability eg. Refusing to hire because the person may miss work to care for a disabled spouse and firing a person who works with AIDS patients as a volunteer. Using tests or qualifications standards that tend to screen out people with a disability unless it is job related and consistent with business necessity - like walking, lifting, vision, hearing - NOT how fast you can type. Current employees can be tested if job related function - tests for the illegal use of drugs are not medical exams. Retaliation and Coercion: if participating to enforce the ADA. Harassment: harassed because of disability and employer did nothing to stop it.

Use of Routinely Available Services for Definition

Equipment Staff Services Physical Specialists

Call Coverage - The Call Roster

Every hospital must have a call schedule. Individual physician names must appear on the call roster-not the names of physician practices or physician extenders.

What is the Procedure to Create an Accommodation?

Exchange of Ideas - discuss as many different possibilities as you can. Individualized - don't make assumption that an accommodation will work for all individuals with a specific issues. Timely. Remember to respect medical privacy - know just enough to make the accommodation.

Call Failures

Failure of hospital on-call systems is one of the most frequently cited violations of EMTALA. Penalties affect both hospitals and physicians for call failure (i.e., civil monetary penalties, termination from Medicare, civil suits, quality investigations, peer review actions). If patient is transferred because the on-call physician does not appropriately respond, hospital must send name of the physician to the receiving hospital.

Public Health Authority

Federal, state and local government

What is Reasonable Accommodation?

Generally requires employers to make a reasonable accommodation of disability caused limitation if those accommodations: - Enable the employee to successfully perform the essential functions of the job. - Ensure equal opportunity in the application process. - Will enable the employees with disabilities to enjoy benefits and privileges of employment as are enjoyed by employees without disabilities.

Transfers - Receiving

Geographic Transfer Concerns—you cannot refuse because another hospital is closer. On-call physicians must accept appropriate transfers whenever the hospital is required to accept the transfer, regardless of private practice obligations. Transfers should only be refused if the hospital is unable to provide necessary care (Think capability and capacity!).

No Exemptions in CA

Governor Signs SB277 into Law On June 30 2015, Governor Jerry Brown signed SB 277. Effective one year from now, in July 2016, SB 277 will eliminate personal and religious exemptions from immunization requirements for children in child care and public and private schools. The law will also allow personal belief exemptions (PBEs) submitted before January 1, 2016 to remain valid until a pupil reaches. Mississippi and West Virginia also have no religious exemption. More than 20 states also recognize philosophically-based exemptions.

Health Insurance Portability and Accountability Act of 1996

HIPAA - the "P" does not stand for "Privacy" and there are two "A"s Title I Health Insurance Portability. Title II Administrative Simplification - standardize the industry with respect to security and other transactions. Title II also included PRIVACY that ordered the Secretary of HHS to promulgate rules about privacy or else Congress would and Congress did in 2003.

Reasonable Accommodation for Applicants

Have to inform applicant of possible accommodations for application, interview, and testing. It's a tough call because you have to know they have a disability of reasonably believe they do in order to ask.

Ferguson v. City of Charleston

Held: A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure.

Respondeat Superior Examples

Hospitals responsible for doctors. Doctors responsible for their staff. Attendings responsible for medical students. Medical practice responsible for partners/associates.

Transfers - Specialized Capabilities

Hospitals with specialized capabilities or facilities and capacity to treat cannot refuse to accept a proper transfer. Having psychiatric services may be considered specialized capabilities. This is true of psychiatric hospitals without Emergence Departments.

HIPPA - Type of Data

IS THE DATA HEALTH INFORMATION IDENTIFABLE TO AN INDIVIDUAL (IIHI)? If no, then it is "DE-IDENTIFIED" health information (the HIPAA regulation outline how to successfully de-identify data) and HIPAA does not apply. If the data is IIHI then unless it being used for some specific purposes it is considered PHI (PERSONAL HEALTH INFORMATION).

Procedure for Civil Commitment

If a person requires care but be unwilling or incapable of accepting voluntary admission: 1) CSB emergency services workers become involved with someone suffering a mental health crisis should that person require an Emergency Custody Order (ECO) from a magistrate so the individual can be held for an initial mental health evaluation 2) If this evaluation concludes that inpatient treatment is needed, a person can admit himself voluntarily 3) For individuals unwilling to admit themselves or incapable of doing so, a magistrate must find probable cause of harm to the person or others for the issuance of a temporary detention order (TDO) to hold the individual in a hospital for up to 48 hours. 4) The civil commitment hearing is held within 48 hours of the TDO's issuance. The hearing can result in a dismissal, involuntary commitment for a maximum of 30 days, mandatory outpatient treatment, judicial voluntary admission, which requires the individual to agree to care for a minimum of 72 hours and to give 48 hours notice prior to leaving.

Call Coverage - Scope of Services

If the hospital offers a service to the public, the service should be covered on call. For, example, if the hospital advertises a cardiology program, it would be expected that the hospital has 24/7 call coverage for cardiac patients. Hospitals are given discretion to provide sufficient call services to meet community need (but think "expectation"). What is your call coverage for psychiatry? Psychiatry should be treated like any other service line. More leeway for rural hospitals where there are often single specialists. However, CMS has declared that the "Rule of Three" does not necessarily apply. Where hospitals cannot provide 24/7 coverage for certain specialty services, appropriate transfer agreements must be in place with hospitals that can provide such services.

Defining Disability: Substantial Limitation

If there is an impact of the individual's major life activity then it is safe to assume that it is covered because the definition here is very broad. "The primary object of attention in cases brought under the ADA should be whether covered entities have complied and whether an impairment is a disability and should not demand extensive analysis."

HITECH

In the American Recovery and Reinvestment Act 2009. Also known as the "Stimulus Package". Title XIII (Health Information Technology and Economic Clinical Health Act). New definitions and entities. Definition of so called "business associates". Outlined "breach notification" criteria. Otherwise amended HIPAA. HIPAA omnibus rules of 2013 again amended and changed HIPAA.

A local homeless women with TB fails to adhere to outpatient direct-observation therapy (DOT).

Is placed in a county jail because she poses a threat to the public health.

HIPPA - Type of Entity

Is the data managed by a "covered entity" (health care plan, health care provider)? Is the entity a "business associate" of the covered entity?

Pharmacy Chain Enters into Business Associate Agreement with Law Firm

Issue: Impermissible Uses and Disclosures; Business Associates A complaint alleged that a law firm working on behalf of a pharmacy chain in an administrative proceeding impermissibly disclosed the PHI of a customer of the pharmacy chain. OCR investigated the allegation and found no evidence that the law firm had impermissibly disclosed the customer's PHI. However, the investigation revealed that the pharmacy chain and the law firm had not entered into a Business Associate Agreement, as required by the Privacy Rule to ensure that PHI is appropriately safeguarded. Without a properly executed agreement, a covered entity may not disclose PHI to its law firm. To resolve the matter, OCR required the pharmacy chain and the law firm to enter into a business associate agreement.

Private Practice Implements Safeguards for Waiting Rooms

Issue: Safeguards; Impermissible Uses and Disclosures A staff member of a medical practice discussed HIV testing procedures with a patient in the waiting room, thereby disclosing PHI to several other individuals. Also, computer screens displaying patient information were easily visible to patients. Among other corrective actions to resolve the specific issues in the case, OCR required the provider to develop and implement policies and procedures regarding appropriate administrative and physical safeguards related to the communication of PHI. The practice trained all staff on the newly developed policies and procedures. In addition, OCR required the practice to reposition its computer monitors to prevent patients from viewing information on the screens, and the practice installed computer monitor privacy screens to prevent impermissible disclosures.

What is an Accommodation?

It is any modification or adjustment to a job, an employment practice, or work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity. This could include: - Shifting of functions - Modification of workplace rules - Physical changes to the facility - Granting leave - Modifying duties - Use of technology to address barriers

Mandatory Reporting Obligations

Must report receipt of inappropriate transfers to CMS. 72-Hour reporting deadline.

Hospitals fined $4.8M for HIPAA violation

New York-Presbyterian Hospital and Columbia University Medical Center together on May 7 have agreed to hand over a whopping $4.8 million to settle alleged HIPAA violations after the electronic protected health information of 6,800 patients wound up on Google back in 2010.

A nurse returning to the USA after treating Ebola patients in Africa is found to have a fever via screening at the Newark Airport. She is quarantined for 60 hours in a tent near a hospital in NJ. She is subsequently allowed to leave NJ and go home to Maine. The governor of Maine decides to require home quarantine for 21 days because of "public health necessity."

No "clear and convincing evidence" that she posed a public health risk and she was freed. She did not develop Ebola.

Virginia Requirements and Exemptions

No certificate of immunization is required for admission if student or his parent submits an affidavit to the admitting official stating that the administration of immunizing agents conflicts with the student's religious tenets or practices. Additionally, because the human papillomavirus is not communicable in a school setting, a parent or guardian, at the parent's or guardian's sole discretion, may elect for the parent's or guardian's child not to receive the human papillomavirus vaccine, after having reviewed materials describing the link between the human papillomavirus and cervical cancer approved for such use by the Board. Medical exemptions are also allowed.

Individual HIPPA Rights

Notice of privacy protection. Right to request more privacy protection. Access to your medical record. Right to amend your medical record (to make it factually correct). Right of Accounting (how is the record being used). Right to designate others access to your information.

How does EMTALA apply to Hospitals?

Originally known as the "patient anti-dumping law," EMTALA requires Medicare participating hospitals to provide medical screening and stabilizing treatment of emergency medical conditions upon request. Applies to all Hospitals that participate in Medicare. Ensures access to emergency medical care regardless of the ability of the patient to pay for such care. Applies to all patients, not just Medicare beneficiaries.

EMTALA Does Not Include

Other areas or structures that are not part of the hospital such as physician offices, rural health centers, skilled nursing facilities or other entities that participate separately under Medicare. Restaurants, shops, or other nonmedical facilities.

Defining Disability: What is a physical impairment?

PHYSICAL IMPAIRMENT: broken leg, hearing loss, migraine headaches, traumatic brain injury MENTAL IMPAIRMENTS: depression, anxiety, bipolar disease or PTSD

Virginia criminalizes the donation or sale of blood, bodily fluids, tissue, and organs by PLHIV.

PLHIV can be subjected to isolation. The State Health Commissioner retains authority to mandate quarantine, isolation or treatment if such measures are determined necessary to "control the spread of any disease of public health importance." The Commissioner also has specifically enumerated authority to impose isolation for a "communicable disease of public health significance" which is explicitly defined as including HIV.

Virginia criminalizes a broad range of sexual activities where a person living with HIV (PLHIV) acts with the "intent" to transmit disease.

PLHIV must disclose their HIV status to a partner before engaging in certain sexual activities. In December 2015, a 28-year old HIV man living with HIV was convicted of infected sexual battery for having sex with a woman without disclosing his HIV status. He was sentenced to one year in prison. In July 2012, a 56-year-old PLHIV was charged with infected sexual battery for failing to disclose his HIV status prior engaging in unprotected sexual intercourse with his then- fiancée. In October 2010, an PLHIV was charged with felony infected sexual battery for allegedly trying to infect two women with HIV.

Business Associate

PROVIDER TO PROVIDER IS NOT A BA RELATIONSHIP. BA has the same obligations to protect the PHI. There needs to be a contractual relationship regarding PHI between the BA and the CE - satisfactory assurances that the BA is protecting the PHI. Both can be sanctioned.

No authorization from individual required for...

Payment Treatment Health care operations Public health emergencies Health care oversight (FDA adverse events) Law enforcement Judicial proceedings Worker's Compensation Disclosure

Local Government

Powers come directly from the state and are limited in jurisdiction by state and federal law. DILLON RULE - local governments may exercise only the powers expressly granted to them. Virginia has a very strong Dillon rule that limits the power of localities.

Two Aspects of HIPPA Analysis

Privacy Regulations Security Regulations

Authorization from individual required for...

Psychotherapy notes Marketing purposes Sale

Medical Screening Examinations - Who is allowed to perform MSEs?

Qualified Medical Personnel - Persons defined in the Hospital Bylaws or Medical Staff Rules and Regulations. - Cannot be informally delegated by the ED physician or the ED medical director.

$750,000 settlement highlights the need for HIPAA business associate agreements

Raleigh Orthopaedic Clinic, P.A. of North Carolina has agreed to pay $750,000 to settle charges that it potentially violated the HIPAA by handing over protected health information (PHI) for approximately 17,300 patients to a potential business partner without first executing a business associate agreement. HIPAA covered entities cannot disclose PHI to unauthorized persons, and the lack of a business associate agreement left this sensitive health information without safeguards and vulnerable to misuse or improper disclosure.

NUDGE THEORY OF PUBLIC HEALTH

Rather than requiring people to do things we will move people to the behaviors that we deem are the best for them by moving them in the direction that will make their lives better without them knowing that we are curbing their individual choice. Instead of requiring that people purchase broccoli because it is good for your health we will require that healthier foods are placed at eye level in stores to encourage their consumption.

Intoxicated Patients

Remember that an intoxicated patient may not be considered stable. You may not be able to properly screen a patient until the patient is no longer intoxicated. Patients who are intoxicated may have impaired capacity and can be a challenge with respect to AMA discharge or LWBS.

Civil Commitment in Virginia

Requires a judicial determination by clear and convincing evidence that a person has a substantial likelihood of causing serious physical harm to himself or others or of suffering serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs. If the person is determined to be incapable of volunteering or unwilling to volunteer and there is not an appropriate less restrictive alternative, then the person may be involuntarily committed.

Stabilization of Psychiatric Patients

Requires removing the threat of harm to self or others. May require admission or some reasonable period of observation/detention. Note that boarding of psychiatric patients in EDs has become a significant problem. Until a patient has been stabilized, admitted or transferred, EMTALA applies. Thus, an admission order with admission pending for a period of time may be problematic.

Call Coverage - Response Time

Response to request from ED physician to a specialist on the call roster must be timely. The hospital must establish the response time in policy in terms of minutes. CMS has not established a response time, but it must be reasonable under the circumstances. May be influenced by state regulations.

Authorities Criminally Charge Tuberculosis Patient for Not Taking Meds

SAN FRANCISCO — It's a difficult legal situation. A person has an infectious disease. Taking medication is not only beneficial to them, but it can help stop the spread of said disease. When it's found the patient is not taking these medications, the authorities arrest them and institute a measure that will ensure the patient is at a certain place where administration of the medication can be monitored.

A man with newly diagnosed HIV/AIDS is asked to identify sexual partners so that the contacts may be notified and counseled as needed.

Should the index case be identified? Does this violate HIPAA if the person especially if the person is easily identifiable (in a monogamous relationship)? If the contact is a minor is the index case being asked to incriminate himself?

Appropriate Medical Transfers - Certification

Signed by physician (or QMP, in consultation with physician) certifying the need/medical benefit of transfer. If signed by non-physician QMP, must be countersigned by consulted physician. Summarizes risks and benefits of transfer Date and time of transfer should closely match date and time of certification. Note: Certifications are not used for transfers of patients at their request or for stabilized patients.

Expansion of the Scope and Range

Sugar sweetened beverage taxes on soda and juices to reduce obesity. Bicycle lane proposals to encourage exercise and reduced obesity. Fluoridating water to reduce tooth decay. Raising taxes on alcohol to reduce consumption Mandating child safety seats to reduce injuries to children. Loosening the requirements on sobriety checkpoints to reduce the harm of driving driving under the influence of alcohol. Seatbelts to reduce MVA fatalities. Motorcycle helmets to reduce brain injury. Requiring that the private placement of commercial signage conform to certain size and placement characteristics to reduce public health risks - smaller billboards for fast food restaurants and liquor stores. Limiting the commercial visibility of tobacco shops, liquor stores resulting in decreased access to these businesses.

Personal Representatives

The CE must treat the personal representatives of an individual like the individual. This includes parents and guardians, administrators and executors of estates. Individual can designate others access to record information.

Federal Government

The Supremacy Clause of the Constitution provides that federal law PREEMPTS state and local law. Congressional legislation on vehicle safety, food policy, security, environmental protection, transportation and health services sets a national standard to achieve public health objectives and conflicting state laws are preempted.

The Right to Treatment

The USSC addressed whether a profoundly mentally disabled individual had a broad right to treatment in a state institution in Youngberg v. Romeo. Requires "the state to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Has had varying impact on court decisions.

EMTALA Includes

The entire main hospital "campus" including parking lots, sidewalks, and hospital-owned ambulances. Any facility located off the main hospital campus that is a provider-based department of the hospital that qualifies as a dedicated emergency department (such as an FSED).

Authority of ED Physician

The law undeniably provides the highest authority under EMTALA to the ED physician. If an on-call physician refuses the request of an ED physician to provide a consultation, on site screening or stabilizing treatment of a patient with an emergency medical condition, EMTALA is violated. If the on-call physician disagrees with the ED physician, the on-call physician should respond to call timely & address through medical staff channels.

Emergency Medical Condition Presentation

The patient must be: - Stabilized and/or - Appropriately transferred Once the patient is "stabilized" EMTALA no longer applies. If the patient doesn't have an EMC EMTALA does not apply.

A local policy requiring the non-consensual testing of pregnant women or new mothers for cocaine during the so called "crack baby" epidemic.

The public health interest was to identify women who are exposing the fetus to cocaine. The test results were also reported to local law enforcement for potential prosecution of the mothers.

Definition of Disability

The term "disability" means with respect to an individual: A physical or mental impairment that substantially limits one or more major life activities of such an individual; A record of such an impairment; or Being regarded as having such an impairment.

Appropriate Medical Transfers Of Non-Stabilized Patients - Four Criteria

The transferring hospital must provide all medical treatment within its capacity that minimizes the risks to the individual patient's health and, in the case of a woman in labor, to the health of the unborn child. The receiving facility must have both the available space and the qualified personnel necessary for the treatment of the individual and agree to accept the transfer of the individual and to provide appropriate medical treatment. The transferring facility must send the receiving facility copies of all medical records available at the time of transfer (including test results and consent forms) and the name and address of any on-call physicians who refused or failed to appear in a reasonable time to provide necessary stabilizing treatment. The transfer must be effected through qualified personnel and transportation equipment, including necessary and medically appropriate life support measures.

State Government

Traditionally the site of public health power via the so called POLICE POWERS - the inherent authority of the state to enact laws and regulations to protect and preserve and promote the health, safety, morals and general welfare of the people. POLICE POWERS allow for testing, screening, vaccinating, treating, quarantining, and isolating individuals. PARENS PATRIAE POWERS allow for the state to serve as a guardian for those that lack capacity such as minors, the mentally disabled, the elderly or prisoners.

Jacobson vs. Massachusetts (1905) Exception

USSC acknowledged that for certain individuals, the requirement of vaccination would be cruel and inhuman and therefore an overreach of government power. This created a medical exemption for adults under the Massachusetts health law but Harlan denied that Jacobson deserved the exemption.

Zucht v. King USSC (1922)

Upheld the validity of mandatory vaccines for schoolchildren.

Employment Law

VICARIOUS LIABILITY: Making someone else responsible for the negligence of another RESPONDEAT SUPERIOR: is the doctrine that states that an employer is responsible for an employee. It states that a master is liable for torts of its servants committed in the course of their service.

HIPPA Breach Notification

Was the PHI security or privacy compromised? Nature and extent of the PHI involved. Identity and extent of PHI involved. Actual acquisition or view. Risk mitigation. Notify within 60 days. Report to government/media if over 500 individuals.

"Dangerousness"

What does it mean to be dangerous to other or yourself? Testimony of lay witnesses and experts. Risk factor approach and clinical judgment. The USSC has ruled that expert testimony on dangerousness is admissible.

Two Step HIPPA Privacy Analysis

What type of health data is it? What type of entity is it?

Medical Screening Examinations - When is a Medical Screening considered "appropriate?"

Will vary depending on presenting patient's symptoms. Must be reasonably calculated to determine whether an emergency medical condition exists. Must be applied in a nondiscriminatory manner.