Health Insurance Portability and Accountability Act of 1996
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| Other short titles |
Kassebaum-Kennedy Act, Kennedy-Kassebaum Act |
| Long title |
An Act To amend the Internal Revenue Code of 1986 to improve portability and continuity of health insurance coverage in the group and individual markets, to combat waste, fraud, and abuse in health insurance and health care delivery, to promote the use of medical savings accounts, to improve access to long-term care services and coverage, to simplify the administration of health insurance, and for other purposes. |
| Acronyms (colloquial) |
HIPAA (pronounced HIP-pah) |
| Enacted by |
the 104th United States Congress |
| Citations |
| Public Law |
Pub.L. 104–191 |
| Statutes at Large |
110 Stat. 1936 |
| Legislative history |
- Introduced in the House as H.R. 3103 by Bill Archer (R-TX) on March 18, 1996
- Committee consideration by House Ways and Means
- Passed the House on March 28, 1996 (267–151)
- Passed the Senate on April 23, 1996 (100-0, in lieu of S. 1028)
- Reported by the joint conference committee on July 31, 1996; agreed to by the House on August 1, 1996 (421–2) and by the Senate on August 2, 1996 (98–0)
- Signed into law by President Bill Clinton on August 21, 1996
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The Health Insurance Portability and Accountability Act of 1996 (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996) was enacted by the United States Congress and signed by President Bill Clinton in 1996. It has been known as the Kennedy–Kassebaum Act or Kassebaum-Kennedy Act after two of its leading sponsors.[1][2] Title I of HIPAA protects health insurance coverage for workers and their families when they change or lose their jobs. Title II of HIPAA, known as the Administrative Simplification (AS) provisions, requires the establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers.[3]
Contents
- 1 Title I: Health Care Access, Portability, and Renewability
- 2 Title II: Preventing Health Care Fraud and Abuse; Administrative Simplification; Medical Liability Reform
- 2.1 Privacy Rule
- 2.1.1 2013 Final Omnibus Rule Update
- 2.2 Transactions and Code Sets Rule
- 2.2.1 Brief 5010 Transactions and Code Sets Rules Update Summary
- 2.3 Security Rule
- 2.4 Unique Identifiers Rule (National Provider Identifier)
- 2.5 Enforcement Rule
- 3 HITECH Act: Privacy Requirements
- 4 Effects on research and clinical care
- 4.1 Effects on research
- 4.2 Effects on clinical care
- 4.3 Costs of implementation
- 4.4 Education and Training
- 5 HIPAA and drug and alcohol rehabilitation organizations
- 6 Violations of HIPAA
- 7 Title III: Tax-related health provisions governing medical savings accounts
- 8 Title IV: Application and enforcement of group health insurance requirements
- 9 Title V: Revenue offset governing tax deductions for employers
- 10 Legislative information
- 11 References
- 12 External links
Title I: Health Care Access, Portability, and Renewability
Title I of HIPAA regulates the availability and breadth of group health plans and certain individual health insurance policies. It amended the Employee Retirement Income Security Act, the Public Health Service Act, and the Internal Revenue Code.
Title I requires the coverage of and also limits restrictions that a group health plan can place on benefits for preexisting conditions. Group health plans may refuse to provide benefits relating to preexisting conditions for a period of 12 months after enrollment in the plan or 18 months in the case of late enrollment.[4] Title I allows individuals to reduce the exclusion period by the amount of time that they had "creditable coverage" prior to enrolling in the plan and after any "significant breaks" in coverage.[5] "Creditable coverage" is defined quite broadly and includes nearly all group and individual health plans, Medicare, and Medicaid.[6] A "significant break" in coverage is defined as any 63 day period without any creditable coverage.[7]
Title I [8] also requires insurers to issue policies without exclusion to those leaving group health plans with creditable coverage (see above) exceeding 18 months, and [9] renew individual policies for as long as they are offered or provide alternatives to discontinued plans for as long as the insurer stays in the market without exclusion regardless of health condition.
Some health care plans are exempted from Title I requirements, such as long-term health plans and limited-scope plans such as dental or vision plans that are offered separately from the general health plan. However, if such benefits are part of the general health plan, then HIPAA still applies to such benefits. For example, if the new plan offers dental benefits, then it must count creditable continuous coverage under the old health plan towards any of its exclusion periods for dental benefits.
An alternate method of calculating creditable continuous coverage is available to the health plan under Title I. That is, 5 categories of health coverage can be considered separately, including dental and vision coverage. Anything not under those 5 categories must use the general calculation (e.g., the beneficiary may be counted with 18 months of general coverage, but only 6 months of dental coverage, because the beneficiary did not have a general health plan that covered dental until 6 months prior to the application date). Since limited-coverage plans are exempt from HIPAA requirements, the odd case exists in which the applicant to a general group health plan cannot obtain certificates of creditable continuous coverage for independent limited-scope plans such as dental to apply towards exclusion periods of the new plan that does include those coverages.
Hidden exclusion periods are not valid under Title I (e.g., "The accident, to be covered, must have occurred while the beneficiary was covered under this exact same health insurance contract"). Such clauses must not be acted upon by the health plan and also must be re-written so that they comply with HIPAA.
To illustrate, suppose someone enrolls in a group health plan on January 1, 2006. This person had previously been insured from January 1, 2004 until February 1, 2005 and from August 1, 2005 until December 31, 2005. To determine how much coverage can be credited against the exclusion period in the new plan, start at the enrollment date and count backwards until a significant break in coverage is reached. So, the five months of coverage between August 1, 2005 and December 31, 2005 clearly counts against the exclusion period. But the period without insurance between February 1, 2005 and August 1, 2005 is greater than 63 days. Thus, this is a significant break in coverage, and any coverage prior to it cannot be deducted from the exclusion period. So, this person could deduct five months from his exclusion period, reducing the exclusion period to seven months. Hence, Title I requires that any preexisting condition begin to be covered on August 1, 2006.
Title II: Preventing Health Care Fraud and Abuse; Administrative Simplification; Medical Liability Reform
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Title II of HIPAA defines policies, procedures and guidelines for maintaining the privacy and security of individually identifiable health information as well as outlining numerous offenses relating to health care and sets civil and criminal penalties for violations. It also creates several programs to control fraud and abuse within the health care system.[10][11][12] However, the most significant provisions of Title II are its Administrative Simplification rules. Title II requires the Department of Health and Human Services (HHS) to draft rules aimed at increasing the efficiency of the health care system by creating standards for the use and dissemination of health care information.
These rules apply to "covered entities" as defined by HIPAA and the HHS. Covered entities include health plans, health care clearinghouses, such as billing services and community health information systems, and health care providers that transmit health care data in a way that is regulated by HIPAA.[13][14]
Per the requirements of Title II, the HHS has promulgated five rules regarding Administrative Simplification: the Privacy Rule, the Transactions and Code Sets Rule, the Security Rule, the Unique Identifiers Rule, and the Enforcement Rule.
Privacy Rule
The effective compliance date of the Privacy Rule was April 14, 2003, with a one-year extension for certain "small plans". The HIPAA Privacy Rule regulates the use and disclosure of Protected Health Information (PHI) held by "covered entities" (generally, health care clearinghouses, employer sponsored health plans, health insurers, and medical service providers that engage in certain transactions.)[15] By regulation, the Department of Health and Human Services extended the HIPAA privacy rule to independent contractors of covered entities who fit within the definition of "business associates".[16] PHI is any information held by a covered entity which concerns health status, provision of health care, or payment for health care that can be linked to an individual.[17] This is interpreted rather broadly and includes any part of an individual's medical record or payment history. Covered entities must disclose PHI to the individual within 30 days upon request.[18] They also must disclose PHI when required to do so by law such as reporting suspected child abuse to state child welfare agencies.[19]
Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes as required by law (including court orders, court-ordered warrants, subpoenas) and administrative requests; or to identify or locate a suspect, fugitive, material witness, or missing person.[20]
A covered entity may disclose PHI (Protected Health Information) to facilitate treatment, payment, or health care operations without a patient's express written authorization.[21] Any other disclosures of PHI (Protected Health Information) require the covered entity to obtain written authorization from the individual for the disclosure.[22] However, when a covered entity discloses any PHI, it must make a reasonable effort to disclose only the minimum necessary information required to achieve its purpose.[23]
The Privacy Rule gives individuals the right to request that a covered entity correct any inaccurate PHI.[24] It also requires covered entities to take reasonable steps to ensure the confidentiality of communications with individuals.[25] For example, an individual can ask to be called at his or her work number instead of home or cell phone numbers.
The Privacy Rule requires covered entities to notify individuals of uses of their PHI. Covered entities must also keep track of disclosures of PHI and document privacy policies and procedures.[26] They must appoint a Privacy Official and a contact person[27] responsible for receiving complaints and train all members of their workforce in procedures regarding PHI.[28]
An individual who believes that the Privacy Rule is not being upheld can file a complaint with the Department of Health and Human Services Office for Civil Rights (OCR).[29][30] However, according to the Wall Street Journal, the OCR has a long backlog and ignores most complaints. "Complaints of privacy violations have been piling up at the Department of Health and Human Services. Between April of 2003 and November 2006, the agency fielded 23,886 complaints related to medical-privacy rules, but it has not yet taken any enforcement actions against hospitals, doctors, insurers or anyone else for rule violations. A spokesman for the agency says it has closed three-quarters of the complaints, typically because it found no violation or after it provided informal guidance to the parties involved."[31] However, in July 2011, UCLA agreed to pay $865,500 in a settlement regarding potential HIPAA violations. An HHS Office for Civil Rights investigation showed that from 2005 to 2008 unauthorized employees repeatedly and without legitimate cause looked at the electronic protected health information of numerous UCLAHS patients.[32]
2013 Final Omnibus Rule Update
In January 2013, HIPAA was updated via the Final Omnibus Rule.[33] Included in changes were updates to the Security Rule and Breach Notification portions of the HITECH Act. The greatest changes relate to the expansion of requirements to include business associates, where only covered entities had originally been held to uphold these sections of the law.
Additionally, the definition of 'significant harm' to an individual in the analysis of a breach was updated to provide more scrutiny to covered entities with the intent of disclosing more breaches which had been previously gone unreported. Previously an organization needed proof that harm had occurred whereas now they must prove the counter, that harm had not occurred.
Protection of PHI was changed from indefinite to 50 years after death. More-severe penalties for violation of PHI privacy requirements were also approved.
Transactions and Code Sets Rule
HIPAA was intended to make the health care system in the United States more efficient by standardizing health care transactions. HIPAA added a new Part C titled "Administrative Simplification" to Title XI of the Social Security Act. This is supposed to simplify health care transactions by requiring all health plans to engage in health care transactions in a standardized way.
The HIPAA/EDI provision was scheduled to take effect from October 16, 2003 with a one-year extension for certain "small plans". However, due to widespread confusion and difficulty in implementing the rule, CMS granted a one-year extension to all parties.[citation needed] On January 1, 2012 newer versions, ASC X12 005010 and NCPDP D.0 become effective, replacing the previous ASC X12 004010 and NCPDP 5.1 mandate.[34] The ASC X12 005010 version provides a mechanism allowing the use of ICD-10-CM as well as other improvements.
After July 1, 2005 most medical providers that file electronically did have to file their electronic claims using the HIPAA standards in order to be paid.[citation needed]
Under HIPAA, HIPAA-covered health plans are now required to use standardized HIPAA electronic transactions. See, 42 USC § 1320d-2 and 45 CFR Part 162. Information about this can be found in the final rule for HIPAA electronic transaction standards (74 Fed. Reg. 3296, published in the Federal Register on January 16, 2009), and on the CMS website here:CMS information on HIPAA standardized electronic transactions
Key EDI(X12) transactions used for HIPAA compliance are:
EDI Health Care Claim Transaction set (837) is used to submit health care claim billing information, encounter information, or both, except for retail pharmacy claims (see EDI Retail Pharmacy Claim Transaction). It can be sent from providers of health care services to payers, either directly or via intermediary billers and claims clearinghouses. It can also be used to transmit health care claims and billing payment information between payers with different payment responsibilities where coordination of benefits is required or between payers and regulatory agencies to monitor the rendering, billing, and/or payment of health care services within a specific health care/insurance industry segment.
For example, a state mental health agency may mandate all healthcare claims, Providers and health plans who trade professional (medical) health care claims electronically must use the 837 Health Care Claim: Professional standard to send in claims. As there are many different business applications for the Health Care claim, there can be slight derivations to cover off claims involving unique claims such as for Institutions, Professionals, Chiropractors, and Dentists etc.
EDI Retail Pharmacy Claim Transaction (NCPDP Telecommunications Standard version 5.1) is used to submit retail pharmacy claims to payers by health care professionals who dispense medications, either directly or via intermediary billers and claims clearinghouses. It can also be used to transmit claims for retail pharmacy services and billing payment information between payers with different payment responsibilities where coordination of benefits is required or between payers and regulatory agencies to monitor the rendering, billing, and/or payment of retail pharmacy services within the pharmacy health care/insurance industry segment.
EDI Health Care Claim Payment/Advice Transaction Set (835) can be used to make a payment, send an Explanation of Benefits (EOB), send an Explanation of Payments (EOP) remittance advice, or make a payment and send an EOP remittance advice only from a health insurer to a health care provider either directly or via a financial institution.
EDI Benefit Enrollment and Maintenance Set (834) can be used by employers, unions, government agencies, associations or insurance agencies to enroll members to a payer. The payer is a healthcare organization that pays claims, administers insurance or benefit or product. Examples of payers include an insurance company, health care professional (HMO), preferred provider organization (PPO), government agency (Medicaid, Medicare etc.) or any organization that may be contracted by one of these former groups.
EDI Payroll Deducted and other group Premium Payment for Insurance Products (820) is a transaction set which can be used to make a premium payment for insurance products. It can be used to order a financial institution to make a payment to a payee.
EDI Health Care Eligibility/Benefit Inquiry (270) is used to inquire about the health care benefits and eligibility associated with a subscriber or dependent.
EDI Health Care Eligibility/Benefit Response (271) is used to respond to a request inquiry about the health care benefits and eligibility associated with a subscriber or dependent.
EDI Health Care Claim Status Request (276) This transaction set can be used by a provider, recipient of health care products or services or their authorized agent to request the status of a health care claim.
EDI Health Care Claim Status Notification (277) This transaction set can be used by a health care payer or authorized agent to notify a provider, recipient or authorized agent regarding the status of a health care claim or encounter, or to request additional information from the provider regarding a health care claim or encounter. This transaction set is not intended to replace the Health Care Claim Payment/Advice Transaction Set (835) and therefore, is not used for account payment posting. The notification is at a summary or service line detail level. The notification may be solicited or unsolicited.
EDI Health Care Service Review Information (278) This transaction set can be used to transmit health care service information, such as subscriber, patient, demographic, diagnosis or treatment data for the purpose of request for review, certification, notification or reporting the outcome of a health care services review.
EDI Functional Acknowledgement Transaction Set (997) this transaction set can be used to define the control structures for a set of acknowledgments to indicate the results of the syntactical analysis of the electronically encoded documents. Although it is not specifically named in the HIPAA Legislation or Final Rule, it is necessary for X12 transaction set processing. The encoded documents are the transaction sets, which are grouped in functional groups, used in defining transactions for business data interchange. This standard does not cover the semantic meaning of the information encoded in the transaction sets.
Brief 5010 Transactions and Code Sets Rules Update Summary
1) Transaction Set (997) will be replaced by Transaction Set (999) "acknowledgement report".
2) The size of many fields {segment elements} will be expanded, causing a need for all IT providers to expand corresponding fields, element, files, GUI, paper media and databases.
3) Some segments have been removed from existing Transaction Sets.
4) Many segments have been added to existing Transaction Sets allowing greater tracking and reporting of cost and patient encounters.
5) Capacity to use both "International Classification of Diseases" versions 9 (ICD-9) and 10 (ICD-10-CM) has been added.[35][36]
Security Rule
The Final Rule on Security Standards was issued on February 20, 2003. It took effect on April 21, 2003 with a compliance date of April 21, 2005 for most covered entities and April 21, 2006 for "small plans". The Security Rule complements the Privacy Rule. While the Privacy Rule pertains to all Protected Health Information (PHI) including paper and electronic, the Security Rule deals specifically with Electronic Protected Health Information (EPHI). It lays out three types of security safeguards required for compliance: administrative, physical, and technical. For each of these types, the Rule identifies various security standards, and for each standard, it names both required and addressable implementation specifications. Required specifications must be adopted and administered as dictated by the Rule. Addressable specifications are more flexible. Individual covered entities can evaluate their own situation and determine the best way to implement addressable specifications. Some privacy advocates have argued that this "flexibility" may provide too much latitude to covered entities.[37] The standards and specifications are as follows:
- Administrative Safeguards – policies and procedures designed to clearly show how the entity will comply with the act
- Covered entities (entities that must comply with HIPAA requirements) must adopt a written set of privacy procedures and designate a privacy officer to be responsible for developing and implementing all required policies and procedures.
- The policies and procedures must reference management oversight and organizational buy-in to compliance with the documented security controls.
- Procedures should clearly identify employees or classes of employees who will have access to electronic protected health information (EPHI). Access to EPHI must be restricted to only those employees who have a need for it to complete their job function.
- The procedures must address access authorization, establishment, modification, and termination.
- Entities must show that an appropriate ongoing training program regarding the handling of PHI is provided to employees performing health plan administrative functions.
- Covered entities that out-source some of their business processes to a third party must ensure that their vendors also have a framework in place to comply with HIPAA requirements. Companies typically gain this assurance through clauses in the contracts stating that the vendor will meet the same data protection requirements that apply to the covered entity. Care must be taken to determine if the vendor further out-sources any data handling functions to other vendors and monitor whether appropriate contracts and controls are in place.
- A contingency plan should be in place for responding to emergencies. Covered entities are responsible for backing up their data and having disaster recovery procedures in place. The plan should document data priority and failure analysis, testing activities, and change control procedures.
- Internal audits play a key role in HIPAA compliance by reviewing operations with the goal of identifying potential security violations. Policies and procedures should specifically document the scope, frequency, and procedures of audits. Audits should be both routine and event-based.
- Procedures should document instructions for addressing and responding to security breaches that are identified either during the audit or the normal course of operations.
- Physical Safeguards – controlling physical access to protect against inappropriate access to protected data
- Controls must govern the introduction and removal of hardware and software from the network. (When equipment is retired it must be disposed of properly to ensure that PHI is not compromised.)
- Access to equipment containing health information should be carefully controlled and monitored.
- Access to hardware and software must be limited to properly authorized individuals.
- Required access controls consist of facility security plans, maintenance records, and visitor sign-in and escorts.
- Policies are required to address proper workstation use. Workstations should be removed from high traffic areas and monitor screens should not be in direct view of the public.
- If the covered entities utilize contractors or agents, they too must be fully trained on their physical access responsibilities.
- Technical Safeguards – controlling access to computer systems and enabling covered entities to protect communications containing PHI transmitted electronically over open networks from being intercepted by anyone other than the intended recipient.
- Information systems housing PHI must be protected from intrusion. When information flows over open networks, some form of encryption must be utilized. If closed systems/networks are utilized, existing access controls are considered sufficient and encryption is optional.
- Each covered entity is responsible for ensuring that the data within its systems has not been changed or erased in an unauthorized manner.
- Data corroboration, including the use of check sum, double-keying, message authentication, and digital signature may be used to ensure data integrity.
- Covered entities must also authenticate entities with which they communicate. Authentication consists of corroborating that an entity is who it claims to be. Examples of corroboration include: password systems, two or three-way handshakes, telephone callback, and token systems.
- Covered entities must make documentation of their HIPAA practices available to the government to determine compliance.
- In addition to policies and procedures and access records, information technology documentation should also include a written record of all configuration settings on the components of the network because these components are complex, configurable, and always changing.
- Documented risk analysis and risk management programs are required. Covered entities must carefully consider the risks of their operations as they implement systems to comply with the act. (The requirement of risk analysis and risk management implies that the act’s security requirements are a minimum standard and places responsibility on covered entities to take all reasonable precautions necessary to prevent PHI from being used for non-health purposes.)
Unique Identifiers Rule (National Provider Identifier)
HIPAA covered entities such as providers completing electronic transactions, healthcare clearinghouses, and large health plans, must use only the National Provider Identifier (NPI) to identify covered healthcare providers in standard transactions by May 23, 2007. Small health plans must use only the NPI by May 23, 2008.
Effective from May 2006 (May 2007 for small health plans), all covered entities using electronic communications (e.g., physicians, hospitals, health insurance companies, and so forth) must use a single new NPI. The NPI replaces all other identifiers used by health plans, Medicare, Medicaid, and other government programs.[38] However, the NPI does not replace a provider's DEA number, state license number, or tax identification number. The NPI is 10 digits (may be alphanumeric), with the last digit being a checksum. The NPI cannot contain any embedded intelligence; in other words, the NPI is simply a number that does not itself have any additional meaning. The NPI is unique and national, never re-used, and except for institutions, a provider usually can have only one. An institution may obtain multiple NPIs for different "subparts" such as a free-standing cancer center or rehab facility.
Enforcement Rule
On February 16, 2006, HHS issued the Final Rule regarding HIPAA enforcement. It became effective on March 16, 2006. The Enforcement Rule sets civil money penalties for violating HIPAA rules and establishes procedures for investigations and hearings for HIPAA violations. For many years there were few prosecutions for violations.[39]
- This may have changed with the fining of $50,000 to the Hospice of North Idaho (HONI) as the first entity to be fined for a potential HIPAA Security Rule breach affecting fewer than 500 people.[40] Rachel Seeger, a spokeswoman for HHS, stated, “HONI did not conduct an accurate and thorough risk analysis to the confidentiality of ePHI as part of its security management process from 2005 through Jan. 17, 2012.” This investigation was initiated with the theft from an employees vehicle of an unencrypted laptop containing 441 patient records.
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American Recovery and Reinvestment Act of 2009/Division A/Title XIII/Subtitle D
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As of March 2013, the U.S. Dept. of Health and Human Resources (HHS) has investigated over 19,306 cases that have been resolved by requiring changes in privacy practice or by corrective action. If noncompliance is determined by HHS, entities must apply corrective measures. Complaints have been investigated against many different types of businesses such as national pharmacy chains, major health care centers, insurance groups, hospital chains and other small providers. There were 9,146 cases where the HHS investigation found that HIPAA was followed correctly. There were 44,118 cases that HHS did not find eligible cause for enforcement; for example, a violation that started before HIPAA started; cases withdrawn by the pursuer ; or an activity that does not actually violate the Rules. According to the HHS website (www.hhs.gov), the following lists the issues that have been reported according to frequency:
- Misuse and disclosures of PHI
- No protection in place of health information
- Patient unable to access their health information
- Using or disclosing more than the minimum necessary protected health information
- No safeguards of electronic protected health information. (www.hhs.gov/enforcement, 2013)
The most common entities found to be required to take corrective action in order to be in voluntary compliance according to HHS are listed by frequency:
- Private Practices
- Hospitals
- Outpatient Facilities
- Group plans such as insurance groups
- Pharmacies (hhs.gov/enforcement, 2013)
HITECH Act: Privacy Requirements
See the Privacy section of the Health Information Technology for Economic and Clinical Health Act (HITECH Act).
Effects on research and clinical care
The enactment of the Privacy and Security Rules has caused major changes in the way physicians and medical centers operate. The complex legalities and potentially stiff penalties associated with HIPAA, as well as the increase in paperwork and the cost of its implementation, were causes for concern among physicians and medical centers. An August 2006 article in the journal Annals of Internal Medicine detailed some such concerns over the implementation and effects of HIPAA.[41]
Effects on research
HIPAA restrictions on researchers have affected their ability to perform retrospective, chart-based research as well as their ability to prospectively evaluate patients by contacting them for follow-up. A study from the University of Michigan demonstrated that implementation of the HIPAA Privacy rule resulted in a drop from 96% to 34% in the proportion of follow-up surveys completed by study patients being followed after a heart attack.[42] Another study, detailing the effects of HIPAA on recruitment for a study on cancer prevention, demonstrated that HIPAA-mandated changes led to a 73% decrease in patient accrual, a tripling of time spent recruiting patients, and a tripling of mean recruitment costs.[43]
In addition, informed consent forms for research studies now are required to include extensive detail on how the participant's protected health information will be kept private. While such information is important, the addition of a lengthy, legalistic section on privacy may make these already complex documents even less user-friendly for patients who are asked to read and sign them.
These data suggest that the HIPAA privacy rule, as currently implemented, may be having negative impacts on the cost and quality of medical research. Dr. Kim Eagle, professor of internal medicine at the University of Michigan, was quoted in the Annals article as saying, "Privacy is important, but research is also important for improving care. We hope that we will figure this out and do it right."[41]
Effects on clinical care
The complexity of HIPAA, combined with potentially stiff penalties for violators, can lead physicians and medical centers to withhold information from those who may have a right to it. A review of the implementation of the HIPAA Privacy Rule by the U.S. Government Accountability Office found that health care providers were "uncertain about their legal privacy responsibilities and often responded with an overly guarded approach to disclosing information...than necessary to ensure compliance with the Privacy rule".[41] Reports of this uncertainty continue.[44]
Costs of implementation
In the period immediately prior to the enactment of the HIPAA Privacy and Security Acts, medical centers and medical practices were charged with getting "into compliance". With an early emphasis on the potentially severe penalties associated with violation, many practices and centers turned to private, for-profit "HIPAA consultants" who were intimately familiar with the details of the legislation and offered their services to ensure that physicians and medical centers were fully "in compliance". In addition to the costs of developing and revamping systems and practices, the increase in paperwork and staff time necessary to meet the legal requirements of HIPAA may impact the finances of medical centers and practices at a time when insurance companies and Medicare reimbursement is also declining.
Education and Training
Education and training of healthcare providers is paramount to correct implementation of the HIPAA Privacy and Security Acts. Effective training must describe the statutory and regulatory background and purpose of HIPAA and a general summary of the principles and key provisions of the Privacy Rule. Explain and define the type of entities that are covered by the Privacy Rule. The term business associate is defined, as are the requirements of the Privacy Rule when they carry out health care activities and functions on behalf of covered entities. Describes Privacy Rule provisions that address how entity organization may affect privacy functions, Describes the health information that is protected by the Privacy Rule. The presentation extensively describes the required and permitted uses and disclosures of PHI by a covered entity or its business associate, including situations where PHI may be used or disclosed without the individual’s authorization and when such authorization is required. The Rule’s minimum necessary provisions and its requirements are explained. Summarizes the Privacy Rule’s provisions and requirements related to research. Describes when a covered entity may use and disclose PHI for research purposes and what research is affected. The presentation illustrates the relationship of the Privacy Rule’s research provisions to other research rules, such as the Common Rule. Describes the Privacy Rule’s administrative requirements for covered entities, such as policies and procedures, data safeguards, documentation and record retention, prohibition on retaliation, complaints to the covered entity, workforce training and sanctions.
HIPAA and drug and alcohol rehabilitation organizations
Special considerations for confidentiality are needed for health care organizations that offer federally funded drug or alcohol rehabilitation services.
Predating HIPAA by over a quarter century are the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970[45] and language amended by the Drug Abuse Office and Treatment Act of 1972.[41][46]
Violations of HIPAA
A breakdown of the HIPAA violations that resulted in the illegal exposure of personal information.
According to the US Department of Health and Human Services Office for Civil Rights, between April 2003 and January 2013 they received 91,000 complaints of HIPAA violations, in which 22,000 led to enforcement actions of varying kinds (from settlements to fines) and 521 led to referrals to the US Dept of Justice (criminal actions).[47] Examples of significant breaches of protected information and other HIPAA violations include:
- the largest loss of data that affected 4.9 million people by Tricare Management of Virginia in 2011[48]
- the largest fines of $4.3 million levied against Cignet Health of Maryland in 2010 for ignoring patients' requests to obtain copies of their own records and repeated ignoring of federal officials' inquiries[49]
- the first criminal indictment was lodged in 2011 against a Virginia physician who shared information with a patient's employer "under the false pretenses that the patient was a serious and imminent threat to the safety of the public, when in fact he knew that the patient was not such a threat."[50]
The differences between civil and criminal penalties are summarized in the following table:
| Type of Violation |
CIVIL Penalty (min) |
CIVIL Penalty (max) |
| Individual did not know (and by exercising reasonable diligence would not have known) that he/she violated HIPAA |
$100 per violation, with an annual maximum of $25,000 for repeat violations |
$50,000 per violation, with an annual maximum of $1.5 million |
| HIPAA violation due to reasonable cause and not due to willful neglect |
$1,000 per violation, with an annual maximum of $100,000 for repeat violations |
$50,000 per violation, with an annual maximum of $1.5 million |
| HIPAA violation due to willful neglect but violation is corrected within the required time period |
$10,000 per violation, with an annual maximum of $250,000 for repeat violations |
$50,000 per violation, with an annual maximum of $1.5 million |
| HIPAA violation is due to willful neglect and is not corrected |
$50,000 per violation, with an annual maximum of $1,000,000 |
$50,000 per violation, with an annual maximum of $1.5 million |
| Type of Violation |
CRIMINAL Penalty |
| Covered entities and specified individuals who "knowingly" obtain or disclose individually identifiable health information |
A fine of up to $50,000
Imprisonment up to 1 year
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| Offenses committed under false pretenses |
A fine of up to $100,000
Imprisonment up to 5 years
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| Offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain or malicious harm |
A fine of up to $250,000
Imprisonment up to 10 years
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Title III: Tax-related health provisions governing medical savings accounts
Title III standardizes the amount that may be saved per person in a pre-tax medical savings account. Beginning in 1997, medical savings account ("MSA") are available to employees covered under an employer-sponsored high deductible plan of a small employer and self-employed individuals.
Title IV: Application and enforcement of group health insurance requirements
Title IV specifies conditions for group health plans regarding coverage of persons with pre-existing conditions, and modifies continuation of coverage requirements. It also clarifies continuation coverage requirements and includes COBRA clarification.
Title V: Revenue offset governing tax deductions for employers
Title V includes provisions related to company-owned life insurance for employers providing company-owned life insurance premiums, prohibiting the tax-deduction of interest on life insurance loans, company endowments, or contracts related to the company. It also repeals the financial institution rule to interest allocation rules. Finally, it amends provisions of law relating to people who give up United States citizenship or permanent residence, expanding the expatriation tax to be assessed against those deemed to be giving up their U.S. status for tax reasons, and making ex-citizens' names part of the public record through the creation of the Quarterly Publication of Individuals Who Have Chosen to Expatriate.[51]
Legislative information
- Pub.L. 104–191, 110 Stat. 1936
- H.R. 3103; H. Rept. 104-469, part 1; H. Rept. 104-736
- S. 1028; S. 1698; S. Rept. 104-156
- HHS Security Standards, 45 C.F.R. 160, 162, and 164
- HHS Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. 160 and 164
References
- ^ Atchinson, Brian K.; Fox, Daniel M. (May–June 1997). "The Politics Of The Health Insurance Portability And Accountability Act". Health Affairs 16 (3): 146–150. doi:10.1377/hlthaff.16.3.146.
- ^ 104th Congress, 1st Session, S.1028
- ^ Centers for Medicare and Medicaid Services
- ^ 29 U.S.C. § 1181(a)(2)
- ^ 29 U.S.C. § 1181(a)(3)
- ^ 29 U.S.C. § 1181(c)(1)
- ^ 29 U.S.C. § 1181(c)(2)(A)
- ^ (Sub B Sec 110)
- ^ (Sub B Sec 111)
- ^ 42 U.S.C. § 1320a-7c
- ^ 42 U.S.C. § 1395ddd
- ^ 42 U.S.C. § 1395b-5
- ^ 45 C.F.R. 160.103
- ^ Definitions of a Covered Entity
- ^ Terry, Ken "Patient Privacy - The New Threats" Physicians Practice journal, volume 19, number 3, year 2009, access date July 2, 2009
- ^ See 45 CFR Sections 160.102 and 160.103.
- ^ 45 C.F.R. 160.103
- ^ 45 C.F.R. 164.524(b)
- ^ 45 C.F.R. 164.512
- ^ Summary of the HIPAA Privacy Rule
- ^ 45 C.F.R. 164.524(a)(1)(ii)
- ^ 45 C.F.R. 164.502(a)(1)(iv)
- ^ 45 C.F.R. 164.502(b)
- ^ 45 C.F.R. 164.526
- ^ 45 C.F.R. 164.522(b)
- ^ 45 C.F.R. 164.528
- ^ 45 C.F.R. 164.530(a)
- ^ 45 C.F.R. 164.530(b)
- ^ "How to File A Health Information Privacy Complaint with the Office for Civil Rights"
- ^ 45 C.F.R. 160.306
- ^ "Spread of records stirs fears of privacy erosion", December 23, 2006, by Theo Francis, The Wall Street Journal
- ^ "University of California settles HIPAA Privacy and Security case involving UCLA Health System facilities".
- ^ http://www.hhs.gov/ocr/privacy/hipaa/administrative/omnibus/index.html
- ^ CMS Transactions and Code Sets Regulations
- ^ CSM.gov "Medicare & Medicaid Services" "Standards for Electronic Transactions-New Versions, New Standard and New Code Set - Final Rules"
- ^ "The Looming Problem in Healthcare EDI: ICD-10 and HIPAA 5010 migration" October 10, 2009 - Shahid N. Shah
- ^ Wafa, Tim. "How the Lack of Prescriptive Technical Granularity in HIPAA Has Compromised Patient Privacy". Northern Illinois University Law Review, Volume 30, Number 3, Summer 2010. SSRN 1547425.
- ^ Health Insurance Portability and Accountability Act of 1996 (HIPAA). Steve Anderson: 'HealthInsurance.org.
- ^ Medical Privacy Law Nets No Fines. Rob Stein: The Washington Post.
- ^ [1] Feds step up HIPAA enforcement with hospice settlement
- ^ a b c d Wilson J (2006). "Health Insurance Portability and Accountability Act Privacy rule causes ongoing concerns among clinicians and researchers". Ann Intern Med 145 (4): 313–6. doi:10.7326/0003-4819-145-4-200608150-00019. PMID 16908928.
- ^ Armstrong D, Kline-Rogers E, Jani S, Goldman E, Fang J, Mukherjee D, Nallamothu B, Eagle K (2005). "Potential impact of the HIPAA privacy rule on data collection in a registry of patients with acute coronary syndrome". Arch Intern Med 165 (10): 1125–9. doi:10.1001/archinte.165.10.1125. PMID 15911725.
- ^ Wolf M, Bennett C (2006). "Local perspective of the impact of the HIPAA privacy rule on research". Cancer 106 (2): 474–9. doi:10.1002/cncr.21599. PMID 16342254.
- ^ "Keeping Patients’ Details Private, Even From Kin," New York Times, July 3, 2007.
- ^ Pub.L. 91-161; 42 U.S.C. § 290dd-3 (1976); omitted and moved to 42 U.S.C. § 290dd-2 (2006 through Pub.L. 102-321)
- ^ Pub.L. 92-255, 42 U.S.C. § 290ee-3 (1976); omitted and moved to 42 U.S.C. § 290dd-2 (2006 through Pub.L. 102-321)
- ^ "Enforcement Highlights". OCR Home, Health Information Privacy, Enforcement Activities & Results, Enforcement Highlights. U.S. Department of Health & Human Services. Retrieved 3 March 2014.
- ^ "Breaches Affecting 500 or more Individuals". OCR Home, Health Information Privacy, HIPAA Administrative Simplification Statute and Rules, Breach Notification Rule. U.S. Department of Health & Human Services. Retrieved 3 March 2014.
- ^ "Notice of Proposed Determination". OCR Home, Health Information Privacy, News Archive. U.S. Department of Health & Human Services. October 2010. Retrieved 3 March 2014.
- ^ "HIPAA Privacy Complaint Turns Into Federal Criminal Prosecution for First Time". Compliance Corner (University of Missouri Healthcare) 10 (2): 1–2. February 2012. Retrieved 3 March 2014.
- ^ Kirsch, Michael S. (2004). "Alternative Sanctions and the Federal Tax Law: Symbols, Shaming, and Social Norm Management as a Substitute for Effective Tax Policy". Iowa Law Review 89 (863). Retrieved 2014-02-12.
External links
- California Office of HIPAA Implementation (CalOHI)
- "HIPAA", Centers for Medicare and Medicaid Services
- Congressional Research Service (CRS) reports regarding HIPAA, University of North Texas Libraries
- Full text of the Health Insurance Portability and Accountability Act (PDF/TXT) U.S. Government Printing Office
- Full text of the Health Insurance Portability and Accountability Act (HTM) Legal Archiver
- Office for Civil Rights page on HIPAA
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