Release of Medical Records in Georgia Presentation to Georgia Hospital Association 6 th Annual Compliance Officers Retreat March 7, 2013 James Lawton Deputy General Counsel HealthPort Technologies, LLC
AGENDA Confidentiality of Records and Exceptions Access and Authorizations Special Conditions Substance Abuse/Dependency HIV/AIDS Mental Health Legal Process POD, Subpoenas, Court Order Certification of Records Georgia Fee Statute HITECH Final Rules Finally Here
Confidentiality of Medical Records State Constitution affords the patient a right of privacy in medical records. King v. State, 272 Ga. 788, 535 S.E.2d 492 (Ga 2000) No physician or care facility shall be required to disclose any medical information concerning a patient except: With Valid Authorization, To State Dept of Human Resources, or Pursuant to Subpoena, Court Order, other Legal Requirement Additional Statutory Protection for Substance Abuse, AIDS, and Mental Health/Psychotherapy
Exceptions to Confidentiality Exceptions Based on Federal Law Disclosures permitted without patient authorization for: RACs and QIOs Public Health Exigent Circumstances OSHA with a Medical Access Order
Exceptions to Confidentiality GA Statutory basis for disclosure of medical information without patient authorization: Certain Contagious Diseases and STDs Suspected Child Abuse/Neglect Non-Accidental injuries Juvenile Drug Use Suspected Abuse of Long-Term Care Patient Disabled Newborn (deaf, blind or serious congenital defect) Disposal of Fetus Workers Comp Claim Georgia Professional Licensing Board (subpoena)
Exception for Payment, Treatment and Operations HIPAA has broad exception for PTO, but Georgia Limits use or disclosure of medical information without Patient Consent to: Providers Involved in Treatment Consented to by Patient Bill Patient Comply with Law Treatment and Payment for Medicare/Medicaid/TriCare Patients In Emergency: Required Treatment or Transfer for Care
Exception for Payment, Treatment and Operations Obtain Patient s Permission to Use and Disclose in Accordance with Provider s Notice of Privacy Practices Staff Access Incidental to Treatment Utilization/Quality Review Claims Processing
Patient Access When Can Patient Access and Who Can Act for Patient Competent Adult Patient or Emancipated Minor Patient Parent, Foster Parent or Court-Appointed Guardian of Minor DFACS Legally Appointed Guardian of Incompetent Patient Person acting Under a Durable POA for Health Care Advance Directives Deceased Patients Legally Appointed Personal Representative of the Estate Next of Kin - Surviving Spouse, Child, Parent
Patient Access Time - 30 days to make records available Trumps HIPAA s longer period Basis for Denial: - Mental Health Records or Substance Abuse where the treating physician or psychotherapist (or chief medical officer of the facility) determines the release of such records will be detrimental to patient s physical or mental health.
Release with Authorization Facility May Release Records in Accordance with a Request and Valid Authorization Authorization Should Be Specific When Involving Sensitive Conditions HIPAA Requirements for a Valid Authorization -Name of Person/Facility Authorized to Make the Disclosure -Name or Title of Person or Organization to Receive the Records -Patient Name -Purpose of Disclosure (contrast Patient Access) -Scope/Description of Records to be Released -Signature of Patient or Personal Rep -That the Authorization is Subject to Revocation -Expiration Date Whether Via Fixed Date or Event -Notice of Re-disclosure Risk
Sensitive Conditions - Substance Abuse Patient Access: Right to review and get a copy unless treating physician determines the disclosure would be detrimental to the mental or physical well being of the patient. Disclosures: With Patient Authorization - To any person/entity designated in writing by patient. To Other Medical Personnel To meet the patient s bona fide medical emergency. To Qualified Personnel for Research/Audit/Evaluation. Court Order Except as noted below for criminal investigations, release only pursuant to Court Order upon finding of good cause. Release to the Court. Do NOT Disclose Pursuant to Subpoena or POD Blood Test for Drug/Alcohol If test is for medical diagnosis, only disclose with Court Order. If test is for legal (e.g., DUI investigation), can also release pursuant to criminal subpoena or to investigating officer.
Sensitive Conditions HIV/AIDS AIDS Confidential Information (ACI) Defined by GA Law and has additional protections from disclosure compared with regular medical records. A patient's written consent is required to disclose ACI unless the disclosure is otherwise authorized or required by law. Disclosure via Legal Process: ACI may be disclosed as medical information pursuant to any other law which authorizes or requires the disclosure of medical information (including subpoenas and POD) if: (1) The person identified by that information: (A) Has specifically consented in writing to that disclosure; or (B) Is given at least ten (10) days notice prior to the disclosure and does not timely object; or (2) A Superior Court Order.
Sensitive Conditions HIV/AIDS Permitted Disclosures without Authorization: Notice to State Department of Human Resources Notice to Other Healthcare Facility Providing care to the infected Patient if risk of further infection or if necessary for the facility to provide appropriate care. Notice to Administrator of Institutional Care Facility with infected Patient Partner Notification: When the physician of an HIV infected patient reasonably believes that the spouse/partner or any child is a person at risk of being infected with HIV by that patient, the physician may disclose to that spouse, partner or child... after first attempting to notify the patient that such disclosure is going to be made.
Sensitive Conditions Mental Health Patient Access: Right to review unless treating physician determines the disclosure would be detrimental to the mental or physical well being of the patient. Patient of individual psychotherapy providers have right to access and obtain copies. Disclosures: With Patient Authorization - To any person/entity designated in writing by patient, including attorney. To Subsequent Admitting Facility To Other Medical Personnel When chief medical officer of the facility where records kept deems it essential for continued treatment or in a bona fide emergency. At a Hearing about the Patient To Law Enforcement In criminal investigation, can disclose whether a person was a patient of a state institution, together with last address. In criminal investigation involving a crime on the premises, can disclosure facts about incident, if person is/was a patient, name, address and whereabouts. Valid Subpoena or Court Order Release all except Psychotherapy records which are privileged under GA law.
Sensitive Conditions Psychotherapy Treatment Georgia Recognizes a Mental Health Provider-Patient Privilege for Psychotherapy Treatment - Comparable to Husband-Wife and Attorney-Client Privilege. Covers Confidential Communication Made for Treatment/Diagnosis Between Patient and Psychiatrists and Licensed Psychologists, Social Worker, Marriage/Family Therapist employing psychotherapeutic techniques Only Disclose with Specific Patient Authorization or When Specifically Ordered by Court Send to Court, not Attorneys
Legal Process Request For Production of Documents Subpoenas - State and Federal Workers Comp Court Orders Deposition Subpoenas Certification of Records
Request for Production of Documents Georgia Law Permits a Party in Litigation to Serve a Request for Production on a Non-Party. Not a Court Order Must be served on: All Parties The Patient, if not a Party, and The Non-Party Physician or Hospital that Owns the Records 20 days from date of service to Object If Objection, Requesting Party Must Obtain Court Order If No Objection (but no Specific Authorization)- Provide Records Except Sub. Abuse, HIV and Mental Health
Subpoena Types Trial or Testimony - Requires Personal Appearance Less Common Professional Treating Patient Duces Tecum Requires Company Records Common Original Records Need Not Be Provided Satisfied with Certified Copies of Medical Records
Subpoenas Common Sources of Subpoenas State or Federal Courts State Board of Workers Compensation Board of Medical Examiners/State Professional Licensing Board Department of Human Resources (Public Health) Service Personal Service or Certified or Statutory Overnight Delivery Out of State or County Must be Served by Law Enforcement in the County Where Subpoena is to be Served. If Invalid Subpoena Do NOT Disclose
State Court Subpoena Process for Evaluation/Response is Similar to POD Proof of Service Confirm that Patient (or Attorney) has Been Served! Wait 23 Days If Patient (or Other Party) Objects, Wait for Court Order If Patient Consents and Gives Specific Authorization(s) = Release Responsive Records If No Objection (but no Specific Authorization(s)) = Release Responsive Records Except Substance Abuse and Privileged Psychotherapist Treatment which require a Court Order
Federal Subpoena Served on Patient? - If Patient is a Party - No Need to Confirm Proof of Service - FRCP Requires Subpoenas to be Served on all Parties - If Patient is Not a Party, Obtain Proof of Service Wait 17 Days (FRCP gives 14 days to object). If Patient (or Other Party) Objects, Wait for Court Order If Patient Consents and Gives Specific Authorization = Release Responsive Records If No Objection (but no Specific Authorization(s)) = Release Responsive Records Except Substance Abuse and Privileged Psychotherapist Treatment which require a Court Order
Criminal Subpoenas King v. State creates some uncertainty -Most Certainty When Patient is Notified of Request -Is There Adequate Assurance the Information Will be Protected? -Protective Order? -May Want to Consult with Legal Counsel -Require Court Order? Grand Jury Subpoenas -Treated as Court Orders -Always Return to the Court Issuing (despite D.A. or U.S. Attorney requesting the records be returned to them)
Workers Compensation Has the Employee Put His/Her Medical Condition at Issue? Made a Claim for Benefits (look for Form WC-207 or WC-14) Employer Has Agreed to Disability Benefits (Form WC-1 or 2) Employer Has Agreed to Pay for Medical Expenses from Injury If Yes to Any of the Above, the Records Related to the Injury May Be Released Only Release From Date of Injury Forward Without Broader Patient Authorization If No to All Three, Do Not Release Without Separate Authorization
Court Orders Court Orders - Signed by a Judge Always Comply with a Court Order! Healthcare Facility is Protected from Claims of Improper Release Basis for Release of Substance Abuse and Psychotherapy Treatment without Patient Authorization Carefully Note Where Order Directs the Records to be Sent If Not Stated or Unclear, Deliver Records to the Court
Deposition Subpoenas Subpoenas for Deposition to Hospitals Usually Limited to: Professional Caregiver re: Specific Questions About Care To Custodian of Records to Authenticate Medical Records Generally unnecessary with Certification of Records New law Effective Jan. 1, 2013
Certification of Records for Admissibility -New Self-Authentication Law - Effective Jan. 1, 2013 Allows the use of records, in any form, of acts, events, conditions, opinions, or diagnoses if: (A) made at/near the time of the described act/event/condition/opinion/diagnoses (B) made by a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) It was the regular practice of that business activity to make the memorandum/report/record/data compilation. Each of These Elements Are Typically Met By Healthcare Facilities. Custodian of Records Can Execute an Certificate of Authenticity that is Notarized
Duplication Fees Current March 2013 Certification of Records - $9.70 Base Fee - $25.88 (never charge on patient request) Per Page Pages: $0.97 pages 1-20 $0.83 pages 21-100 $0.66 pages 101+ Above Rates Subject to Annual Adjustment for CPI-Med Non Paper Records (radiology, strips, etc): Full Reasonable Cost of Reproduction Workers Comp No charge for WC18 or 20A, otherwise: $0.20/page with Minimum $30, plus tax and actual postage $9.50/x-ray, plus tax and actual postage State Disability & Social Security Determination - $15.00
HITECH Final Rule Finally Here Marketing Sale of PHI Sale of Information vs. Service of Disclosure Patient Access - Electronic Records - Direct Provider to Send Records to 3 rd Party State Rates Still Deemed Reasonable
NOT LEGAL ADVICE The information in this presentation is provided as general informational and educational purposes to accompany a presentation of limited duration. The presentation only covers selected topics and is not a complete discussion of all laws relevant to the release of health information in Georgia. The information in this presentation is not offered as, and does not constitute legal advice or legal opinion. The provision of this information is not intended to create, and the receipt does not constitute, an attorney-client relationship. You should seek the advice of an attorney for specific legal questions.