HIPAA For Labor And Employment Attorneys: What You Need To Know – Food, Drugs, Healthcare, Life Sciences

Betty Q. Hixson

In their law practices, attorneys can regularly handle
sensitive patient information that’s protected under the Health
Insurance Portability and Accountability Act (HIPAA).  Lawyers
have a duty and responsibility to safeguard such information or
face severe penalties for noncompliance.

This article summarizes a webinar we hosted for the Law Firm
Alliance’s Employment Community. It lays out some HIPAA basics
that are helpful for employment attorneys to understand, starting
with three aspects associated with HIPAA.

What is HIPAA?

  • Privacy Rule – attempts to protect the privacy of patients by
    restricting the allowable uses and disclosures of protected health
    information (PHI):

    • Stipulates when, with whom, and under what circumstances PHI
      may be shared

    • Gives patients the right to obtain and examine their health
      records

    • Gives patients the right to direct covered entities’
      disclosures to third parties

    • Gives patients the right to request corrections to health
      records


  • Security Rule – attempts to ensure that PHI a covered entity
    creates, receives, maintains, or transmits electronically is
    appropriately secured

  • Breach Notification Rule – requires notification of a breach of
    PHI

The HIPAA Privacy Rule does not apply to everyone, and it does
not apply to everything. Instead, the HIPAA Privacy Rule applies to
covered entities and business associates. Within that context, the
HIPAA Privacy Rule generally only applies to PHI. 

Who Must Comply with HIPAA Regulations?

For HIPAA, a covered entity may include: 

  1. Health Care Providers

  2. Health Care Clearinghouses

  3. Health Plans

Regardless of size, every health care provider that
electronically transmits PHI in connection with certain types of
transactions is a covered entity. Benefit eligibility inquiries and
referral authorization requests are covered transactions; the
Department of Health and Human Services (HHS) has established
standards for other transactions. 

The privacy rule applies to a health care provider, whether it
electronically transmits these transactions directly or uses a
third party to do so on its behalf.  The definition of a
health care provider covers nearly all providers of services,
whether public or private hospitals, sole proprietors, or group
practices. 

Health care clearinghouses are more complicated and less common.
A health care clearinghouse is any entity that processes
information on behalf of another entity, such as a health care
billing service.

According to HIPAA, a health plan is defined as an individual or
group plan that provides or pays for the cost of medical care. The
term includes the following: 

  • Group Health Plans

  • Dental Insurer

  • Vision Insurer

  • Prescription Drug Insurer

  • Health Maintenance Organizations

  • Medicare and Medicaid

There are two alternatives for eligibility to be a group health
plan under HIPAA. The plan has to have 50 or more participants, or
there must be a third-party administrator. If a plan has less than
50 participants and is self-administered, it is not a group health
plan under HIPAA.

Under HIPAA, several plans, policies, and programs are not
covered by the definition of a group health plan.  A few of
these exceptions include: 

  • Accidental Death Policies

  • Dismemberment Policies

  • Disability Income Insurance

  • Liability Insurance

  • Worker’s Compensation Insurance

  • Coverage for On-Site Medical Clinics

The other category covered by HIPAA is a business associate,
defined as a person or entity that performs certain functions or
activities on behalf of a covered entity. Business associates are
covered under the HIPAA Privacy Rule if the functions or activities
involve the use or disclosure of PHI. 

A few examples of functions or activities that could result in a
particular person or entity being termed a business associate
include claims processing or administration, data analysis,
utilization, review, quality assurance, billing, benefit
management, and practice management. Other services that might be
implicated include legal actuarial accounting, consulting,
management, and financial and intellectual property. 

The HHS website has frequently asked questions and day-to-day
examples of what may constitute a business associate. A law firm
that provides legal services to a health plan or a health care
provider involving access to PHI would be a business associate; an
independent medical transcriptionist that provides transcription
services to a health care provider would also qualify. 

A janitorial service that maintains a health care provider’s
office and has the potential to inadvertently or incidentally come
into contact with PHI would not be a business associate,
however.  This is due to the fact the janitorial service is
not tasked with receiving or transmitting PHI.

What Does HIPAA Protect?

PHI refers to individually identifiable health information held
or transmitted by a covered entity or business associate in any
form of media, whether electronic, paper, or oral. As the name
implies, individually identifiable health information is defined as
demographic data associated with an individual that could identify
that individual.

This could be an address, birthday, or social security number,
basically anything for which there is a reasonable basis to believe
the individual’s identity could be determined. The HIPAA
Privacy Rule excludes two items from the definition of
PHI: 

  • Employment Records – pertains to records with PHI a covered
    entity maintains in its capacity as an employer, as opposed to its
    capacity as a covered entity

  • Education Records – subject to the Family Educational Rights
    and Privacy Act

Generally, the use or disclosure of PHI is only permitted if a
patient specifically authorizes it in writing or if it is required
or permitted elsewhere in the HIPAA Privacy Rule. HIPAA requires
that a covered entity disclose PHI in only two
situations: 

  1. When requested by the individual or the individual’s
    personal representative

  2. When requested by HHS as part of a compliance investigation,
    review, or enforcement action

The use and disclosure of PHI are permitted, but not required if
it is for the purpose of treatment of a patient. For example,
consulting with a specialist to discuss a patient’s care is a
treatment disclosure that does not require the patient’s
authorization.

Uses and disclosures associated with obtaining payment for
health care services do not require patient authorization.  If
a provider hired a law firm or collection agency to assist with
collecting an unpaid bill, patient authorization to disclose PHI
would not be required. However, a business associate agreement
would be required.  

Uses and disclosures associated with health care operations also
do not require patient authorization.  An example could arise
in merger and acquisition discussions between two health care
providers, where the buyer entity asks to review certain books and
records of the selling entity.

Key Takeaways for Attorneys 

One thing attorneys should know is that generally, employers do
not meet the definition of a covered entity under HIPAA. The HIPAA
Privacy Rule would apply if an employer obtains health information
on behalf of the employer-sponsored group health plan. Conversely,
the rule would not apply if PHI is being collected as: 

  • An aspect of the ordinary course of employment

  • A means of tracking employee vaccination status 

An exception pertains to on-site medical clinics. With regard to
on-site clinics, the employer is exempt from direct compliance;
however, the actual providers/clinicians at that on-site clinic may
be covered entities and thus may very well be bound by the HIPAA
Privacy Rule.

However, HIPPA Privacy Rule typically does not apply to some
attorneys that constantly receive subpoenas for employment
records.  Even if there is PHI in the file, HIPAA does not
apply and does not prohibit you and/or your client from disclosing
that information.

Many attorneys that do not deal with HIPAA frequently will have
employees sign a PHI disclosure authorization when it isn’t
necessary. There is nothing wrong with that, and it improves the
chances of getting the requested information.

But at what point does an attorney becomes a business
associate?  A good practice is to have a new covered entity
client sign a business associate agreement when it signs the
engagement agreement.  This is due to the fact that situations
can quickly change, and HHS can sometimes fine business associates
for not having an agreement in place when one was required. 
To ensure certain items do not bind the firm in the business
associate agreement, it’s best to include a provision stating
the agreement only applies if and to the extent that HIPAA
applies.

I often recommend that attorneys visit the HHS website as it
includes HIPAA guidance, frequently asked questions, and a sample
business associate agreement to help ensure compliance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

https://www.mondaq.com/unitedstates/healthcare/1161314/hipaa-for-labor-and-employment-attorneys-what-you-need-to-know

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