Markovchick Vincent J., Pons Peter T., Bakes Katherine M.(ed.) Emergency medicine secrets. 5th ed
Подождите немного. Документ загружается.
Chapter 99 COST CONTAINMENT AND RISK MANAGEMENT IN EMERGENCY MEDICINE688
22. When a patient refuses care, what are the two criteria that must be present?
If a patient desires to leave the ED against medical advice, the patient must:
n
Be competent to refuse care
n
Understand the possible untoward sequelae that could result from refusal of care
All patients have the right to refuse care if these two criteria are met. Common sense (and
most risk managers) would tell you to err on the side of treating the patient if there is any
doubt as to competence.
23. What clinical problem-solving approach is most helpful in avoiding lawsuits?
When dealing with any patient, make sure you address the life threats: major problems that
could exist, given this presentation for this patient. The safe approach is to assume the
presence of these life threats, then set about to disprove them (see Chapter 1).
24. What physician behaviors may help avoid lawsuits?
n
Be courteous and kind to the patient and to the patient’s family.
n
Take time to communicate with the patient. It takes only seconds to tell the patient what is
going on, what the results of diagnostic studies are, and what you are thinking concerning
his or her case. Make sure all patient questions and concerns are addressed.
n
Dress neatly.
n
Explain and apologize for inordinate delays in patient care.
n
Make sure the medical record accurately reflects the care provided and the thought
processes behind the care.
This approach can be summarized in a simple statement: “Treat every patient as you would
want your mother treated.” This, of course, assumes you love your mother.
25. How can writing admission orders for admitted patients cause problems for
the emergency physician?
In many situations, writing admission orders for patients has made the emergency physician
liable for untoward events occurring to the patient in the hospital before he or she is seen by
the private physician. There is often significant peer pressure for the emergency physician to
write such orders. This practice is potentially dangerous and must be discouraged.
26. What are the criteria for reporting a physician to the National Practitioner Data
Bank (NPDB)?
The NPDB was established by the federal government in 1989 to track potential problem
physicians. The criteria for reporting a physician to the NPDB are any:
n
Payment made for a claim or judgment against a physician
n
Action taken by a state medical licensing board against a physician
n
Disciplinary action lasting more than 30 days taken against a physician by a group or
institution.
A hospital must query the NPDB about any physician applying for staff privileges and at the
time of reappointment of a physician to the medical staff.
27. How can clinical policies (evidence-based practice guidelines) decrease
malpractice risk for the emergency physician?
Many groups and organizations are developing evidence-based practice guidelines. If it can be
shown that a physician’s care was consistent with these guidelines, it may help to show the
appropriateness of the care and the lack of negligence.
28. How can clinical policies potentially increase malpractice risk for emergency
physicians?
Malpractice risk can be increased by applicable evidence-based practice guidelines if the
emergency physician is not aware of or if he or she chooses not to follow these guidelines
without carefully documenting the reasons for not doing so.
Chapter 99 COST CONTAINMENT AND RISK MANAGEMENT IN EMERGENCY MEDICINE 689
29. Does emergency medicine residency training decrease my malpractice risk?
One study revealed emergency medicine residency-trained physicians had significantly less
malpractice indemnity than non-emergency medicine residency-trained physicians. This
difference was not due to differences in the average indemnity but was due to significantly
fewer closed claims against emergency medicine residency-trained physicians with indemnity
paid. This resulted in a cost per physician-year of malpractice coverage for non-emergency
medicine residency-trained physicians that was more than twice that of emergency medicine
residency-trained physicians ($4,905 versus $2,212).
WEBSITES
Center for Medicare and Medicaid Services: www.cms.hhs.gov
National Quality Forum: www.qualityforum.org
BIBLIOGRAPHY
1. Branney SW, Pons PT, Markovchick VJ, et al: Malpractice occurrence in emergency medicine: does residency
training make a difference? J Emerg Med 19:99–105, 2000.
2. Cantrill SV, Karas S, editors: Cost-effective diagnostic testing in emergency medicine: guidelines for appropriate
utilization of clinical laboratory radiology studies, ed 2, Dallas, 2000, American College of Emergency
Physicians, 2000. pp 2–5 25–26.
3. Guterman SJ, VanRooyan MJ: Cost-effective medicine: the financial impact that practice guidelines have on
outpatient hospital charges in the emergency department. J Emerg Med 16:215-219, 1998.
4. Hampers LC, Cha S, Gutglass DJ, et al: The effect of price information on test-ordering behavior and patient
outcomes in a pediatric emergency department. Pediatrics 103:877–882, 1999.
5. Henry GL, Sullivan DJ: Emergency medicine risk management: a comprehensive review, ed 2 Dallas, 1997,
American College of Emergency Physicians.
6. Leddy JJ, Kesari A, Smolinski RJ: Implementation of the Ottawa ankle rule in a university sports medicine
center. Med Sci Sports Exerc 34:57–62, 2002.
7. Winslow CM, Solomon DH, Chassin MR, et al: The appropriateness of carotid endarterectomy. N Engl J Med
318:721–727, 1988.
690
CHAPTER 100
EMTALA, JC, AND HIPAA
Peter W. Pryor II, MD, MPH, and Kendra Moldenhauer, RN, BSN
EMERGENCY MEDICAL TREATMENT AND LABOR ACT (EMTALA)
1. What is EMTALA?
In 1986, Congress enacted EMTALA as part of the Consolidated Omnibus Reconciliation Act
(COBRA) to ensure public access to emergency services regardless of ability to pay. The
intended purpose is to prevent the dumping of patients; that is, the inappropriate transfer or
discharge of uninsured patients in an unstable condition solely for the economic benefit of the
treating hospital. Put simply, EMTALA requires any hospital that participates in Medicare to do
a medical screening examination (MSE) on any patient requesting medical evaluation for an
emergency medical condition (EMC), without regard for the patient’s ability to pay for services
rendered. If such a condition is found to exist, the hospital and the treating physician must
use all of the resources normally available to them in stabilizing the emergency medical
condition before that patient can be discharged or transferred to another facility. Because
more than 98% of hospitals in the United States participate in Medicare, the influence of
EMTALA on emergency medical care is far reaching. Failure to comply with its provisions
can mean criminal sanctions, stiff financial penalties, and exclusion from participating in
governmental programs such as Medicare and Medicaid.
2. Define emergency medical condition.
Any medical condition (including psychiatric disturbances or symptoms of substance abuse)
that without immediate medical attention might result in the patient’s loss of life; a serious
impairment of bodily function; serious dysfunction of any body organ or part; severe pain; or,
in the case of a woman in active labor, the death or disability of the woman or unborn child.
3. Why does such a statute even exist?
Access to medical care in the United States has never been defined as a fundamental right.
For much of the 20th century, private hospitals were under no obligation to offer emergency
care to the uninsured. Consequently, indigent or undesirable patients were often denied such
care and forced either to seek care elsewhere or go without any assistance whatsoever. By the
mid-20th century, a two-tiered emergency health care system existed in which the properly
insured received better care than the poor. To mitigate the situation, in 1946 Congress enacted
the Hill Burton Act requiring any hospital receiving federal funds for construction or other
expenses to open its doors to all people residing within its territorial area. The statute lacked
any real means of enforcement leading to poor compliance.
Over the course of the 1960s and 1970s, the number of civil legal actions taken against
hospitals that denied emergent medical treatment to indigent patients grew dramatically. As a
result, important legal theories emerged as to how and why hospitals could be held liable for
withholding medical care. Essentially, these theories held that any hospital presenting itself as
a place offering emergency care must provide that service competently and in a timely fashion
to anyone in the public who relied on such advertisement in seeking emergent treatment
during a time of need. Paralleling this development was the evolving concept that any hospital
receiving public moneys through such programs as Medicare and Medicaid reimbursement in
Chapter 100 EMTALA, JC, AND HIPAA 691
turn held a duty to serve all sectors of the public equally. Ultimately, these concepts
culminated in the 1986 enactment of EMTALA. Many amendments over the years have
sharpened the focus and increased both the scope and the enforcement powers of the statute.
4. As a physician, can I personally be penalized for an EMTALA violation?
Yes. Most provisions of EMTALA apply to hospitals. A hospital that has more than 100 beds
may be fined up to $50 per violation (fewer than 100 beds may be fined up to $25,000).
However, there are a few provisions which apply to physicians. For example, if a physician
fails to respond to an emergency situation when he or she is assigned as the on-call
physician, a penalty may be imposed. A physician, who signs a certification in support of a
patient transfer, is liable if he or she knew or should have known, the certification was false.
5. Will my malpractice insurance cover me for an EMTALA violation?
Probably not. Malpractice insurers generally will not cover monetary sanctions imposed for an
infraction of the statute. As a result, the EMTALA penalties amount to a major out-of-pocket
expense for the practitioner. Another important difference is that EMTALA is not intended to
police standards of medical care per se, but rather to ensure that every patient is treated
equally without regard to ability to pay. The patient does not have to suffer damages or have a
poor outcome, nor does a practitioner have to commit negligence for a physician or a hospital
to be cited for an EMTALA violation. If a patient has a poor outcome from treatment and
alleges malpractice in the state courts, EMTALA is invoked only if it can be proven that the
care was substantially different from what the hospital would provide uniformly to any other
patient presenting with similar complaints and circumstances.
6. Does EMTALA apply when a patient in need presents to any part of a
hospital’s campus, even if it is not an ED?
Yes. If an individual presents anywhere on hospital property, an EMTALA obligation on the
part of the hospital may be triggered if the individual requests examination or treatment for
an emergency medical condition or if a prudent layperson would believe that the individual is
suffering from an emergency medical condition. The term hospital property means the entire
main hospital campus including the parking lot, sidewalk, and driveway or hospital
departments, including any buildings owned by the hospital that are within 250 yards of the
hospital. The patient must be moved to a dedicated ED within the hospital to receive an
appropriate MSE.
7. What is a dedicated ED?
A hospital location is defined as a dedicated ED if it meets any one of three criteria: (1) it is
licensed by the state to function as an ED, (2) it holds itself out to the public as a place
providing care for emergent medical conditions on an urgent basis without requiring a
previously scheduled appointment, or (3) if a representative sample of its patient population
seen over the previous year demonstrated that at least one third of all outpatient visits were
for urgent patient complaints that did not require a previously scheduled appointment.
8. Is a hospital still obligated under EMTALA to medically screen and stabilize
any patient presenting to an ambulance it owns and operates?
No. As long as the hospital-owned ambulance operates under community-wide EMS protocols
or EMS protocols mandated by state law that direct the ambulance to transport patients to the
closest appropriate facility.
9. How does EMTALA define a proper MSE?
An MSE is not an isolated event. It is an ongoing process, conducted by qualified medical
personnel, that typically begins with triage, but can involve a wide spectrum of actions ranging
from a brief history and physical examination to the performance of diagnostic studies and
Chapter 100 EMTALA, JC, AND HIPAA692
procedures and the evaluation by any on-call consultant normally available to the dedicated
ED. Triage helps to prioritize the order in which individuals will be seen by qualified medical
personnel. The MSE must be appropriate to the individuals presenting signs and symptoms,
as well as the capability and capacity of the hospital. The simple answer: the adequate
screening of a patient for an emergency medical condition using the resources normally
available to the hospital’s ED. But the complex reality is that those resources are stated to
include any laboratory studies; radiologic examinations such as computed tomography (CT),
magnetic resonance imaging (MRI), or angiography; and the services of any on-call consultant
normally available to the dedicated ED. Consequently, an adequate MSE can range from a
quick history and physical to confirm the presence of an upper respiratory tract infection to a
complex work-up involving multiple tests, diagnostic procedures, consultations from
specialists, and hospital admission for further evaluation and treatment.
10. Who can perform the MSE?
EMTALA states simply that “qualified medical personnel” (QMP) must perform the MSE. A
nurse or mid-level provider may perform the MSE if the hospital’s governing board sets forth
in the bylaws or hospital rules and regulations that they are qualified to perform screenings
for the hospital. The qualified medical personnel must have a job description for this role,
qualifications, competencies, and a formal designation to perform MSE in their personnel file.
11. When has the MSE been satisfactorily completed under EMTALA?
An individual is considered stabilized if the treating physician or designated QMP attending
to the individual in the ED has determined, with reasonable clinical confidence, that the
emergency medical condition has been resolved. Once the emergency medical condition is
resolved, the individual may be discharged home with follow-up care instructions, admitted
for ongoing care, or transferred to another facility. Psychiatric patients are considered stable
when they are protected and prevented from injuring or harming themselves or others.
EMTALA ceases to apply once the hospital admits an individual as an inpatient. Importantly,
that cessation applies to patients formally admitted to the hospital but who may be boarded in
the ED awaiting an inpatient bed.
12. Is it an EMTALA violation if the patient decides to leave against medical
advice before the MSE is complete?
It depends on when during the triage and evaluation process that the patient decides to refuse
care, and on his or her competency to do so. If, during the course of the MSE, a patient refuses
further evaluation and treatment after discussion of the potential risks of such a decision, the
patient is considered to have withdrawn the initial request for evaluation, and EMTALA no longer
applies. The burden of proof falls on the hospital and the treating physician, however, to
demonstrate that no coercion was used to dissuade the patient from consenting to further
treatment with suggestions or statements that the continued care could be prohibitively
expensive. Proper documentation is essential. The medical record should reflect that screening,
examination, or treatment were offered by the hospital prior to the patient’s refusal.
A more difficult situation arises when a patient is triaged to the waiting room and then
decides to leave before being formally evaluated in the ED. On the surface, this situation can
be interpreted as the patient withdrawing the initial request for medical evaluation. EMTALA
and the courts have focused considerable attention on the potential for inequity in triage
practices, with the uninsured or undesirable patient being subjected to long waiting times in
the hopes that he or she will simply leave. In such situations, the hospital must be able to
prove that no different standard of triage was used and that a reasonable effort was made to
call the patient back to the ED to address the initial complaint.
13. What is meant by transfer under EMTALA?
EMTALA does not simply deal with patient transfers and the transferring facilities. EMTALA
defines transfer as the movement of a patient away from the hospital, not simply as the act of
transporting a patient to another hospital. By this definition, even a patient sent home from the ED
Chapter 100 EMTALA, JC, AND HIPAA 693
is considered to have been transferred under the statute. If such a patient is subsequently found
to have been discharged in unstable condition, claim of an EMTALA violation could be made.
14. When does EMTALA say it’s OK to transfer a patient?
If a patient is deemed stable (i.e., an emergency medical condition is no longer present,
and no significant medical deterioration is likely during or after the transfer), a transfer can
proceed without the statute being applicable. EMTALA applies only to the transfer of unstable
patients. Unstable patients can be transferred under the following conditions.
n
The patient requests the transfer. In that case, an informed request for the transfer must
be signed by the patient, and it is important for the hospital and the treating physician to
document that a discussion of cost did not enter into the patient’s decision to ask for a
transfer.
n
An unstable patient needs to be moved because the initial facility lacks the capability or
the resources to treat the emergent condition adequately. This might occur when a multi-
trauma patient presents to a small rural ED and requires transfer to a Level I trauma center
to receive proper care. Similarly, a patient with a complicated hand injury who presents to
an ED with no hand specialist on call may need to be transferred to a facility capable of
providing that service. The expected benefits of the transfer outweigh the risks of the
transfer.
15. List the requirements for transferring an unstable patient.
n
A physician must certify that the benefits of the transfer outweigh the risks and that when
possible this has been discussed with the patient or responsible party.
n
Every effort shall be made to minimize the risk involved in the transfer in terms of proper
treatment before the patient’s departure.
n
The receiving facility has accepted the patient and has the capacity and capability to treat
the emergency medical condition.
n
The receiving facility has been provided with all medical records related to the emergency
condition that the patient presented.
n
The transfer is conducted with qualified personnel and proper transportation, including the
use of necessary and medically appropriate life support measures.
1. Physician certifies that benefits of transfer outweigh the risks.
2. Minimize risks prior to transfer.
3. The receiving facility has accepted the patient and has the capacity and capability to treat.
4. Medical records related to the emergency medical condition are copied and sent with the
patient (including diagnostic imaging).
5. The transfer is accomplished with qualified personnel and appropriate equipment.
KEY POINTS: REQUIREMENTS WHEN TRANSFERRING
AN UNSTABLE PATIENT
16. Can an on-call consultant refuse to see an unstable patient?
No. If an on-call physician fails or refuses to respond or come to the hospital in a timely
fashion (i.e., within a reasonable time under the circumstances or within the time frame
established by the hospital’s medical staff bylaws), the hospital and the on-call physician
may be in violation of EMTALA. If the on-call physician does not respond, the emergency
medicine physician treating the patient must decide at what point it is appropriate to transfer
the unstable patient to a facility with the capability of treating the emergent medical condition.
Chapter 100 EMTALA, JC, AND HIPAA694
In this circumstance, the emergency medicine physician transfers the patient without
personally violating EMTALA. Each hospital must have written policies and procedures in place
to respond to situations in which a particular specialty is not available or the on-call physician
does not respond, and the emergency physician must document the name and address of the
consultant who failed to treat the patient on the transfer form.
17. How is the hospital’s on-call list determined?
Hospitals have flexibility in determining on-call coverage for their hospitals. However, they
must ensure that they are providing sufficient on-call resources to meet the needs of their
community. Hospitals must maintain a list of physicians who are on call to stabilize an
individual with an emergency medical condition after the initial MSE. A hospital must have
written policies and procedures that clearly define the responsibilities of on-call physicians to
respond, examine, and treat patients with an emergency medical condition.
18. Can a hospital refuse to accept a transfer under EMTALA?
A receiving hospital cannot refuse an appropriate transfer from a referring hospital within the
boundaries of the United States if they have the capacity and capability to treat the patient.
19. If I receive an inappropriate transfer at my hospital, do I have an obligation to
report an EMTALA violation?
EMTALA states that any hospital that receives an inappropriate transfer must report the
suspected EMTALA violation within 72 hours or face penalties. This is, however, an obligation
of the hospital, not of an individual physician.
JOINT COMMISSION (JC)
20. What is JC?
The JC is an independent, not-for-profit organization that evaluates and accredits health care
organizations and programs. The JC origins date to 1917, when the American College of
Surgeons (ACS) developed the Minimum Standards for Hospitals in an effort to establish
basic national standards to be met by every hospital operating in the United States. The
following year the ACS began on-site inspections to ensure that hospitals met the minimum
requirements. Decades later, the ACS, the American College of Physicians (ACP), the American
Hospital Association (AHA), the American Medical Association (AMA), and the Canadian
Medical Association joined to create the Joint Commission on Accreditation of Hospitals
(JCAH) dedicated to further defining a set of standards recommended as essential to the safe
and effective delivery of health care by hospitals throughout the nation.
In 1965, Congress passed the Social Security Amendments that included a provision that
empowered JCAH by linking each hospital’s eligibility to participate in the Medicare program
with accreditation by JCAH. This authority allows private, national accreditation organizations
to deem that an organization is compliant with certain Medicare requirements. Over the years,
the standards changed to represent optimal achievable levels of quality, rather than minimum
essential levels of quality. As the scope of the organization expanded to include accreditation
of clinical laboratories, ambulatory care centers, home health networks, and managed care
organizations, the organization changed its name to the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) and, finally, to the JC on January 1, 2007. The JC’s mission
is to continuously improve health care for the public, in collaboration with other stakeholders,
by evaluating health care organizations and inspiring them to excel in providing safe and
effective care of the highest quality and value. Currently, the JC evaluates and accredits more
than 16,000 health care organizations and programs in the U.S.
21. What are the standards and performance measurements that the JC requires?
The JC collaborates with health care experts, research and quality organizations, providers,
performance improvement experts, purchasers and consumers to develop Hospital
Chapter 100 EMTALA, JC, AND HIPAA 695
Accreditation Standards that focus on an organization’s ability to provide safe and high quality
care in a safe environment. The Comprehensive Accreditation Manual has 17 chapters that
include standards and performance in such areas as emergency management, patient care,
medication management, infection prevention and control, the record of care, medical staff,
and the National Patient Safety Goals (NPSG).
The NPSG became effective in 2003, and were established to help organizations address
specific areas of concern in patient safety. The NPSG highlight problematic areas in health
care, and focus on system-wide solutions to improve safety and prevent adverse patient
outcomes. Annual review and update of the goals is overseen by an expert panel that has
hands-on experience addressing patient safety issues in a variety of health care settings. The
NPSG often relate to media-grabbing issues such as hospital-acquired infections, patient
suicide in a hospital, and wrong-site surgery. Examples of the NPSG include improving the
accuracy of patient identification using two patient identifiers to reliably match the patient to
the service or treatment provided; standardization of handoff communications (inadequate
communication is the leading cause of sentinel events); medication safety; and reducing
health-care–associated infections. The NPSG continue to evolve and require greater attention
and more resources. They are increasingly important for patient safety and are a critical focus
of the accreditation process.
22. How is compliance with the standards evaluated and enforced?
The JC conducts unannounced, on-site surveys that occur 18 to 39 months after the previous
unannounced survey. Surveyors are trained and certified in quality-related performance
improvement. Their responsibility is to evaluate the hospital’s performance and actual care
processes using the tracer methodology. The tracer methodology evaluates the patient
experience, using the patient’s record as a roadmap to move backwards from the patient’s
current hospital location to their point of access into the hospital. In addition to observing and
evaluating the direct care provided to patients, the surveyors scrutinize operational systems
that cross all boundaries in the hospital and influence the safety and quality of patient care.
Chart review; interviews with staff, patients and families; observation of the processes of care,
compliance with the NPSG, and system tracers are central features of the site survey.
To earn and maintain JC accreditation, a hospital must maintain continuous compliance
with the JC requirements. In the current, complex health care environment, hospitals are
required to meet a variety of accrediting, regulatory, and licensing requirements. The burden
is significant and requires organizational commitment. Whenever feasible, hospitals should
embed best practice into daily work to ensure compliance; and in an effort to improve
operational systems, standard work, computerized provider order entry, hand-held personal
digital assistants, bar-coded patient bracelets, smart monitors, computerized decision support
and electronic medical records are tools that should be considered to promote patient safety
and quality of care.
23. What is a sentinel event?
A sentinel event is defined by the JC as “an unexpected occurrence involving death or serious
physical or psychological injury or the risk thereof.” A sentinel event requires immediate
attention, investigation, and response. Not all sentinel events occur as a result of a medical
error. An appropriate response to sentinel event is to conduct a timely, credible, and thorough
Root Cause Analysis (RCA). An RCA is a process defined by the organization that facilitates
the evaluation and identification of the fundamental reason for variation in performance
leading to occurrence and sentinel event. The outcome of an RCA should be an action plan
designed to implement improvements and reduce risk.
24. How do the JC standards influence the practice of emergency medicine?
As the pressures of increasing patient volume, overcrowding, patient boarding, increasing
complexity and limited resources mount, so do the challenges to maintain safe, high-quality
patient care in the ED setting. More than 50% of the standards relate directly to patient safety,
Chapter 100 EMTALA, JC, AND HIPAA696
making the Joint Commission standards relevant to the ED. Assessment and treatment of
pain, emergency preparedness, infection control and prevention, safe medication use,
conscious sedation, monitoring restraint use, patient rights, staffing, staff competency, ED
security, cultural and linguistic diversity, and standardized hand offs are all areas of focus for
the Joint Commission in the ED.
Additionally, there is an expectation that the record of care (patient chart) functions as both a
historical record of a patient’s episode of care, and a method of communication between care
providers. The record needs to tell the story in order to aid in clinical decision making. Since
2005, in keeping with current challenges in health care, there is a Leadership standard that
focuses on patient flow and overcrowding in the ED. The JC requires that hospital leadership
manage patient flow throughout the hospital to minimize ED overcrowding and minimize delays
in care delivery. Leadership must plan, measure, and guide processes to improve patient flow
processes and must have plans in place to care for admitted patients in the ED.
HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)
25. What is HIPAA?
HIPAA is the Privacy Rule. Enacted by Congress in 1996, HIPAA was designed to protect
individuals from the unauthorized or inappropriate use of their personal health information.
The act’s privacy regulations went into full force on April 14, 2004. HIPAA applies to all
Covered Entities, public or private, that create, store, or transmit health information pertaining
to specific individuals. This includes information in oral, written, or electronic form. HIPAA not
only details when and how personal health data may be accessed and shared but also
delineates standard transaction formats and data code sets that must be used in transferring
such information.
26. Where did the Privacy Rule come from?
The U.S. Department of Health and Human Services (HHS) issued the Privacy Rule to
implement the requirement of the Health Insurance Portability and Accountability Act of 1996.
Congress had 3 years to enact privacy legislation and when this time passed HHS developed
the Privacy Rule that was published in late 2000. The idea of the Privacy Rule is to have
patients’ medical records protected from anyone who doesn’t have consent to review those
records. This is coupled with allowing the information to flow between individuals or
institutions charged with the patient’s care. The Office for Civil Rights (OCR) is responsible for
implementing and enforcing the Privacy Rule. In the 23-page paper published by OCR, titled
“Summary of the HIPAA Privacy Rule,” the OCR clearly states that “This is a summary of key
elements of the Privacy Rule and not a complete or comprehensive guide to compliance.
Entities regulated by the Rule are obligated to comply with all of its applicable requirements
and should not rely on this summary as a source of legal information or advice.”
27. What prompted the enactment of such a statute?
Patient privacy and the confidentiality of the physician-patient relationship have been recognized
as fundamental ethical and moral obligations in medicine since the time of Hippocrates. With the
rise of informatics and the evolution of medical care, individual patient information is now often
shared among numerous practitioners, quality assurance auditors, billing coders, and third-party
payers. As a result, the potential for unauthorized or inappropriate access to patients’ personal
information has escalated exponentially. HIPAA is intended to delineate the manner in which
personal health data can be accessed, by whom, and for what reason.
28. What is protected health information (PHI)?
PHI is all information pertaining to an individual’s medical or psychiatric status, treatment, or
payment for health-related services. PHI is linked to specific patients by individually
identifiable health information, which HIPAA defines as the person’s name; specific contact
Chapter 100 EMTALA, JC, AND HIPAA 697
information; place of residence by geographic subdivision smaller than the state; Social
Security, medical record, or specific account numbers; photographs; biometric identifiers such
as finger prints or voice recognition; or any other unique identifier characteristic or code.
29. What is the difference between the use and the disclosure of PHI?
HIPAA defines use of PHI as the sharing, employment, application, utilization, examination, or
analysis of PHI within the Covered Entity that maintains the PHI. In general, use of PHI within
the Covered Entity for treatment, payment, and normal health care operations without the
individual’s consent is permissible under HIPAA. The sharing of PHI among physicians,
nurses, or other health care providers involved in the direct care of a patient is considered use
and is not restricted under HIPAA. Disclosure is the release of PHI to entities outside of the
Covered Entity, such as the press, law enforcement, or marketers. PHI disclosure is much
more restricted under HIPAA.
30. According to HIPAA, when is it okay to disclose PHI?
PHI may be disclosed under the following circumstances: with the individual’s written consent
or for 12 national priority purposes. These include required by law; public health activities;
victims of abuse neglect or domestic violence; health oversight activities; judicial and
administrative proceedings; law enforcement purposes, (which is limited to six specified
conditions); and decedents; cadaveric organ, eye, or tissue donation; research; serious threat
to health or safety; essential government functions; and lastly workers’ compensation.
31. How is the statute enforced, and what are the penalties for a HIPAA violation?
The Office of Civil Rights oversees enforcement of HIPAA privacy standards. Individuals may
lodge HIPAA grievances with the Covered Entity or the federal government. Penalties for an
established violation include potential monetary fines and jail sentences for the offender(s).
Inadvertent violations carry a $100 fine, not to exceed $25,000 per year. If the violation
occurred with the knowledge of the offender, punishment can include fines up to $50,000 and
up to 1 year in prison. If the violation was committed knowingly and with false pretenses,
potential penalties include fines up to $100,000 and a maximum of 5 years in prison. Violation
with the intent to sell or profit from PHI disclosure carries a fine of up to $250,000 and up to
10 years in prison.
32. What steps should be taken to prevent disclosure of PHI in the ED?
Maintaining patient privacy is problematic in a busy, crowded ED. Patients and visitors often
overhear discussions pertaining to individuals unknown to them in the normal operation of the
department. Such inadvertent disclosures are permissible under HIPAA, provided that the
department has taken steps in good faith to minimize the likelihood of their occurrence.
Examples of such measures include conducting patient interviews and examinations in
individual examining rooms when possible; posting signs reminding staff members of the
importance of maintaining patient privacy; removing easily identifiable patient information on
chalk boards, computer screens, and x-ray view boxes from open view; and documenting staff
training with regard to HIPAA issues.
1. Perform interviews and examinations in private areas whenever possible.
2. Remove patient identifiers from highly visible areas.
3. Document staff training with regard to HIPAA requirements.
KEY POINTS: BASIC HIPAA COMPLIANCE IN THE ED