Avoiding the Wall of Shame: Identify PHI

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Photo by Unhindered by Talent

In one of our previous posts, we referenced the “wall of shame” maintained by the U.S. Dept of Health and Human Services, which lists organizations who reported lost, stolen, or improperly disclosed patient records.

What can you do to protect your organization from inadvertently screwing up like this, and making it onto this lineup?

First, know what is worth protecting. In reference to “wall of shame” avoidance, you need to know what constitutes Protected Health Information, or PHI.

What is PHI

PHI, as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), means any information recorded in any form/medium (or shared orally) that meets both of the following criteria:

  • Is created or received by a health care provider, health plan, employer, or health care  clearinghouse; and
  • Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and
    • That identifies the individual; or
    • With respect to which there is a reasonable  basis to believe the information can be used to  identify the individual.

So, depending upon what service your organization provides, and even possibly where you are located, what you need to protect will vary.

Location, Location, Location

Why would location matter? Take, for example, one of our clients who provide healthcare services to individuals with HIV or AIDS in a dense urban setting where tens of thousands of people live within a single ZIP Code. Inadvertent disclosure of just a five digit ZIP Code from this dense urban area would not alone constitute a HIPAA breach.

Take a similar provider providing HIV/AIDS services in a sparsely populated, rural region, and all bets are off. ZIP code alone might be enough to identify that person.

Not sure what to protect? Contact us.

Wall of Shame

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Wall of Shame
(Photo by Sarah G...)

Since 2009, almost 21 million patients have had their medical records stolen, unlawfully disclosed, or just lost, according to the Office for Civil Rights (OCR) of the U.S. Dept of Health and Human Services (HHS). The result is a “wall of shame” (and possible fines) for these healthcare organizations — a wall your organization should avoid getting posted on at all costs.

The wall is a by-product of the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 — part of the umbrella of the American Recovery and Reinvestment Act (ARRA). HITECH fulfills a promise made by President Obama with the goal of modernizing portions of the American healthcare system.

During a speech at George Mason University, President Obama said:

“To improve the quality of our health care while lowering its costs, we will make the immediate investments necessary to ensure that, within five years, all of America’s medical records are computerized. This will cut waste, eliminate red tape and reduce the need to repeat expensive medical tests…But it just won’t save billions of dollars and thousands of jobs; it will save lives by reducing the deadly but preventable medical errors that pervade our health-care system.”

There are a number of carrot and stick incentives inside HITECH to encourage rapid adoption of Electronic Health Records (EHR) by hospitals. Due to these incentives, the Congressional Budget Office (CBO) has increased its projected EHR adoption rate from 65% to an estimated 90% among physicians by the year 2019. This increased projection estimate is a direct result of HITECH.

EHR is a fantastic idea, but as with most things digital, ease of use/access within EHRs means that electronic health record information can also be easily copied, stolen or disclosed in an unauthorized manner. So provisions are needed to protect the privacy and security of patient information.

HITECH addresses some of this by giving HHS some enforcement teeth. Via section 13402 of the Act, HHS is required to issue regulations (and possible fines) for breach notification by entities subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and their business associates. Via section 13402(e)(4) of HITECH, the HHS Secretary must post a list of breaches of unsecured protected health information affecting 500 or more individuals. So, 21 million breaches may be a conservative estimate.

How can you avoid getting your organization on the “wall of shame”? Stay tuned here for a future follow-up with suggestions, or contact us for more information.