HIPAA Rules

M. A. DePompolo Products Investigations

MEMORANDUM

TO: Clients

FROM: Michael DePompolo

DATE: December 12, 2013

RE: HIPAA; Incident Scene Covered Parties

_____________________________________________________

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 provisions, requires the establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers. The Administrative Simplification provisions also address the security and privacy of health data which is the area at issue regarding communications with law enforcement, emergency rescue and victim transport personnel.

Although other ethical considerations might apply, police officers, firefighters and first responders that assist at incident scenes are generally not covered entities under HIPAA. The reason for this is that law enforcement and rescue personnel at an incident scene generally do not charge the patient for medical services rendered. HIPAA applies when a patient is charged for medical services⁽¹⁾ by a health care provider.

Ambulance attendants and medics involved in transporting an individual to a medical facility are covered entities. The function of transport generates a fee for a covered transaction⁽²⁾ with the victim or their insurance. Therefore, the medical services ambulance personnel perform from preparing a victim at a scene for transport through delivery to a medical facility is protected data under the Administrative Simplification provisions.

A gray area would be for instance, an ambulance crew that is short-handed and tells a fire department first responder at the scene to “jump in” the back of the ambulance to assist in transport. That fire department first responder probably does not generate a third party financial transaction with the patient. Nevertheless, this would be an example of a situation where an informal interview would not be recommended with that first responder without a signed medical authorization releasing that person to address medical issues.

From http://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/downloads/coveredentitycharts.pdf the two principle questions to determine covered entities are:

Does the person, business, or agency furnish, bill or receive payment for health care in the normal course of business?

AND

Does the person, business or agency transmit (send) any covered transactions electronically?

(1.) Health care means: care, services, or supplies related to the health of an individual. It includes, but is not limited to, the following: (1) Preventive, diagnostic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual or that affects the structure or function of the body; and (2) Sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription. See 45 C.F.R.160.103.

Medical care means: amounts paid for: (A) diagnosis, cure, mitigation, treatment or prevention of disease, or amounts paid for the purpose of affecting any structure or function of the body; (B) amounts paid for transportation primarily for and essential to medical care referred to in (A); and (C) amounts paid for insurance covering medical care referred to in (A) and (B). See 42 U.S.C. 300gg-91(a) (2).

(2.) Covered transactions are transactions for which the Secretary has adopted standards; the standards are at 45 C.F.R. Part 162. If a healthcare provider uses another entity (such as a clearinghouse) to conduct covered transactions in electronic form on its behalf, the health care provider is considered to be conducting the transaction in electronic form. A transaction is a covered transaction if it meets the regulatory definition for the type of transaction. These definitions for each type of covered transaction are provided below:

45 C.F.R.162.1101: Health care claims or equivalent encounter information transaction is either of the following:

(a) A request to obtain payment, and necessary accompanying information, from a health care provider to a health plan, for health care.

(b) If there is no direct claim, because the reimbursement contract is based on a mechanism other than charges or reimbursement rates for specific services, the transaction is the transmission of encounter information for the purpose of reporting health care.

45 C.F.R.162.1201: The eligibility for a health plan transaction is the transmission of either of the following:

(a) An inquiry from a health care provider to a health plan or from one health plan to another health plan, to obtain any of the following information about a benefit plan for an enrollee:

(1) Eligibility to receive health care under the health plan.

(2) Coverage of health care under the health plan.

(3) Benefits associated with the benefit plan.

(b) A response from a health plan to a health care provider's (or another health plan's) inquiry described in paragraph (a) of this section.

45 C.F.R.162.1301: The referral certification and authorization transaction is any of the following transmissions:

(a) A request for the review of health care to obtain an authorization for the health care.

(b) A request to obtain authorization for referring an individual to another health care provider.

45 C.F.R.162.1401: A health care claim status transaction is the transmission of either of the following:

(a) An inquiry to determine the status of a health care claim.

(b) A response about the status of a health care claim.

45 C.F.R.162.1501: The enrollment and disenrollment in a health plan transaction is the transmission of subscriber enrollment information to a health

plan to establish or terminate insurance coverage.

45 C.F.R.162.1601: The health care payment and remittance advice transaction is the transmission of either of the following for health care:

(a) The transmission of any of the following from a health plan to a health care provider's financial institution:

(1) Payment.

(2) Information about the transfer of funds.

(3) Payment processing information.

(b) The transmission of either of the following from a health plan to a health care provider:

(1) Explanation of benefits.

(2) Remittance advice.

45 C.F.R.162.1701: The health plan premium payment transaction is the transmission of any of the following from the entity that is arranging for the provision of health care or is providing health care coverage payments for an individual to a health plan:

(a) Payment.

(b) Information about the transfer of funds.

(d) Payment processing information to transmit health care premium payments including any of the following:

(1) Payroll deductions.

(2) Other group premium payments.

(3) Associated group premium payment information.

45 C.F.R.162.1801: The coordination of benefits transaction is the transmission from any entity to a health plan for the purpose of determining the relative payment responsibilities of the health plan, of either of the following for health care:

(a) Claims.

(b) Payment information.

In electronic form means: using electronic media, electronic storage media including memory devices in computers (hard drives) and any removable/transportable digital memory medium, such as magnetic tape or disk, optical disk, or digital memory card; or transmission media used to exchange information already in electronic storage media. Transmission media include, for example, the internet (wide-open), extranet (using internet technology to link a business with information accessible only to collaborating parties), leased lines, dial-up lines, private networks, and the physical movement of removable/transportable electronic storage media. Certain transmissions, including of paper, via facsimile, and of voice, via telephone, are not considered to be transmissions via electronic media, because the information being exchanged did not exist in electronic form before the transmission.