HIPAA — Are Healthcare Providers doing their own Version of Captain America’s 70 year “Sleep?”

 

hipaa-complaint

     One of my favorite of the recent spate of Marvel superhero movies is “Captain America: The First Avenger”.  In that movie, Captain America fights Red Skull to protect earth from utter destruction.  One scene near the end of the movie actually makes me think of HIPAA.  Captain America awakens in a 1940s-style hospital room. Deducing from an outdated radio broadcast that something is wrong, he flees outside and finds himself in present-day Times Square, where S.H.I.E.L.D.  Director Nick Fury informs him that he has been “asleep” for nearly 70 years.
     When we discuss HIPAA with healthcare providers, we find that many simply do not take it very seriously.  The “teeth” of HIPAA regulations seem not to have been vigorously enforced in the past, leading many providers to believe there is little reason to worry about the details, thinking it was all bark, but no bite. As time has gone by, while some physicians and groups have tried to stay updated and compliant, many have taken no steps whatsoever, actually creating more chaos.  For example, when we first moved back to Missouri a few years ago, my wife took our kids to the doctor for the first time, and she was asked to fill out one form and put all the kids’ names on it, so that the practice could request their records from Michigan.  When the Michigan office got the form they then informed my wife that she had to fill out a form for each child to request records.  However, our new Missouri doctor said that the Michigan office was just being “overly cautious,” and that the one form should have been all that they needed.  We finally got the kids records, but it was rather difficult when one practice took HIPAA seriously and the next office did not.
     Within the last few years or so, the Department of Health and Human Services seems to be putting much more emphasis on the “bite” of HIPAA, and essentially to try to wake up those ignoring the HIPAA legislation from their Captain America “sleep”.  In 2014, HHS started conducting audits to find out whether covered entities were complying with the law.  The audits found that only 2-5% of those audited were actually in full compliance with HIPAA.  After this report, the Office of Inspector General (OIG) recommended that HHS begin implementing a permanent audit program to ensure compliance with HIPAA.  The enforcement efforts of these two agencies are effectively waking up many who are covered by HIPAA from their Captain America “sleep”, but just like in the movie, that awaking is not a relaxed, easing out of bed, but a cold slap-in-the-face type of awaking.
     As the enforcement efforts expand, HHS began another round of audits this year, and will actually be increasing the number of audits that will be conducted. Several covered entities have received notification that they are among the first round to be audited.  As random audits take place, every doctor, group, hospital, clinic, and other covered entities required to comply with HIPAA must awaken from their Captain America “sleep” as well, or they could face massive fines being imposed upon them for non-compliance.
     When we speak with doctors about HIPAA, most tell us that the law is simply an annoyance with which they would prefer not to hassle.  When we explain our detailed system for providing complete HIPAA compliance protection, many simply rely upon the fact that they “have never been audited before”, so they assume that they’re safe and won’t ever be audited. We point out that, just as it is too late to buy malpractice insurance after one has been sued, it likewise makes no sense to take chances on HIPAA compliance by waiting to see what happens.  The “sleep” from which they may awaken the day an auditor shows up in their office will be a harsh and sudden, and far too late to prepare for what might come from the audit being conducted. Likewise, many also seem to believe that if they are audited, they are either already compliant enough, or that any fine assessed against them will not be significant. That belief tends to ignore the very statistics (noted above) regarding how few providers have actually been found to be in compliance through the audits already conducted.
     While the details of HIPAA law are rather complex, it is pretty straight-forward about some of the basics — what it is you need to have and need to do — to comply with HIPAA.  You must have a HIPAA policy and procedure manual specific to your practice (so those who buy generic “manuals” on the internet are still asleep, as those simply do not constitute full compliance).  You must fully train every person on your staff on those policies and procedures at least twice a year (and you can’t “sleep” through this process with a short pamphlet for the staff to read). Likewise, you must conduct a thorough risk analysis at least twice a year to look for vulnerabilities and make sure you’re staying in compliance. Given that this is the hardest part of HIPAA compliance generally, one can see why physicians haven’t “awaken” to this part of the process.
     Those who are subject to HIPAA laws need to continually monitor the ever-changing regulations to stay aware of any updates or revisions that need to be made to their manual, training materials, and the type of risk analysis to be conducted.  There is a lot to do to stay in full compliance and it is clearly time for physicians and healthcare entities to wake from their sleep in order to be ready. Otherwise, that awakening will seem much like it did for Captain America, with a shock-to-the-system type of reaction the day the auditors appear.
#confidential #dentist #doctors #HIPAA #liability #medical practice #medical records #patient’s privacy

 

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To Shovel or Not to Shovel, that is the Question

As you head out into the frigid temperatures to shovel the snow or throw salt on your driveway or sidewalk, you might consider your options.  According to Missouri law, homeowners do not have an automatic duty to remove the snow and ice. But before you throw away your snow shovel, you should know that there are at least three exceptions or situations by which you may have the responsibility to remove snow and ice.

http://www.dreamstime.com/stock-photography-accidents-icy-roads-image290640321. If the snow or ice is unnatural or something not found in the community generally, then you may have a duty to remove it. For example, if a pipe bursts and ice accumulates on your sidewalk, more than likely you are responsible for removing or correcting the hazard. If on the other hand, the snow or ice was formed by the forces of nature you may have no particular responsibility to do anything.

2. If a contractual obligation of some type exists, then you may have a duty to clear ice or snow. For example, some contracts or agreements, like a lease or subdivision restrictions, require you to maintain your sidewalk, driveway, etc., and often include the removal of snow or ice. Therefore, you should carefully review these documents to see if you have any defined responsibility to clear the wintery debris.  In some instances, homeowners may have a duty to their local municipality to clear their sidewalks.  However, the obligation to the municipality is often related to fallen tree limbs, trash, or other obstacles on walkways.  Local ordinances will articulate any such obligation, and you should make sure you are aware of the law in your area.

3. The most common situation that leads to responsibility to adequately clear snow and ice is when the homeowner voluntarily accepts the duty by removing snow and ice. Once you undertake the task of removing heaps of snow or throw salt around, you then establish a duty to exercise “reasonable” care in doing so. What is reasonable? Good question. Some case law suggests that if you clear off one small area of your sidewalk or steps, you may now be responsible for all of the snow or ice covered areas on your property. Even worse, you may be required to shovel more snow and/or throw more salt if, after you clear the walkway, more snow or ice accumulates. The idea is that if a walkway is in its “natural” condition, pedestrians will know to be careful. But, if the walkway appears to be cleared of the icy accumulation, the pedestrians will let their guard down and have a reasonable expectation that the area should be free of a dangerous condition.

So when you have braved the elements to clear your driveway or walkway, but then the pizza guy or overnight delivery driver slips and falls, you may still find yourself responsible for his or her injuries. There are various issues involved. Did you completely clear a reasonable pathway for pedestrians? Did the pedestrian use the pathway you cleared? Despite your efforts, did more snow or ice accumulate since you last shoveled and threw the salt? If there was more accumulation or you missed a spot, should any pedestrians have seen the slippery spot and therefore have used more caution themselves while walking in the wintery elements? There are too many variables to give a precise answer that applies to each case regarding whether you as the homeowner will be found liable for the delivery person’s injuries. Needless to say, winter weather provides not only a slippery surface upon which to walk, but a slippery slope of legal issues.

For a discussion about whether a commercial property owner or lessee has a responsibility to clear snow or throw salt on the sidewalk and parking lot in front of their business, see our next blog.

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The choice of a lawyer is an important decision and should not be based solely upon advertisements.

#snow  #homeowners insurance  #liability #Missouri Law

ANOTHER BENEFIT OF CARRYING AUTO INSURANCE

       Missouri House Bill 339 This past week, the Missouri Legislature voted to override Governor Jay Nixon’s veto of House Bill 339. That bill, euphemistically categorized as “no pay, no play” legislation, effectively limits the damages an injured driver could claim in an accident if that driver himself was uninsured, even when the accident was the fault of the other driver. Specifically, the injured uninsured driver could seek only his “economic” damages (medical expenses, property damages, wage losses) in a claim or suit against the other insured driver who caused the accident, but would be barred from seeking “non-economic damages (pain and suffering, etc.). This limitation would not apply to passengers in the uninsured driver’s car, to drivers whose insurance coverage was simply non-renewed within the past six months, nor in cases where the driver causing the accident was under the influence of drugs or alcohol, or is convicted of manslaughter or assault as a result of the accident.

          HB 339 will now go into effect on October 11, 2013. Opponents argue that it is designed to benefit insurance companies, which normally pay the damages assessed in litigation against the drivers they insure. For example, if ABC Insurance Company insures a driver who injures another uninsured driver, it will only be exposed to pay the uninsured driver’s medical bills and automobile damages, but not any claim for disfigurement, scarring, emotional injuries, etc.. This bill effectively limits their financial exposure substantially. Moreover, the bill essentially encourages Missouri drivers to procure liability insurance, so that they don’t find themselves limited in the claims they may make. That also, it is argued, benefits insurance companies who will now sell more insurance. Conversely, bill proponents argue that it should encourage more Missourians to comply with existing law requiring all drivers to have insurance, and will put otherwise uninsured drivers in the position of being able to provide financial responsibility to injured persons when they are the at-fault driver.

          In vetoing the legislation back in July, Governor Nixon called the legislation’s language “ambiguous” and stated that it insufficiently defined who actually met the definition of “uninsured”. This law will ultimately face legal challenges over its language and constitutional appropriateness. It is unclear how the appellate courts will interpret this law, but an on-going fight is a certainty. If nothing else, however, the passage of this law over Governor Nixon’s veto should illustrate the benefit of carrying automobile insurance in general and actually may encourage some otherwise uninsured drivers to “get covered”.

#Missourihousebill339;  #uninsureddrivers;  #Missourilegislature;  #Missouriveto;  #GovernorJayNixon

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.