AGING AND DISABILITY SERVICES ADMINISTRATION
March 26, 2003
ADSA: BH #2003-006
PRIVACY RULE PROVISIONS IN THE HEALTH INSURANCE
PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA)
Dear Boarding Home Provider:
In recent months, questions around access to residents, their records and resident representatives have arisen in response to the Privacy Rule provisions in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Privacy Rule becomes effective in April 2003.
The purpose of this letter is to inform you that the Administration on Aging (AOA) of the U.S. Department of Health and Human Services (DHHS), and the Office of Civil Rights (ORC), which has the responsibility for implementation and enforcement of the Privacy Rule, have determined that the HIPPA Privacy Rule does not conflict with the Long-Term Care Ombudsman's authority under federal and state law to access residents, their records, and their representatives.
The Privacy Rule permits the release of individually identifiable health information only with: (a) the authorization of the individual (e.g. the resident or patient); or (b) the authorization of the individual's personal representative (the same as the resident's representative); or (c) in certain exceptions. 45 CFR 164.508 and .512. One of the exceptions to the Privacy Rule is that individual's confidential records can be released without their authorization to "health oversight agencies." The DHHS Office for Civil Rights and the DHHS Administration on Aging has determined that the Long-Term Care Ombudsman Program is a "health oversight agency". This is because the ombudsman acts under authority of state and federal law to provide oversight for a part of the health care system, long-term care facilities that are covered entities. In Washington State, the LTCOP operates through a contract with the Department of Community and Economic Development.
What this means practically
Access to Residents: Please remember that at all times a resident has the
right to have access to and unrestricted, private visits from the ombudsman.
Access to Resident Records: The ombudsman has access to the resident's confidential records, including health care records, under the following conditions:
- With consent from the resident or the resident's representative, or
- If the resident is incompetent and has no representative, or
- If the resident's representative refuses to give access, the ombudsman believes refusal is not in the resident's best interest, and the State Ombudsman authorizes access.
Access to Resident Representatives: If the resident is incompetent or mentally incapacitated, then the resident must have a resident representative. When requested, the ombudsman must be given the contact information regarding the resident's representative.
Access to Family Member (who is not the resident's representative): If the ombudsman wants to speak with a family member about a health care matter and the resident is competent, the ombudsman should get the contact information from the resident. If the ombudsman wants to contact the family members of many residents about matters concerning a family council for the facility (a separate duty of the ombudsman), the contact information should be provided to the ombudsman.
Access to Facility Policies: The ombudsman has the right to access and copy facility records and policies that the residents and general public have access to review or copy. (WAC 365-18-100(5)(b)) This would include such documents as marketing materials, disclosure statements and charges, admission agreements, facility rules, etc.
Enclosed with this letter are copies of the portions of the relevant state regulations related to the Long-Term Care ombudsman's duties and access to residents. If you have questions, would like the full text of the state regulations or the federal memo regarding the Privacy Rule and the role of the Ombudsman, the State Long-Term Care Ombudsman's office can be contacted. Their number is 1-800-562-6028.
Sincerely,
Patricia K. Lashway, Director
Residential Care Services
Enclosure (WAC 365-18-100)
