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Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Journalists throughout the nation, talk about the problems that the new medical disclosure regulations are creating for journalists. Pro football/baseball teams worry about releasing injury information, hospital florists cannot put names on flowers for delivery, and hospital information desks don't know what to say when somebody calls asking if a loved one is at the hospital. Doctors can't use the old sign-in sheets they once used at their front desk. Hospitals cannot even tell law enforcement if someone is in the hospital.
These are the kinds of concerns that one would expect about these new rules. Yet, there is another even newer area!
--- Sex Offenders ---
We recognize that the issue of a "Sex Offenders' Medical / Psychological Privacy Rights" has not been directly addressed as such under HIPAA.
However, recognizing that, does not mean that "Sex Offenders" should not be entitled to, at least, the same protections of HIPAA as is everyone else in society.
Further, there are issues about sex offenders that cross the line between, criminal and medical issues, and these are our focus; the uncharted areas!
The ultimate goal of HIPAA, by virtue of the law itself, is to prevent IMPROPER "access to" and/or "disclosure of" a person's medical / psychological information!
Accordingly, every issue must first be viewed as a "access or disclosure" issue.
HIPAA defines -by process of elimination- who are the covered entities, meaning, who must comply with HIPAA.
Covered entities: 1)Health plans; 2)Health care clearinghouses; 3)Health care providers who conduct certain financial and administrative transactions electronically.
These entities (collectively called “covered entities”) are bound by the new privacy standards even if they contract with others (called “business associates”) to perform some of their essential functions.
Health Care Clearinghouses: Clearinghouses are public or private entities that process or facilitate the processing of nonstandard data elements of health information into standard data elements. These basically take medical information (store it for later retrieval, use it to make payments or other accounting, etc.) and pass it along to another business with approvals.
However, limiting who must comply with HIPAA defeats the ultimate privacy goals of HIPAA, and may permit improper accesses or disclosures; an uncharted area!
Accordingly, reviewing the covered entities, generally speaking, medical / psychological information is protected from its point-of-origin through today, whenever that is. At least that is the goal of HIPAA!
Before we bring this into perspective as to sex offenders, let us say this, from now on we are moving into the the uncharted areas we have mentioned before.
The "State (including the Federal Gov't, and lower jurisdictions i.e., law enforcement agencies)" stands in a unique position, when it is functioning as a entity with folks in-custody (i.e., inmates, in jails, on parole, on probation, on supervised release).
It functions as a covered-entity of each kind defined under HIPAA at different times. It must provide health care for in-custody folks (inmates and some psychological programs for folks in society). Then it performs as a health plan (by paying for the services) and a health care clearinghouse by inter-agency transfers of information that has been gathered. (ex: a sex offender is order to take sex offender therapy while in prison. The parole board requires that therapy report to make its decision on parole. Then if paroled, community supervision is given access to the parolees compete file. Will HIPAA now require releases signed to permit the various agencies access?).
Therefore, determining whether "the state" is, was, or continues to be, OR, is not, a "covered entity" will need to be determined on a circumstance by circumstance, basis. When a question arises, as to "access or disclosure," one must review how the medical / psychological information was initially generated (point of origin) and follow it through to today, to determine whether HIPAA has been violated.
What are the unusual areas where HIPAA may come into play
with sex offenders??
HIPAA in Jails or Prisons:
When sex offenders are in prison they don't want other inmates knowing what their crime is. First there is the shame of it, secondly it causes a safety concern, in that, other inmates will often attack them or wish to do other things.
While we know there will never be any admission from a state that the following ever happens, we have heard from far too many inmates that it occurs on a regular basis. Guards have access to inmate files, whether they should or not, they do access them. Often when it is learned that an inmate's crime is a sex offense, the guards choose to exact their own form of vigilantism.
Sex offenders are then subjected to, legal/illegal, body searches, cell searches, frequent friskings, and then the worst, a guard will tell another inmate. When this happens the sex offender is placed in grave danger of attack from other inmates. One such story is told that resulted in the arsonist getting a 6 year sentence. In another case an inmate (Raymond William Maxwell) was killed by 3 inmates because he was a sex offender.
In prison systems, inmates are permitted to file grievances when something happens that violates rules or laws. HIPAA is certainly a protection for inmates (sex offenders), and when guards all of a sudden know what their crime is - the inmate can file a grievance. The fines for disclosures are hefty and now with HIPAA there may be more grievances filed by sex offenders.
HIPAA in the Community:
The first circumstance: the "Risk Assessment -Process-," where public agencies use criminal and mental health information to perform a risk assessment. The goal of the -process- being to determine the offender's "Likelihood of Re-Offense Factor" which is disclosed to the public on sex offender registries, or as part of a state's community notification of a sex offender moving into a community.
While it would appear that the "Likelihood of Re-Offense Factor" is a criminal justice factor and therefore not covered under HIPAA, it must be remembered that it is the product of a "Prediction-Scheme" that would release personal mental health characteristics about the offender, hence -in-our-belief-, covered by HIPAA protections against non-release.
Further, without a release form signed by the offender, these public agencies are not permitted under HIPAA to obtain mental health information to perform the risk assessment process. HIPAA began in April of 2003. Does HIPAA require signed releases for the state to obtain records for these risk assessment processes?
The second circumstance: inclusion in a "Sex Offender Registry," whether or not a risk assessment is being performed! Inclusion sends a public message that, each listed person, has a "Mental Abnormality" or a "Personality Disorder" which predisposes them to recidivate. i.e. releasing mental health information about the registrant.
HIPAA has not recognized that, by virtue of Sex Offender Registration laws, that certain sex offender medical information is being publically disclosed in violation of HIPAA protections!
Sex offenders are said to have a "Mental Abnormality" or a "Personality Disorder" or "Propensity" that causes them to recidivate. Clearly that falls into the realm of "Psychological" information which is protected by HIPAA.
Those terms were first applied to sex offenders by legislatures, which gave them definition in an attempt to keep sex offenders civilly confined beyond their criminal sentences, and as a basis to force sex offenders in society into sex offender registries! Allegedly, for the safety of the public.
While legislatures have based their findings on studies, showing sex offenders have a high rate of recidivism, many experts refute these studies as being misapplied and false, the facts are that, -OVERALL-, sex offenders DO NOT have a high rate of recidivism, that link to one of our pages, where we discuss how "recidivism rate" studies are being misconstrued, here we will stay focused on the HIPAA issue.
Now assuming arguendo, that sex offenders do have a mental condition (by whatever name) that causes them to recidivate, the question becomes, does the state violate HIPAA by disclosing that fact about sex offenders? An uncharted area!
HIPAA does permit disclosure of such a fact, ONLY IF IT IS A SERIOUS THREAT, and ONLY TO SPECIFIC PERSON/S that are at risk, and ONLY WHEN THAT PERSON COMPLETES A REQUEST FORM. Clearly that not be folks who live on the other side of the world, and other places where the sex offender is not!
The third circumstance: Sex offenders are no less human than other folks, and sometimes they end up Hospitalized until well enough to return home. Remember, the hospital is not going to release anything to anyone without some form of HIPAA release (written or oral), even family members.
All the normal medical psychological protections are not the issue here, however, there are two circumstances that may cause concern for the hospitalized sex offender.
1) If the offender is on parole, probation, supervised release or other form of community supervision by the state. The agent in charge of the offender's release program, is prohibited from obtaining information (from the hospital) about the hospitalization of the sex offender -even his/her name- without the sex offender's written consent. Hefty HIPAA fines govern hospital decisions! The offender will be somehow responsible for contacting their supervising agent!
2) If the offender is not under any form of community supervision, the offender must still deal with being a registered sex offender and all that entails in their state of residency. Now the only time we see a possible concern is, if law enforcement came to your home expecting you to be there and you weren't (i.e., annual verification of address, etc.), most likely in the past they would check local hospitals after a period of time. However, under HIPAA they would be told, the hospital can neither confirm or deny that such a patient exists.
In a sense when the sex offender is hospitalized, it is as if you disappeared. Hopefully for a planned hospital stay, all would be resolved beforehand, but then there is the emergency, and accident or something like that.
The fourth circumstance: This is something unusual, sex offenders in the community who have special needs, who are challenged either physically or mentally. Many of these folks obtain services from community social service agencies.
Currently in Connecticut such a case exists and we are watching it play out to see just how HIPAA plays a part in this. You can read about this case in the "News Reports" below.
Summarizing: A mentally challenged registered sex offender is living in a rented home in Connecticut. The landlord apparently owns two homes which he has rented to two different sex offender, one is receiving services from Reliance House (a community mental health agency).
The community learned of the mentally challenged sex offender's presence from the state's sex offender registry, and later the second sex offender. The mentally challenged sex offender's residence is apparently at the edge of a wooded area, the other side of which is school property. The community protested his presence and wanted him to move. They contacted their local asemblyman who tried to find out more about the mentally challenged offender, and when he couldn't Reliance House admitted Federal Law prohibited them from saying anything. i.e. HIPAA.
The community persisted and initiated a lawsuit. They claimed (alleged) that, the landlord is running a business in a residential area against zoning laws, and dragged Reliance House into the suit. The landlord says, "I'm not doing anything wrong, I'm just renting to two different sex offenders who have to live somewhere." There are no laws in Connecticut prohibitng sex offenders from living near schools, the community doesn't care about that, they want the sex offender out; so they attack the landlord??? (Guilty by association).
The judge on 5-21-2003 (click to read 5-21 news article; earlier ones are below.), recognizing all sorts of problems, including he may not even have jurisdiction to do anything, has ordered everyone to file briefs for him to read. Note: The sex offender himself is not a party to the action, he was not served anything whatsoever. Further, until this 5-21 news article, neither his name nor his conviction, has ever been mentioned.
We have no idea how this will play out. Notice the town's lawyers, trying to get the court to evict someone who is not represented in court using a little known process, a Prejudgment remedy to evict the sex offender. Actually they are attacking the landlord, for doing nothing wrong. What happened to real-party-in-interest rules?
[In Connecticut, a prejudgment remedy is "any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession, or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order." Conn. Gen. Stat. § 52-278a.]
Clearly the judge recognizes this sounds more like an "Abuse of Process" action, and it seems they forgot about the AMericans with Disabilities Act which the sex offender can use to fight the eviction if it comes. This case bears watching!
What are the HIPAA laws/rules that may come into play
with sex offenders??
HIPAA contains one section (with three sub-sections) which we believe would be claimed to support public disclosure of sex offender medical / psychological information:
§ 164.512: Uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required.
§§ 164.512(a): Uses and disclosures required by law;
§§ 164.512(f): Disclosures for law enforcement purposes;
§§ 164.512(j): Uses and disclosures to avert a serious threat to public health or safety.
None of the above support "Public Disclosure of a Sex Offender's Medical Information" without a signed release. Each of the sub-sections are dependent on other factors which are not available to the state without a signed release form from the sex offender!
Neither do any of above support "State Access of a Sex Offender's Medical Information" without a signed release. Each of the sub-sections are dependent on other factors which are not available to the state without a signed release form from the sex offender!
However, state access and public disclosure is permitted when the sex offender is a fugitive or involved in a current criminal investigation alleging criminal activity! Further, family access and state access is also permitted when an extreme emergency exists (i.e., accident etc.).
--- HIPAA rule subsections (Added 5-24) ---
What follows is a list of the individual subparts of the HIPAA rule. This is being placed here so folks who are on parole, probation, supervised release, or other form of community supervision are made aware of ALL PARTS OF THE RULE. However, be advised we show only the title of each subpart.
One point about titles of subparts, a title may imply that, every possible use within the title's description is possible, that should not be assumued, and in fact, many of these subparts contain provisions limiting their use. Likewise is it when you go into a subpart, into its various sections, frequently there are limiting statements which restrict uses to specific circumstances. So don't be fooled by a Title, read all parts of it, so you understand it.
PART 164 – SECURITY AND PRIVACY
Subpart A – General Provisions
Sec.
164.102 Statutory basis.
164.104 Applicability.
164.106 Relationship to other parts.
Subparts B-D – [Reserved]
Subpart E – Privacy of Individually Identifiable Health Information
164.500 Applicability.
164.501 Definitions.
164.502 Uses and disclosures of protected health information: general rules.
164.504 Uses and disclosures: organizational requirements.
164.506 Consent for uses or disclosures to carry out treatment, payment, and health care operations.
164.508 Uses and disclosures for which an authorization is required.
164.510 Uses and disclosures requiring an opportunity for the individual to agree or to object.
164.512 Uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required.
164.514 Other requirements relating to uses and disclosures of protected health information.
164.520 Notice of privacy practices for protected health information.
164.522 Rights to request privacy protection for protected health information.
164.524 Access of individuals to protected health information.
164.526 Amendment of protected health information.
164.528 Accounting of disclosures of protected health information.
164.530 Administrative requirements.
164.532 Transition requirements.
164.534 Compliance dates for initial implementation of the privacy standards.
Authority: 42 U.S.C. 1320d-2 and 1320d-4, sec. 264 of Pub. L. 104-191, 110 Stat. 2033- 2034(42 U.S.C. 1320(d-2(note)).
Note: Under subpart 164.520 "Notice of privacy practices for protected health information," is a provision which requires that, whoever is requiring you to sign their notice, is also required to give you a copy of that Disclosure/Access form you are signing. We mention this because, often employees (i.e., Department of Corrections personnel, etc.,) feel imposed upon to do anything after they have accomplished their task!
--- Conclusion ---
The presence of HIPAA now seals all medical (including psychological) information about a sex offender without a signed release from the sex offender!
Sex offenders must take the time, before signing anything from "the state," to assess what "Access" and "Disclosure" provisions are inherent in the document they are signing. Is it a release of information, even hidden, or implied?
It will take time for various circumstances to rise before much is known about this new law. It does appear that it provides some Privacy Protections for sex offenders.
Until we learn more, this is where we will leave this issue. Yes, many questions are still unanswered, simply because this law never existed before.
Copyright ©2003 LAMP.
"There are a thousand hacking at the branches of evil to one striking at the root."
- Henry David Thoreau -
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--- News Articles Where HIPAA was a Factor --- |
6-19-03 Canterbury, Connecticut:Landlord to file suit in sex offender case: Following the town's failure to get a temporary injunction to relocate a convicted sex offender living near its schools, one of the offender's two landlords said Wednesday he is fighting back.
Blaine Kukevitch said he will file a countersuit against Canterbury, claiming he is being unfairly targeted for renting to the offender. Putnam Superior Court Judge Francis Foley ruled Tuesday that the convicted sex offender does not have to move while the town challenges the landlord..(6-19-03 NorwichBulletin.com)
6-18-03 Canterbury, Connecticut:Canterbury Loses Round Against Sex Offender: A Putnam Superior Court judge has denied the town's first legal move to oust a convicted sex offender from a house on Finn Road.
According to a representative from the court clerk's office, Superior Court Judge Francis J. Foley III filed the eight-page ruling denying the town's request shortly before court closed Tuesday.
On May 20 Foley questioned the technique town attorneys Richard Cody and Jon Chase used in their attempt to force the owners to rectify alleged violations of zoning and building regulations. The judge gave the town's attorneys and two defense attorneys 10 days to submit briefs on the issue before he decided how to proceed with the case.(6-18-03 TheDay.com)
6-2-03 Canterbury, Connecticut:Canterbury can't control who lives where. Or can it?: There is no law in Connecticut stating where an individual can or cannot live. While Canterbury residents have the right to know the domicile of a convicted sex offender -- thanks to the state's Megan's Law which provides that data on the Internet -- the town cannot order that person to relocate. While the individual in question is indisputably a convicted sex offender, he has paid the penalty -- his debt to society -- and he is electronically monitored.
But if the town were successful in ordering this man to relocate based on his crime, what's next? Would convicted drug abusers be restricted and not allowed to live near a pharmacy? Would convicted thieves be forbidden to live near places of business or other homes? This could well be the first step down a slippery slope.(6-2-03 Norwich Bulletin: Editorial)
4-26-03 Canterbury, Connecticut: Officials learn limits on sex offender: Canterbury can't force sex criminal to move.
Town and state officials Friday learned what they already suspected: A convicted sex offender cannot be forced to move, even if he lives near two schools. First Selectman Neil Dupont, state Rep. Jack Malone, D-Norwich, state Department of Mental Retardation Commissioner Peter O'Meara and parent activist John Boyle met for an hour behind closed doors in Dupont's office Friday.
"We presented what we thought was the problem and we talked about what the solution was," Dupont said. "Unfortunately, the laws are not written the way you want them to be." Dupont said he asked state officials to move the offender, who is under supervision by the DMR (Department of Mental Retardation) and, reportedly, the Reliance House of Norwich, away from the schools.
Federal disclosure laws (HIPAA) protecting confidentiality prevent the town from getting any answers regarding the potential threat, according to Dupont. Malone, who is a member of the Reliance House board of directors, said the DMR can't disclose a lot of information. "They have guidelines," Malone said.
Moving the offender would work, Malone said, but cannot be forced. "Sure, it may be a quick and easy solution. But the guy has rights. The department may not be able to move him out if he doesn't want to be moved." .(4-26-2003 Norwich Bulletin)
UPDATE 5-2-2003: "Reliance House Executive Director David Burnett, meanwhile, said federal confidentiality laws prohibit him from commenting on any clients."
5-1-03 Canterbury, Connecticut: Town Files Suit, Seeks Removal Of Sex Offender: The town is suing two local landlords and a Norwich-based mental health agency in an effort to force the relocation of a sexual offender living on Finn Road.
Local residents and officials are upset they were not notified by either the state or Reliance House when Smith moved to 35 Finn Road, a Cape Cod-style house Kukevitch and Donofrio own. The house, which sits at the end of the dead-end road, is located near woods that have trails leading to Canterbury Elementary School and the Dr. Helen Baldwin Middle School.
The town's lawsuit is aimed at forcing Reliance House and the state's Department of Mental Retardation, which the town believes is providing services to Smith, to move him. Smith is one of several mental health clients who jointly rents the single-family house. Kukevitch and Donofrio also rent out a mobile home next to 35 Finn Road to another mental health client, the town's lawsuit alleges.
First Selectman Neil Dupont Sr. said he agreed to move forward with a lawsuit because he was frustrated with what he described as a lack of response from state officials. (NOTE:The local community and this legislator are upset because HIPAA is protecting all information on this offender, because it is considered "Mental Health information." They are hoping that once in court they can reveal why and try to get laws changed so sex offenders have no HIPAA protections.)
Local residents held a protest last weekend on Finn Road, and Dupont met last week with O'Meara to discuss the situation. That meeting, however, provided little information on why Smith and several other mental health clients are living on Finn Road, Dupont said. “We're putting the state on notice that we're not going to roll over and play dead on this,” Dupont said.(5-1-2003 TheDay.com)
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6-3-03 Milwaukee, Wisconsin:Judge (Franke) Allows Child Molester To Move Into Milwaukee Neighborhood: Did HIPAA play a part in the, err, transition from Civil Commitment Center to the community? Billy Lee Morford walked into court a free man Monday -- no cuffs, no shackles. He was released earlier in the day from a state treatment facility.
The county supervisor urged the district attorney's office to ask the court for a delay, hoping Morford could be moved somewhere else. "In an industrial area, if possible, or in an area that is not so residential," said prosecutor Audrey Skwierawski. Judge John Franke turned down the eleventh-hour request, meaning Morford can move in. "I'm satisfied that the release plan provides for considerable protection," Franke said SEE EARLIER ARTICLE BELOW!.(6-3-03 Milwaukee Journal Sentinel)
5-31-03 Milwaukee, Wisconsin:Sex predator's new home angers county supervisor: The scheduled release Monday of a sexual predator into a residential neighborhood on Milwaukee's northwest side is the result of "a conspiracy of silence" that bypassed input from residents and public officials, county Supervisor Robert Krug complained Friday.
Krug charged that a community notification meeting the Milwaukee Police Department was to hold Monday concerning the supervised release that same day of convicted child molester Billy Lee Morford was improper because the public isn't being notified until "after the fact."
Milwaukee County Circuit Judge John Franke, who ordered Morford's supervised release, also was contacted by Krug. Franke told a reporter that he was prohibited by law from discussing the case..(5-31-03 Milwaukee Journal Sentinel)
4-29-03 Kentucky: Judge Worries New Federal Law Could Cause Problems In Prosecuting DUI Cases: Under HIPAA, a patient has to be notified when either the courts, police or an attorney seeks medical records. And there is a concern a new loophole may have been created when it comes to toxicology tests for DUI.
5-22-03: Privacy rules, police find themselves in a conflict. A federal law designed to protect patients' private medical information could obstruct the ability of police to investigate crimes and accidents, area officials say. The rules also could alter the public's access to the details of events.
5-23-03 Missouri: Patients' privacy evolving to meet new law:
When Beth Jennings was taken to Southeast Missouri Hospital to be checked out after a minor car accident recently, she was introduced to a strange-sounding word. HIPAA.
5-9-03 Missouri: Local police officers grousing about new information guidelines: Under Missouri law, hospitals and other health-care providers have an obligation to keep patient health information -- even names, addresses and phone numbers -- confidential, Sill said. They can disclose health information only when authorized. For example, when a patient has a gunshot wound. Or when a patient agrees to release the information, or when a court orders it. "Law enforcement has no inherent right to get that information," Sill said.
That's because under the new guidelines, health-care providers who violate state privacy laws could be breaking the new federal law as well, Hatton said. Hospitals and other health-care providers that violate the new guidelines face hefty fines, so they are being careful. Too careful, Kansas City police say. The potential lack of access could apply not only to crime and accident victims but also to suspects, including drunken drivers. Although Kansas City police have not reported an incident involving a suspected drunken driver, Sims is worried that officers won't be able to get blood samples if they aren't allowed in the emergency room. "Not allowing us to get to the suspect or delaying that could jeopardize any charges being brought against the suspect," Sims said. "If we can't get in there, how do we arrest them for DUI?"
Homicide detectives also are concerned about how the new rules will affect their investigations.
5-17-03 Montana: Example of HIPAA in a crime scene: Little new information was available Friday in what appeared to have been an attempted murder-suicide near Frenchtown on Thursday afternoon.
Ron Newman, 67, was in critical condition after he was taken to St. Patrick Hospital by Life Flight on Thursday afternoon, but hospital officials were unable to release any information about his condition Friday. Under new federal rules outlined by the Health Information Portability and Accountability Act, his family requested that all medical information remain private. The hospital faces stiff fines if it does not follow the family's request.
5-11-03 Nevada: New federal rules restricting medical information spur debate: A local critic of the guidelines said the original goals of the law passed during the Clinton administration have been subverted.
“What we have here is a total defeat of the original intention of the HIPAA Act of 1996,” said Reno psychologist Herbert M. Schall. “(The new guidelines) have stripped the patient of all control over the privacy of their records. It’s a travesty.” Some psychiatrists worry that the rules could force them to share their patient notes with insurance companies, Schall said. Others worry the rules might be applied to DNA records in the future, allowing insurance companies to see whether someone is genetically susceptible to certain diseases.
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