Applies to all facilities and covered entities
Posted October 10, 2002
By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
I left Dr. Eberhardt’s office and drove to the town square to go to the drugstore. Dale Nichols is the town pharmacist. He grew up in this town, and has only left long enough to go to college and pharmacy school.
I walked out of the searing heat into the cool of Dale’s drugstore. Dale was standing behind the counter, he looked at me with the same wary look in his eye he’s had since we were 6 years old and in first grade together. You see, Dale was the smartest boy in the class throughout our school years. When I was six, I also thought he was the cutest and the nicest. These days, he’d be described as “kind and sensitive.” He never seemed to mind playing with me despite the fact that I was a girl. His favorite game was “beauty contest.” I, along with my dolls, were the contestants. Dale would orchestrate the “pageant” and play the part of the judge as well.
The problem was that I kept losing and the dolls kept winning. He would crown the chosen doll and dance away with her. I wanted to be the winner who got to dance away with Dale. I got sick of losing, so one day, just before he chose the winner, I rushed him, tackled him to the ground and laid a bunch of wet, smacking kisses on his face.
He got up and started running the three miles to his house. I got my mother and we followed him for the entire three miles begging him to get in the car so that we could drive him home.
Dale has never married. I’ve always worried that perhaps my behavior on that day has something to do with his perpetual bachelorhood.
Ignoring Dale’s fearful looks my way, I meandered up to the counter where a line had formed in front of LuAnne, Dale’s pharmacy assistant. LuAnne is a blonde, buxom cowgirl who is always smacking on a mouthful of gum. Despite all that gum, LuAnne’s voice has an amazing range of projection. During Rotary meetings at the Dairy Queen, I can hear LuAnne’s voice even when I’m back in the restroom with the water on. She also snorts when she laughsBand she laughs a lot. So, she’s usually the center of attention in any crowd. It was no different this day as she held forth to the audience in line. Wayne Harris was at the front of the line, and he had a dazed look on his face as she talked.
LuAnne had apparently just gotten back from some pharmacological seminar in Austin. She was laughing, snorting and smacking her gum as she discussed the interesting folks she’d encountered in Austin. Wayne finally got away, carrying his little white pharmacy bag with him.
Poor Mrs. Hufstetler was next in line. Juanita Hufstetler is a 75 year old who has been widowed for the past 20 years. She’s a quiet, modest woman, much given to doing good works through her church. When she said hello to me in the line, she seemed to have a real pinched and pained look on her face. “Well, hello, Mz. Hufstetler,” said LuAnne, her voice projecting throughout the store, “Dr. Eberhardt just called in your prescription.”
Problem? There is no longer a problem under HIPAA with dispensing a prescription telephoned in from a physician. Under the old HIPAA rules, that was prohibited in the absence of prior written consent by the patient. Thus, under the new rules, pharmacies can use protected health information to fill prescriptions without prior consent. Now, an acknowledgment, instead of a consent, can be obtained when the prescription is dispensed, according to the new rules, adopted in August 2002. The pharmacist can use the log book for the authorization as long as the individual is “clearly informed on the log book of what they are acknowledging and the acknowledgment is not also used as a waiver or permission for something else, e.g. a waiver to consult with the pharmacist.
There is also no problem with LuAnne saying Mrs. Hufstetler’s name so that other customers could hear.
“Lu Anne, I need to pick up my brother’s prescription as well,” said Mrs. Hufstetler.
Problem? No. Family members can pick up prescriptions for the individual.
Mrs. Hufstetler’s brother, Grover Gerhardt, is 90 years old and quite a character. Although he lived in town, he owned a peach orchard and farm outside of town. When I was little, I asked him what his last name was, and he said, “Gravy.” So I always called him Grover Gravy. When I was eight, my mother and I visited his farm, and he showed me the chicken coop. He gave me what he said was a “fertilized” egg and that, if I kept it warm, it would hatch. So I took it home and put it under a lamp. I began to get impatient about hatching that egg, and decided that I was going to sit on it like a hen would. So, I made a little nest and sat on it. For days, I’d come home from school and go to the recreation room to sit on that darn egg while watching Yogi Bear and Woody Woodpecker cartoons on television. Finally, one day, I sat a little too hard and the egg broke.
“Okay, Mz. Hufstetler,” said LuAnne as she smacked away on her gum, “Dr. Eberhardt called that in too.” Then LuAnn got her infamous “know it all” look on her face. “Looks like your brother’s got a case of Herpes Zoster. I learned all about that at the seminar in Austin . . .”
As LuAnne continued to run her mouth, Mrs. Hufstetler turned around to me with a look of pure horror and humiliation.
“Roberta Suzanne,” she said, “That just can’t be. Grover’s been widowed for 25 years, and he hasn’t left the house without me in the past five years. How could he have Herpes?”
I gave LuAnne a look that I hoped would freeze fire—or at least her mouth.
I said, “Ms. Hufstetler, Grover has shingles—that’s totally different from the other kind of Herpes. LuAnne just has a big mouth.”
Problem? LuAnne’s lack of social grace aside, if Mrs. Hufstetler has the authority to participate in making decisions about Grover’s health care, a covered entity can discuss protected health information with her. There is a problem with LuAnne talking loud enough for Roberta Sue to hear. The government isn’t going to target providers because of inadvertent disclosures; however, if the issue is pressed by a patient, you need to show that you have implemented reasonable measures to avoid such disclosures. A good course of action for pharmacies is to have a designated area for people to stand back from the counter while the pharmacist is consulting with a customer so as to make reasonable efforts to avoid inadvertent disclosures of protected health information.
After Mrs. Hufstetler left, it was my turn. I hoped the forbidding look on my face would encourage LuAnne to use a little discretion in her dealings with me.
“Dr. Eberhardt phoned in a prescription for me,” I said.
“Oh sure, Roberta Suzanne, we got that. Listen, I talked to Dale about that prescription, and we can fill it with a different drug for a lot less money. It’ll fix that pain in your butt up real nice same as what Dr. Eberhardt prescribed. Would you like to get that changed?” smacked LuAnne.
“LuAnne, the pain is in my hip! My hip!!” I hissed
Problem? This gets into the issue of drug switching. Drug switching can be problematic if the pharmacist receives cash payments or other benefits from the pharmaceutical company for suggesting that an individual change drugs. It could be considered marketing under HIPAA, which requires authorization for use or disclosure of protected health information. However, in this case, an exception to the HIPAA definition of marketing applies because the communication is being made face-to-face. Thus, it appears to be permissible under HIPAA, even if there is remuneration. Privacy advocates are objecting to this situation, and HHS has suggested that drug switching could be a “suspect” practice under Federal anti-kickback statutes.
Conclusion
Providers, including pharmacies are going to need to:
- come up with privacy policies
- make “a good faith effort” after notice is given to obtain each patient’s “written acknowledgement” that the patient received notice. This should happen the first time a prescription is dispensed after notice of the privacy policies is given. An acknowledgment needs to be obtained only once per patient.
To be continued . . .
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
