Applies to all facilities and covered entities
Posted November 6, 2002
By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
I walked up the sidewalk to Serendipity Village Rest Home to visit my grandparents. One advantage of having lived in the same small town where my folks and their folks grew up was that all of my grandparents got to live in the same rest home. Their lives at Serendipity were one seamless continuation of their lives in the town.
As I walked up to the door, I saw a man walk out. It was Sleazy Slovacek, one of the lawyers in town. He was in my class from kindergarten through high school. His real name was Silas, but for some reason none of us in kindergarten could pronounce “Silas.” So “Silas” turned into “Sleazy” and stuck, much to his furious dismay. None of us could know in kindergarten how accurately Sleazy’s nickname would describe his adult character after he became a lawyer. He came back to town after law school and became an avid “ambulance chaser.”
I wondered why he had been at the Home since he had no relatives living in it, but I knew I could guess. Sleazy had found what he considered his “niche” in the law: suing nursing homes. Actually, he wasn’t the one who filed the suit papers. Instead, he would sniff out “situations” in the regional nursing homes to refer to a big blowhard of a lawyer in San Antonio . From that, Sleazy received a referral fee.
Sleazy built a cottage industry on these referrals. He started renting billboard space right by nursing homes to advertise his services for suing nursing homes. He was renting billboard space by nursing homes all over the place, until he got to the one by Serendipity. You see, that billboard was owned by George Heiligenthal. Mr. Heiligenthal graduated from Texas A&M in 1941. He went into the army and was sent to the European theatre as a lieutenant during WWII where he fought under Patton, whom he idolized. He returned to town after the war and became a successful businessman and an active member of the First United Pentecostal Church . Being Pentecostal, Mr. Heiligenthal didn’t believe in lawsuits. He also didn’t tolerate fools. To him, Sleazy represented both.
Despite his advanced years, Mr. Heiligenthal was an intimidating force. The story was that when Sleazy approached him to rent the billboard space, Mr. Heiligenthal didn’t say a word. He just stared at Sleazy with his cold, iron-hard, blue eyes, until Sleazy started blathering like an idiot and almost fell over himself trying to get away. Then Mr. Heiligenthal donated the space on that billboard to Citizens Against Lawsuit Abuse.
“Hi Sleazy,” I said. He gave me a pained look and mumbled something before scuttling off to his Beamer.
I opened the door to Serendipity. Over to the left was the reception area to the administration offices. There sat Lenore Schultz, the receptionist for the Home.
“Hi Lenore . What did Sleazy want?” I asked.
“Oh, hello Suzanne Roberta . Good to see you. Old Sleazy was in here trying to get Mrs. Jimenez’s resident records. Mrs. Jimenez ‘s son-in-law signed a paper to get us to release those records.”
“You mean the son-in-law who refuses to come to the family days and holidays?” I asked.
“The very one.”
” Mrs. Jimenez is sharp as a tack; how can he get those records?”
Can he get the records under HIPAA and Texas Privacy Laws?
Residents or individuals authorized to represent residents in making healthcare decisions must sign an authorization form before private health information can be disclosed to anyone for purposes other than treatment, payment or healthcare operations. Authorizations are not required to be signed if information is being provided that pertains to a resident’s treatment, payment for treatment, or healthcare operations.
Unless Mrs. Jimenez’s son-in-law is authorized to make her healthcare decisions, the records cannot be disclosed. Only Mrs. Jimenez or an individual authorized to act on her behalf has the power to sign an authorization. If Mrs. Jimenez had been declared incompetent by a court of law, the guardian would need to sign a consent for Sleazy to get the records.
However, if Sleazy files a lawsuit against the nursing home, and a subpoena for the records is issued, the records will become necessary as a matter of law, and the nursing home must disclose them.
As I stood there talking with Lenore , I looked past her into the Administrator’s office. Mr. Hershey was the Administrator and the owner of Serendipity Village Rest Home. Until three years ago, he was just the Administrator. Mr. Hershey then acquired the Home in a unique manner. You see, the former owner of the Home got sick to death of the lawsuits, the regulatory penalties, and the government’s attempts to force operators to give care to residents for free. He constantly threatened to box up the keys to the Home and send them to the State.
One night, he challenged Mr. Hershey to a poker game. They played hand after hand, and drank glass after glass of whiskey. Mr. Hershey lost the game, and ended up with the Serendipity Village Rest Home. This is the only known case in history of a loser in poker being saddled with a nursing home as a result.
I saw that Mr. Hershey was talking to a couple of people in his office. It was Grover “Gravy” Gerhardt and his sister Juanita Hufstetler. You might remember that Grover was the kind-hearted farmer who gave me the fertilized egg when I was eight years old. I tried to hatch that egg by sitting on it like a hen. One day, while watching Yogi Bear cartoons, I sat down a little too hard and broke the egg.
It was obvious that Juanita was checking Grover into the Home. I felt a little sad about that. I had just seen Juanita at the drug store a little while back. She had gotten really upset about Grover’s shingles. Big mouth LuAnne, the pharmacy assistant, let everyone in the store know that Grover had Herpes Zoster. Juanita got all upset about that, and now she was expressing her concern to Mr. Hershey about Grover having his privacy when it came to his condition of shingles.
” Mr. Hershey , I want to make sure that no one can find out about Grover’s shingles. I don’t want people to associate that Herpes Zoster with Grover. People here won’t understand that,” Mrs. Hufstetler said.
What must facilities do to be in compliance with HIPAA and Texas Privacy Laws when admitting residents?
A nursing facility must disclose to residents upon admission its policies and procedures to protect private health information. The facility must inform the resident that he or she has specific privacy rights under HIPAA, identify the facility’s duties under HIPAA, and inform the resident that the facility will not improperly disclose private health information. This information must be provided by written notice to each resident upon admission, and each resident must also acknowledge receipt of this notice.
I finished talking to Lenore and made my way down the hall to the resident’s lounge, where I knew I’d find my grandparents. On the way, I approached Mrs. Ivy Kukenbaker’s room. When I was in high school, Mrs. Ivy was the Drama teacher. She was in her late 50’s then, but you could tell she had been a great beauty. I had also seen pictures of her when she was in her early 20’s. She was tall, with gorgeous titan-red hair and creamy skin that was bequeathed to her by her Viking forbearers. When she was young, she had aspirations to be a theatre actress. After college at Mary Hardin Baylor, she went up to New York City to try to break into theatre. She actually got some small parts and good reviews. But in her case, love conquered ambition. Harvey Kukenbaker, who had loved Mrs. Ivy since high school, followed her up to New York during leave after boot camp and prior to being shipped off to WWII. She married him before he shipped out, and she returned back to our little town. After raising two kids, she got her teaching certificate and started teaching drama at the high school.
I always knew that Mrs. Ivy was a good actress. She could behave with the dignity of a Grace Kelly or with the silliness of Phyllis Diller. Being of the “Greatest Generation,” she did not suffer fools either. Sleazy Slovacek, the lawyer, was in my senior drama class, and she could not stand him. It is ironic that old Sleazy has been instrumental in the near humiliation of Mrs. Ivy during these last years of her life.
After Sleazy failed to get space on the billboard outside Serendipity, he tried another tactic to find cases to refer to the pompous blowhard in San Antonio . He decided to talk the families of residents into putting video cameras in their loved-ones’ rooms. One of those families consisted of Mrs. Ivy’s grandchildren. Mrs. Ivy’s grandchildren adored her. They were guilt-ridden about putting her in the nursing home. Although Mrs. Ivy had very lucid moments, she was steadily succumbing to Alzheimers, so her granddaughter obtained guardianship. Upon the suggestion of Sleazy, Mrs. Ivy’s granddaughter authorized the video/audio equipment to assure Mrs. Ivy received high-quality care. When Mrs. Ivy found out, she was livid. She was especially mad that the instigator behind this was Sleazy Slovacek, and that he would be reviewing the tapes.
After the camera was installed, it was as if Mrs. Ivy used super human effort to summon back all of her mental abilities to wage war on Sleazy Slovacek via the video/audio camera. She made biting comments about him. She sneered at him. She condescended with the haughtiness of a Duchess. Finally, before Alzheimers snatched away the vestiges of her lucidity, she delivered the coup de grace of all insults. She stood up on her bed with her back to the camera, pulled up her gown, pulled down her panties and mooned Sleazy Slovacek and his hated video camera.
As I neared Mrs. Ivy ‘s room, I could hear the loud, Hill-Country-German-accented voice of my family doctor, Dr. Eberhardt . Dr. Eberhardt was the Medical Director of Serendipity Village Rest Home. He was also the treating physician of almost everyone who lived there. I glanced in the room and noticed that Dr. Eberhardt was attending to Mrs. Ivy’s roommate, Ethel Steinholtz. I also noticed that Sleazy Slovacek’s video/audio camera was still in the room. A little light on the camera indicated that it was on.
HIPAA does not strictly prohibit all disclosure of private health information. It is expected that incidental or inadvertent disclosure of private health information will occur. An example of this is when someone overhears an individual speaking to a pharmacist about side effects. What HIPAA does require is that reasonable precautions are taken to protect private health information.
The medical director may argue that the camera capturing his visit with Mrs. Steinholtz is an incidental disclosure. However, a reasonable precaution would be to direct the camera away from Mrs. Steinholtz during the visit and not record the sound in the room. Redirecting the camera or turning it off entirely during the visit would be a reasonable precaution, and would be the safest course of action for Dr. Eberhardt .
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
505 East Huntland Drive, Suite 335
Austin, Texas 78752-3714 USA