By Jerri Lynn Ward, J.D., Garlo Ward P.C.
(including valuable Hokey Pokey contribution from Nelson Page with the Texas Health and Human Services Commission)
Posted March 1, 2004
It was a beautiful day in February as I walked into Dr. Eberhardt’s office for my annual checkup.
“Howdy Suzanne Roberta,” rasped Rowena the receptionist.
I was a bit afraid that Rowena, who is prone to talking too much and too loudly, was going to comment in front of the crowded waiting room about the ten extra pounds I have put on since my last visit despite Dr. Eberhardt’s advice given during my last physical that I lose weight. Fortunately, Dr. Eberhardt sent Rowena with the rest of the staff to a HIPAA seminar, thereby improving her discretion about medical matters.
As I stood in front of Rowena’s desk, I heard the voice of Sanghamitra (Sammi) Chowdry, coming from the business office. Sammi is the Director of Nurses at the Serendipity Nursing Home. Sammi was speaking Bengali on the telephone in a loud, exasperated voice.
I’ve known Sammi ever since we first met as Brownies going to Girl Scout Camp. Sammi is a member of the Church of Christ. Sammi’s parents were still in India when Preacher Jones of the Hill Country Church of Christ in our town was in West Bengal, India as a missionary. Preacher Jones, being an extremely kind and dynamic man, inspired the Chowdrys, not only to join his faith, but to move to our town when he was transferred there to head Hill Country Church of Christ. The Chowdrys have opened several thriving businesses here and have sent all of their children to college.
Some of my fondest memories include going to Vacation Bible School with Sammi every summer at the Hill Country Church of Christ. When we hit the age of fourteen, I noticed that Preacher Jones was very concerned about preserving the purity of the teenagers in his congregation. Preacher Jones strongly believed that the way to keep us pure was to keep boys and girls from dancing together. Long before Kevin Bacon brought this important issue to the Silver Screen in his movie Footloose, we were living in our own “dance-free” zone.
Preacher Jones knew that the church had to provide activities for teenagers that could compete with the temptations of dancing as portrayed on American Bandstand every Saturday morning. (Although if he’d taken the time to watch teenagers on American Bandstand dancing to such classics as “Yummy, Yummy, I’ve got Love in My Tummy”, he would have found the whole thing to be laughable rather than lust-provoking)
* After some deliberation, Preacher Jones hit upon what he thought was the perfect solution. He organized outings at the local roller rink where we participated in skating activities such as doing the Hokey Pokey on roller skates. Apparently, dancing to music was not such a threat to teenage morals as long as the dancers wore skates and fell onto their behinds a lot while singing silly lyrics such as “you put your right foot inï¿½you take your right foot out…”
After my appointment with Dr. Eberhardt, I ran into Sammi in the parking lot and inquired about her conversation on the telephone.
“Oh Suzanne Roberta, Dr. Eberhardt got himself in a terrible mess,” Sammi replied.
It seems that Dr. Eberhardt contracted out the task of transcribing his dictated reports to an American company. Unbeknownst to him, the company was subcontracting Dr. Eberhardt’s work to a woman in West Bengal, India named Indrani Ganguly. Indrani is the village gossip. She is the source of all rumors, news and information for the village. And, because every day in her village is a slow news day, she decided to use Dr. Eberhardt’s reports about his patients as a new source of information to spread around the village.
The effects of Indrani’s publication of information about people in our town became apparent when patients began receiving get-well cards all sent by people from the same village in India. Then, Juanita Hufstetler, Grover’s sister, went to Sammi because she received a package of Bengali curry with a get-well card meant for Grover.
It was a mystery. Why were these obviously kind and generous people from a town in West Bengal, India bombarding people in our little Hill Country Town with gifts and get-well cards? That is, it was a mystery, until late one night, Dr. Eberhardt received a telephone call at his home from one very incensed Indrani Ganguly, who claimed that she was owed $250 for transcription and was threatening to publish the records of every one of his patients on the internet if she didn’t immediately get the money.
Commentary: This story is loosely based on an actual occurrence. A woman in Pakistan threatened to post the medical records of a Clinic’s patients if she was not paid by the Clinic on a past due bill. She was a subcontractor of the company the Clinic contracted with to do transcription. The Clinic had no idea that their contractor was sending work to an overseas contractor until they received a demand for money and a threat to publish protected health information from the woman.
What are your liabilities as a “covered entity” in such a situation? HHS has no authority over either the original contractor or the subcontractor. Although, HIPAA does not expressly hold a “covered entity” responsible for unauthorized disclosures of protected health information, and does not require the “covered entity” monitor the actions of its Business Associates, it does require that the “covered entity” obtain satisfactory assurance that the business associate will appropriately safeguard the information. This is usually achieved through your Business Associate Agreement.
Given the incident with the Pakistani woman, it may not be enough just to send a Business Associates Agreement to a company doing transcription without asking questions about business practices such as subcontracting and overseas outsourcing. It is probably advisable that when negotiating and retaining transcription companies that you engage in “due diligence” and directly address these issues.
If the prospective contractor does subcontract and ships work overseas, ensure that you address this issue in the Business Associate contract. If you make no effort to learn the business practices of the company you retain to transcribe your reports, you may not have obtained satisfactory assurances that the business associate will appropriately safeguard the information.
And, if you discover that a Business Associate or their subcontractor has been improperly disclosing protected health information and thus breaching its contract with you, you must take “reasonable actions” to cure the breach or end the violation.
At a loss, Dr. Eberhardt called Sammi, who started her nursing career in his office. Sammi, though born in the United States, is fluent in Bengali. Sammi had been speaking to Indrani when I walked into Dr. Eberhardt’s office.
“What did you say to her, Sammi? I asked.
“I told her that I am a personal friend of the famous and powerful Bill Gates and that I was going to call Mr. Gates and ask him to input Idrani’s telephone number into the databases of every telemarketing company in the United States and India, if she didn’t back off.” Sammi responded.
Indrani fearing that, she would never again enjoy dinner without being interrupted by a telemarketer immediately withdrew her threat and e-mailed all of the sound files back to Dr. Eberhardt’s office. This proves that regardless of race, religion or nationality, we are all united in our opinion about telemarketers.
* (The roller skate Hokey Pokey storyline is based on a true story as lived by Nelson Page at HHSC. Nelson very thoughtfully gave me permission to use it for this article. Thank you Nelson. What I wouldn’t give to go back in time to see you do the Hokey Pokey on roller skates.)
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.
907 Ranch Road 620 South, Suite 101
Lakeway, Texas 78734 USA