There I was on the lush, green and beautiful grounds of The Ranch on the River, the Assisted Living Facility located in our little Hill Country Town. I had come down for the day to visit my Aunt Bernice who is one of the residents there. The Ranch on the River is located a few miles outside of civilization on the river that continues on through town. The Ranch was once a popular resort that fell out of favor as it aged and new resort condos were built in the area.
The owner of the ALF is Mona Dryden. A local rancher’s daughter, Mona grew up in our town and worked summers out at The Ranch as a teenager and college student. She got her nursing degree and then her Administrator’s license for Nursing Facilities. After 20 years working in Nursing Facilities, including the Serendipity in our little town, Mona saw the growing popularity of Assisted Living Facilities. She bought the old resort and turned it into an ALF.
I stopped by to see Mona. She and I are the same age and went all the way from kindergarten and up through high school together. When it came time for college in the mid -1970s, we parted ways. Mona decided to go to the University of Texas. I decided to go to Texas A&M University. Mona was quite upset about my decision. To my offended irritation, she kept insisting that I would become a “cultural barbarian” if I went to A&M.
Her objections didn’t change my mind and I went on to Texas A&M determined to prove her wrong on that “cultural barbarian” thing. I soon had my chance to exhibit the high brow culture of us Aggies when I learned that a real ballet troupe from New York City was going to perform at Texas A&M. The evening of the performance, the A&M performing arts theatre was packed by other Aggies getting a dose of culture. We managed to stay awake during the first half which consisted of a montage of classical ballet pieces. At intermission, we made what we thought was intellectual conversation about what we had just seen and frostily quelled jokes from the sillier among us about male “ballerinas.”
We returned to our seats for the second half. The lights went off. Then, we heard the electric strains of the song “Black Magic Woman” from Santana Abraxus. The lights slowly came up, and, as they did, an audible gasp came from the Aggie-filled audience. For there, dancing with graceful power across the stage was a group of muscular male dancers wearing nothing but teensy little thongs! Back in 1974 in College Station on the campus of Texas A&M University, we had never seen or heard of such a thing as a thong, except for the ones we wore on our feet. This certainly wasn’t the sort of attire that was sanctioned by the First Baptist Church in Muleshoe or the Missouri Synod Lutheran Church in my little Hill Country town with its proud German heritage. Even the kids from the Houston and Dallas suburbs were taken aback.
I looked around and saw that my fellow Aggies had the same stiff look on their faces as I did. It was as if we were trying our youthful best to seem sophisticated and cultured when all we really wanted to do was cover our eyes and giggle with goofy nervousness at the sight of mostly naked ballet dancers right in front of our eyes.
After the performance, I ran all the way back to the dorm because I was in such a hurry to call Mona. I was determined to inform her that I was no “cultural barbarian.” I was now a “cultured woman of the world” because I had attended a performance of naked male danseurs. When I finally reached Mona, she was returning from an evening of performance art which consisted of somebody sitting in a giant birdcage reading aloud from an essay by Jack Kerouac. Needless to say, Mona was snootily unimpressed by my experience.
Soon thereafter, Mona went to Nursing School and started working in the field of long-term care, and, along with the rest of us, lost her silly pretensions. Life has a way of doing that.
Now, back to the ALF…
I walked into the business office as Mona was standing at the fax machine faxing requests for refills on resident’s prescriptions to the fax machine used by Dale Nichols, our local pharmacist. Mona’s ALF does not have a Medicaid waiver nor is she on the CBA system. She has a nurse and medication aide working at the ALF. The ALF keeps all health information on paper and does not transmit anything electronically-including billings. All faxing of information is done on the fax machine and not on the computer.
Question: Is The Ranch on the River subject to HIPAA?
Answer: No, according to most experts in the field, The Ranch on the River would not be a “covered entity” under HIPAA because it does not electronically transmit protected health information. Faxing on a fax machine to another fax machine does not qualify as an electronic transmission as the data is not transmitted digitally. If you participate in the Medicaid waiver or CBA programs you are covered because you do transmit PHI electronically. If you electronically transmit data digitally, you are a “covered entity” under HIPAA
Prior to the last Texas legislative session, and under the old Texas Medical Privacy Act, The Ranch on the River would have been a “covered entity” under HIPAA because it comes into possession of, and obtains and stores, protected health information. Under the old law, The Ranch would have been required to come into compliance with HIPAA by the fall of 2003. This is no longer the case. Senate Bill 330 repealed these requirements Now, a Texas health provider who does not electronically transmit protected health information is not a “covered entity” under HIPAA. However, the Ranch on the River is a “covered entity” under the Texas Medical Privacy Act and must comply with its remaining requirements.
I noticed that Mona seemed upset about something.
“What’s new with you, Mona?” I ventured.
“Oh Suzanne Roberta, I just want to whoop up on Rochelle!” answered Mona. “I want to whoop her up one side and right down the other!”
Rochelle Beasley is the medication aide at the facility. She’s a tall, thin and extremely energetic young lady. She constantly has new ideas about things, and she’s forever implementing those ideas without asking first, which keeps her in constant trouble.
“What has Rochelle done now?” I asked.
“Well, it all started with your Aunt Bernice…”
My Aunt Bernice is determined to explore and try every type of medication she sees on television. If the Medicare Prescription Drug Plan really comes into effect, she will probably single-handedly bankrupt it.
Apparently, Bernice saw some drug on television and talked to Rochelle about it. Bernice thought that it would help her and some of the other residents. Rochelle got the idea of contacting the drug company, giving information about some of the residents to the company, and requesting that information on the drug be sent to those residents. Rochelle did not get written or electronic permission from any of the residents, and only oral permission from Aunt Bernice. The residents got the information from the drug company in the mail. Mona found out about it after overhearing the residents discussing the new drug. The residents didn’t think anything of getting information from a drug company, but Mona however was livid when she found out how the drug company got the resident’s names and protected health information.
Question: Does Mona have a reason to be livid?
Answer: Yes. What Rochelle did was a violation of both HIPAA and the Texas Medical Privacy Act. Under both, this is disclosing PHI for marketing purposes. Under the present Texas Medical Privacy Act, Rochelle needed each “individual’s consent or authorization.” She had only Bernice’s oral authorization (the present law does specify written or oral consent or authorization-written is, of course, safer). Texas Senate Bill 1136 makes some changes to this Act, some of which come into effect September 1, 2003. The new marketing provision comes into effect on January 1, 2004. As of that date, Rochelle needs “clear and unambiguous permission in written or electronic form” before disclosing PHI to anyone for use in a marketing communication. The civil penalty under the Texas Medical Privacy Act is $3,000-unless there is a pattern of violations. If there is a pattern, the civil penalty can be up to $250,000.00.
Under HIPAA, a written authorization meeting the HIPAA requirements would be needed as well. Also, a preemption analysis as to whether the changes to the Texas Medical Privacy Act are more stringent than HIPAA would need to be done. Senate Bill 1136 gives that responsibility to the Texas Attorney General-and creates a Task Force to do just that.
“Mona, you better not whupp up on Rochelle!” I said. “You outweigh her by fifty pounds!”
“Well, what would you do?” replied Mona.
Question: How can Mona salvage this without flattening Rochelle?
Answer: Texas Senate Bill 1136 adds a Mitigation Section to the Texas Medical Privacy Act, which is effective September 1, 2003. This section allows the covered entity to provide evidence of its “good faith attempts to comply with state law and/or HIPAA (for those also covered under HIPAA). An Administrative Court can adjust any penalty accordingly. The ALF should, therefore, have privacy policies and procedures for protected health information even if it is not covered by HIPAA. The policies and procedures should include disciplinary actions to be taken against an employee who violates the policies and procedures. And, it is extremely important to train your employees regarding these privacy issues and to document the training.
There is a similar provision in HIPAA if a failure to comply is “due to reasonable cause and not to willful neglect.”
In order to get Mona calmed down and to keep her from whooping up on Rochelle, I had to promise her an evening of culture. This time, instead of going to watch ballet-I think we’ll just go to the German-American Hall and do the “Chicken Dance.” After all, there’s no telling what those male “ballerinas” might be wearing (or not wearing) these days.
To be continued…
For more information on this subject, contact Jerri Lynn Ward with your specific question(s).
All information in this article and on this site is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2003 by Garlo Ward, P.C., all rights reserved.
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