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Home Health & Hospice Week

HIPAA:

Don't Let HIPAA Hinder Your Patient Access

Published on Thu May 20, 2004

You should track your hospital patients.

It's a common scenario since HIPAA reared its ugly head: A hospital denies a home health agency access to a patient who was on service, then admitted to the facility. But that doesn't mean it's right.

That's the situation faced by the Menard County Home Health, says nursing supervisor Coleen Koch. The county health department-based HHA in Petersburg, IL used to be able to go in once a week to visits its patients who had been admitted to a local hospital to look through their charts and plan for discharge, Koch tells Eli.
 
But now the hospital says Menard can't visit patients and access their records due to the Health Insurance Portability and Accountability Act, according to Koch. The hospital insists the extra work securing patient consent isn't feasible.
 
"It's just so wrong for them to say HIPAA's the reason why" agencies can't access patient charts, insists William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law.
 
Using HIPAA privacy regulations as a reason "is incorrect because such visits from treating providers would clearly fall under the exception for treatment, payment and healthcare operations," points out Burtons-ville, MD-based health care attorney Elizabeth Hogue.
 
No individual patient consent forms are required because sharing of protected health information (PHI) is clearly allowed between treating providers under HIPAA, Dombi agrees. At the most, hospitals would want to check that the patient plans to return to the HHA's care after discharge before sharing the chart, he allows.
 
"HIPAA is not a block" to sharing PHI, Dombi stresses. If the agency plans to treat the patient after discharge, it has "an unbeatable argument" as to why it qualifies for the HIPAA consent exception.
 
The exception: While it's reasonable to expect to be able to visit your current patients when they're in the hospital and access their records, the same isn't true for potential patients, Dombi advises. Letting HHAs "comb through" hospital patient records to identify possible candidates for home care is a no-no.

Competition Is Key
 
It is within hospitals' rights to bar HHA access to patients for other non-HIPAA reasons, legal experts acknowledge. "The hospital is the primary caregiver," explains attorney Deborah Randall with Arent Fox in Washington, DC. "Their rules are in effect."
 
"Hospitals have a legitimate interest in ensuring that the provision of health care ... is under their control in the hospital environment," points out attorney Virginia Caudill with Indianapolis-based Gilliland & Caudill.
 
Watch for this: But the kicker is that if the hospital bars HHA patient access due to its security or other non-HIPAA rules, it must bar access for all agencies, Dombi says. Otherwise, the hospital is favoring some HHAs and is violating patient rights rules and possibly even anti-trust laws.
 
The most common scenario is for hospitals to keep freestanding agencies out while allowing its own HHA staff access to patients. That's the situation Koch alleges for Menard. The local hospital is also failing to hand out the list of HHAs for discharge, as required by the Balanced Budget Act of 1997, she charges.
 
The battle between freestanding and hospital-based agencies over referrals is a longstanding one, Dombi notes. Freestanding agencies think hospitals are steering patients to their own HHAs. But hospital-based agencies think they aren't receiving nearly enough of the hospital's discharged patients, and are loaded down with undesirable cases other agencies won't touch.
 
The truth is usually somewhere in the middle. But if your local hospital is allowing any other HHA to access patients while keeping you out, "you don't have to sit still for it," Hogue insists.
 
"The hospital should be facilitating patient choice, not steering patients," Randall says.

HHA Access Means Better Discharge Planning
 
If your local hospital truly isn't allowing any HHAs in to consult with patients before discharge to the home, you still have a good reason to argue against it, Dombi advises. "It may be their policy, but it's a bad policy."
 
Win them to your side: It's in the hospital's best interest to have a smooth discharge planning process, Hogue notes. It boosts good patient outcomes and allows hospitals to discharge patients as early as possible, saving them money under most DRGs.
 
And the Medicare conditions of participation and Joint Commission on Accreditation of Healthcare Organizations standards require hospitals to conduct appropriate discharge planning, Dombi adds. While there is no definition of discharge planning, HHAs can successfully argue that communicating with post-acute care providers is vital to a good discharge.
 
"The patient must be ready for the home and the home for the patient," Dombi says. "That can't happen with a snap of the fingers after discharge."
 
Social Visits OK: While not as productive as official visits, agencies have every right to go in during normal hospital visiting hours and check in on their patients, the experts agree. Barring agencies from social visiting is a violation of patient rights to visitation, Randall says.

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