Client Advocacy: What to do When Your Client’s HIV Confidentiality or Testing Rights Have Been Violated 2013
Who’s the Legal Action Center? • Anti-Discrimination & Privacy work: • People with criminal records, alcohol/drug histories, and/or HIV/AIDS • Legal services & litigation • Advice to providers • Trainings • Policy advocacy & research
Free Legal Services Including – HIV testing & confidentiality Discrimination based on: HIV status Alcohol/drug history Criminal record – Rap sheet review and error correction Certificates of Relief and Good Conduct Job & Housing Discrimination 3
How to get help? • Call the Legal Action Center • 212-243-1313 • 800-223-4044 (toll-free) • Clients: • Ask for “paralegal on call” • Providers: • Ask for “attorney on call” • Monday – Friday, 1 to 5 pm
This training has 3 parts: • Part 1: Review of the Basics: • Fundamentals of New York’s HIV Testing and Confidentiality Law • Assumes you’ve received overview before • Part 2: Client Advocacy: HIV Confidentiality or Testing Rights Violated by a Different Agency • Part 3: Client Advocacy: HIV Confidentiality or Testing Rights Violated by Your Agency
Hand-outs • PowerPoint • Flow chart on NYS HIV confidentiality law • HIV/AIDS Testing, Confidentiality & Discrimination: What You Need to Know About New York Law • Two DOH “Technical Assistance” bulletins on 2011 release forms – DOH 2557 & 5032 • DOH materials about Art. 27F changes • Sample Complaint narratives All are available at http://lac.org/index.php/lac/149#advocacy More about Article 27-F amendments of 2010: http://www.health.ny.gov/diseases/aids/testing
Review of the Basics HIV confidentiality
Relevant Laws • Major Laws governing confidentiality of health information – and HIV related information: • Federal Law: HIPAA (Health Insurance Portability & Accountability Act) • New York Law: NYS Public Health Law, Article 27-F
HIPAA – what is it? (cont.) • Federal law that establishes minimum safeguards to protect the privacy of medical records and other “personal health information” (“PHI”). • Applies to personal health information no matter how it is shared: in electronic, written or oral form.
HIPAA: Who is covered? Covered Entities Are: • Health Plans • Health Care Clearinghouses • Health Care Providers IF they transmit personal health information electronically in order to process payment or make eligibility determinations.
Article 27-F – what is it? New York State law that governs: • HIV testing • HIV confidentiality • HIV reporting • HIV partner notification • Also note related provisions about HIV case reporting in Pub. Health Law §§ 2130-2139
Article 27-F Who is covered? • ANY person or agency who receives HIV-related information about a protected individual: • while providing a covered “health or social service” Examples: health care professionals and health facilities, foster care agencies, school nurses, OR
Article 27-F Who is covered (cont.)? 2.Anyone who receives HIV information pursuant to a proper written release. This means – • if you obtain a client’s HIV information pursuant to his or her signed HIV release form, you must follow Article 27-F. • if you disclose a client’s HIV information pursuant to an HIV release form, the person/agency receiving it must follow Article 27-F too. OR
Article 27-F Who is covered (cont.)? • ANY New York state or local governmental agency that: • provides, supervises or monitors health or social services Examples: DOH, OASAS, OTDA, DOCCS, HRA, DSS
Article 27-F Does NOT apply to: • Protected individuals themselves • Friends, relatives • Courts • Insurers • Pharmacies • Federal agencies (military, federal prisons) • Schools (except medical staff) • Employers
Article 27-F Does NOT apply to(cont.) : BUT other laws may protect confidentiality. Examples: • U.S. Constitutional right to privacy – applies to government • Americans with Disabilities Act – applies to employers • Privacy Act – applies to federal government
HIPAA & Article 27-F:Who must comply with both? • Most health care providers in New York State, assuming they transmit health information electronically for purposes of billing or reimbursement.
What happens if both HIPAA & Art. 27-F apply? • HIPAA pre-empts “contrary” state law except if state law is “more stringent” than HIPAA – provides greater privacy protection or gives individuals more rights. • Article 27-F is usually more protective (“stringent”), so you must follow Article 27-F.
General Confidentiality Rule • HIPAA & Art. 27-F generally both prohibit the disclosure of health information about an individual. • HIPAA: covers nearly all personalhealth information (which it calls “protected health information”) • Article 27-F: covers only “HIV-related information.”
Article 27-F:The general rule (cont.) • NO DISCLOSURE: A provider may not disclose any – • HIV-related information obtained while providing health or social service or through a release.
Article 27-F:The general rule (cont.) “HIV-related information” includes – • Had an HIV test (whether positive or negative) • Has HIV infection, HIV related illness or AIDS • Has been treated/is being treated for HIV • Takes medication specific to HIV disease • Is a “contact” of someone with HIV (spouse, sexual or needle-sharing partner)
Article 27-F: HIV Related Information includes: Case study/Poll: In the Waiting Room
Article 27-F:The general rule (cont.) Case Study – waiting room • John & other patients sitting in clinic waiting room. • Clinician enters: “John, please come for your HIV test results.” Did clinician disclose protected HIV-related information? • Yes • No
Article 27-F: HIV Related Information includes(cont): Correct Answer: #1 – Yes. “HIV-related information” includes: • Had HIV test – even if results not disclosed.
“Exceptions” to the General Rule: When Disclosure is Permitted Despite general non-disclosure rule: • Both HIPAA & Article 27-F have “exceptions” that permit sharing HIV information. • Main Article 27-F “exceptions” are outlined in Article 27-F flow chart (see slide below, and hand-out).
Main Article 27-F exceptions permitting disclosure Exceptions covered by this presentation: • Written Release • Disclosures to health care providers Note: Follow Article 27-F rules governing these exceptions, since it is more “stringent” – provides greater protections – than HIPAA.
Exception #1: Written Release • Any and all confidential HIV related information can be disclosed with (proper) written release. • Use DOH-approved release (complies with Article 27-F & HIPAA) OR • Form that’s consistent with it. • DOH forms are in hand-outs(more on that later) • In writing. No oral release! • Voluntary.
Written release (cont.) • Signature – Do not ask client to sign blank or partially completed form. • Who signs form? “Protected individual” if has “capacity to consent”: • Understand and appreciate nature and consequences of proposed disclosure and 2. Make an informed decision.
Approved Release Forms • Authorization for Release of Health Information and Confidential HIV Related Information – DOH 2557 (in handouts) & DOH 2775ES (Spanish – on DOH website), rev’d 2/11 • Authorization for Release of Health Information (Including Alcohol/Drug Treatment and Mental Health Information) and Confidential HIV/AIDS Related Information – DOH 5032 (in handouts) & 5032es (Spanish – on DOH website), rev’d 4/11
Helpful DOH Guidances on Release Forms • DOH wrote “Technical Assistance Bulletins” with FAQs • In Hand-outs • Forms & bulletins available at http://www.health.state.ny.us/diseases/aids/forms/ informedconsent.htm
Article 27-FNo Redisclosure • Remember: Person receiving HIV related information pursuant to release may not redisclose • Person providing HIV related information pursuant to consent usually must provide notice prohibiting redisclosure • Sample Notice Prohibiting Redisclosure is in hand-outs
Article 27-FNo Redisclosure (cont.) • For confidential drug/alcohol patient-identifying information, a Notice Prohibiting Redisclosure is also required • Sample forms: OASAS website www.oasas.state.ny.us/mis/forms
Article 27-FWritten Release Case study/Poll: Release requirements (3 questions)
Article 27-FReleases – Case Study POLL (a) • Sam works at case management program. • Helping client get HIV housing through a City agency. • Sam calls client: “OK to disclose your HIV status to the City agency today? You can sign a release when you come in next week.” Is Sam complying with Article 27-F?
Article 27-FReleases – Case studies(cont.) Possible Answers: • Yes • No
Article 27-FReleases – Case studies(cont.) Correct Answer: #2 – No • Oral authorization to release information never sufficient under Art. 27-F. • Specific HIV release form required before disclosure. Back to poll: prior knowledge
Article 27-FReleases – Case Study POLL (b) What if the client said, the agency already knows my HIV status. It is fine to discuss it with them. Does that allow Sam to discuss the client’s HIV with the agency? • Yes, as long as the agency mentions it first. • No, a written release is still required.
Article 27-FReleases – Case studies(cont.) Correct Answer: #2 – No • Even if the other party already knows a person’s HIV status, a reference to the person’s HIV status counts as a “disclosure.” • Specific HIV release form still required before disclosure. Back to poll: email / fax
Article 27-FReleases – Case studies(cont.) Poll (c) Could Sam have faxed or emailed client a form to sign and send back by fax or email? • Yes, if agency policies permit it. • No – never.
Article 27-FReleases – Case studies(cont.) Correct Answer – #1 Yes, if… Legally, faxed or scanned copy of release form is permitted. Agencies may set own policies. If permit emailing/faxing HIV information, set protocols to avoid accidental breach of confidentiality. 42
Exception #2: Disclosures to Health Care Providers Case scenario/poll. • Referral to medical specialist
Exception #2: Disclosures to Health Care Providers Case Study – Referral to Specialist Jan has seen primary care doctor since HIV diagnosis three years ago. Primary care doctor now plans to refer her to a specialist. Does doctor’s office need HIV release form to disclose Jan’s HIV status to specialist? 44
Exception #2: Disclosures to Other Health Care Providers Possible answers: 1. Yes 2. No
Exception #2: Disclosures to Other Health Care Providers Correct answer: #2 – No. May disclose HIV related information to a health care provider when it is necessary to provide appropriate care or treatment to: 1. The individual 2. His or her child OR 3. A contact (spouse, sex or needle-sharing partner).
Disclosures to Health Care Providers (cont.) Answer (cont.). Here – Knowing Jan’s HIV status is necessary for specialist to give her appropriate care. Some agency policies require written release anyway – consider it good practice. DOH advises CBOs to always seek release for HIV disclosures to health care providers. Find out your agency’s policy. 47
Exception #2: Disclosures to Other Health Care Providers (cont.) • Document the disclosure. • Do not need notice prohibiting redisclosure.
Disclosures to Health Care Providers (cont.) Twist on the same case study/poll: Post-diagnosis referral for follow-up care 49
Disclosures to Health Care Providers (cont.) Poll Jan’s primary care doctor just made initial HIV diagnosis Arranging for follow-up medical care with another health care provider, as required by Art. 27-F Needs written release for the referral? Yes No 50