CONFIDENTIALITY

CONFIDENTIALITY A BOARD PERSPECTIVE MICHAEL A MONÉ JD KY BOARD OF PHARMACY

Disclaimer • This is not legal advice. • Opinions expressed here are my own. • Opinions are not binding on any employer, past, present or future. • Opinions are not binding on me as I reserve the right to change my mind.

Purpose • The Board of ________ serves the State or Commonwealth to promote, preserve, and protect the public health, safety, and welfare through effective regulation of the practice of __________.

Confidentiality • Privacy v confidentiality. • one implies that the person has a right not to disclose. • the other instructs that those with information are not to disclose what is known or under what circumstances disclosure may occur or when information must be disclosed. • basically do what your Mom told you to do: • Don’t tell secrets.

Public / Professional Duties • Distinction between public duty and professional duty. • How does the Board accomplish its mission? • What is the role of professional associations?

Right of Public Access • “free and open examination of public records is in the public interest…” KRS 61.871 • “statute exhibits a general bias favoring disclosure.”826 SW2d 324,328 • statute facilitates inspection • statute generally defines time frames

Public Records • “all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, software..possession of agency” • “only to records which are in existence… does not impose an obligation on agencies to create…”

Public Records • US Supreme Court in Forsham and Kissinger “an agency must first either create or obtain a record as a prerequisite to it becoming an ‘agency record’ within the meaning of the (FOIA)”

Agency Forms • What data is collected? • What data is actually needed? • Where do you store the data? • How do you retrieve the data? • Is the form a requirement of a contractor? • Does an exemption exist?

Exemptions • “personal nature…invasion of personal privacy.” • “prospective location of a business or industry…” • “test questions, scoring keys, and other examination data before it is to be given or...

Exemptions • …if it is to be given again.” • “agencies involved in administrative adjudication, or in the process of investigation… • …record open after enforcement action is completed or a decision is made to take no action.”

Inspection • on-site • copies • agency response within 3 days • state specific exception if agency denies all or any part of request • Circuit Court for review

Costs and Fees • disruption of the operation of the office may constitute a basis for denial. clear and convincing evidence standard • charges per page and search time • written request and advance payment

General Requirements • Suitable facilities • Time for inspection • Official custodian • Rules and Regulations • principal office and office hours • title and address of custodian • fees • procedure to follow to request records

Use of the Records • Commercial purpose • may include staff time • Non-commercial purpose • no consideration for staff time

Privacy • balancing of the interests • look to expectation of individual • reasonableness • “the question of whether an invasion of privacy is “clearly unwarranted” is intrinsically situational, and can only be determined within a specific context.” 826 SW 2d 324, at 327, 328

Privacy • Social Security Number • Date of Birth • Mother’s Maiden Name • Place of Birth • Home address • Home phone number • Marital Status

Licensure • Application form • Examination preparation • potential conflict with open meetings laws • Examination grading • Examination contractor • breath of exemptions

Discipline • Complaint • Investigative Report • Probable Cause Hearing • Board Hearing • Formal Hearing • Final Order

Post Discipline Issues • Board Newsletters • What information is published? • Board Web Sites • How is the information organized? • HIPDB • Is this an adequate method for the public to be informed?

Ex parte Communications • Tendency upon the part of professionals to look at the Board as a vehicle to protect them. • Purpose is to protect the public from the professionals. • If the issue is to be decided, discipline or substantive, must be done on the record.

HIPAA • Health Insurance Portability and Accountability Act • Passed by Congress in 1996 • Four Areas • EDI Transactions ad Code Sets • National Health Identifiers • Security Requirements (data integrity) • Privacy Rules…….April 14, 2003

HIPAA • Main Provision • “ A covered entity may not use or disclose protected health information , except as otherwise permitted or required” • Covered Entity • Health Care Plans • Health Care Providers (who transmit health information in electronic form)

HIPAA • What’s Covered? • Individually identifiable health information • Demographic Information • Created or received from a health care provider • Collected from an individual

HIPAA • The issue of identity and de-identification • Name • Address • Relatives • DOB • Tele # • SSN • Medical Record # • Etc

HIPAA • Consent • Rules • Notices • Posting • Rights • Complaints

HIPAA • New administration rules • Comment period • Dramatic changes • Claims: • Strengthen notice provisions and remove consent requirements hindering access to care. • Provides for inter-professional communications, retains minimum necessary.

HIPAA • Claims: • Assures parental access to children’s records. State laws govern parental access to records. • Prohibits use of records for marketing – must have authorization before marketing. • Administrative simplification by reduction to one authorization for permission for a specific use or disclosure that otherwise would not be permitted.

HIPAA • HHS Website • http://aspe.hhs.gov/admnsimp/ • http://hhs.gov/ocr/hipaa/finalreg.html • HIPAA News • http://www.hipaadvisory.com/news

Questions • Thank you

CONFIDENTIALITY