negotiating roadblocks in handling medical records of drug seeking patients

Negotiating Roadblocks In Handling Medical Records

of Drug Seeking Patients

April 3, 2009

OBJECTIVES

• Identify regulatory influences • Provide guidance for documenting

behaviors and drug seeking diagnosis• Review practices for sharing patient

drug seeking information • Identify practices for disclosing drug

seeking behavior to law enforcement

DISCLAIMER

• The information provided in this presentation does not constitute

legal advice and is intended to be used for guidance. Resources for questions include:

•Privacy Officer•Risk Manager

• If you require legal advice, please consult with an attorney.

DRUG SEEKING BEHAVIOR

Refers to a patient's persistent, manipulative, and/or demanding behavior to obtain medication. It may include obtaining or attempting to obtain a prescription drug, procure or attempt to procure the administration of a prescription drug by fraud, deceit, willful misrepresentation, forgery, alteration of a prescription, willful concealment of a material fact, or use of a false name or address. Seeking excessive prescribed drugs is a crime when it involves fraud, forgery, deception or subterfuge.

DRUG ABUSE

• Drug abuse means the use of a psychoactive substance for other than medicinal purposes which impairs the physical, mental, emotional, or social well-being of the user. 42 CFR, part 2, Subpart B 2.11.

LAW ENFORCEMENT

• Law Enforcement Agency– City, County, Indian Tribe, State, or Federal

• Law Enforcement Official/Officer– Police Officer– Sheriff’s Deputy– Medical Examiner– Parole or Corrections Officer

45 CFR § 164.501; WI §§ 165.83(1)(b); 175.46(1)(g); 967.02(5)

WHAT’S HAPPENING

• Fifteen people have died of prescription drug overdoses in Portage County since Jan. 1, 2006

• Milwaukee Journal Sentinel story – “Legal Drugs, Lethal Access”

PRESCRIPTION DRUGS WITH HIGHEST POTENTIAL FOR ABUSE

• Oxycontin• Valium• Vicodin• Percocet• Xanax• Dolophine

PATIENT OR CRIMINAL

• To Health Care Provider– Patient- With Patient Rights

• To Law Enforcement – Criminal

Healthcare providers are NOT an arm of law enforcement!

REGULATORY INFLUENCES

• 45 CFR § 164.512(f)(5) – HIPAA Privacy Rule

• WI § 146.82(2)(a)5 – Confidentiality of Patient Health Care Records

• WI § 51.30 – State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act

REGULATORY INFLUENCES

• WI § 450.11(7) – Prescription Drugs & Prescription Devices – Prohibited Acts

• WI § 961 – Uniform Controlled Substances Act

IMPORTANT CAVEAT

• Report information that is required or permitted BUT

• Disclosure of other PHI – e.g. patient chart – goes under standard analysis

DISCLOSURES vs. REPORTS

• Mandatory reports: figure out to whom and how much

• Permissive reports: figure out scope• If no report required or permitted,

follow general rule: no disclosure unless:– authorized by patient OR – permitted under interface of HIPAA and

Wisconsin law.

ENCOUNTER PRACTICES FOR VERIFICATION OF IDENTITY

• Verification of patient identity by a picture ID or other identifying information

• Suspicion patient is falsely presenting

• Red Flag Rules

ENCOUNTER DOCUMENTATION

If suspect patient is exhibiting drug seeking behavior, document• Reason, objective and subjective• Provision of appropriate medical

screening examination and stabilizing treatment if patient is receiving treatment in ER or appearing to need emergency care in another setting

ENCOUNTER DOCUMENTATION

• Results of positive blood or urine drug screen tests

• Review of past history of drug seeking behavior as documented from previous encounters

• Referral to patient’s primary provider or others

ENCOUNTER DOCUMENTATION

• Clear communication with patient about behavior, treatment plan, medication needs, alternative treatment instead of medication, and education

ENCOUNTER DOCUMENTATION

Final diagnosis of drug seeking behavior should not be documented unless there are strong objective findings to support the diagnosis.

ENCOUNTER DOCUMENTATION

Place an alert on the record to heighten

awareness of the patient’s drug seeking

behavior to communicate to others in the

organization. • Limit access to those with a “need to know”

DISCLOSURE TO PROVIDERS

• Permitted for treatment & payment purposes when direct patient-provider treatment relationship– Limits on mental health and alcohol &

drug abuse information

DISCLOSURE TO PROVIDERS

• Notifying external health care providers and/or emergency departments of patient “making the rounds”– Organizational decision based on risks

and benefits

DISCLOSURES BETWEEN HEALTH PLANS & PROVIDERS

• Health care providers to health plans– Treatment– Payment– Health Care Operations

• Health plans to health care providers– Payment and health care operations– Provider decision to use the information

DISCLOSURES TO LAW ENFORCEMENT

• Crimes on the premises– Contact may be made with limited

information• Individual’s name• Circumstantial information

– HIPAA and Wis. Stat. 51 permit reporting

– Wis. Stat. 146 unclear• organization decision

Anything more requires authorization by the patient or a court order

DISCLOSURES TO LAW ENFORCEMENT

• Crimes on the premises– Patient steals drugs from facility

– Patient steals prescription pad from facility

– Patient presents to retail pharmacy with an altered prescription

– Patient threatens harm to provider/staff

DISCLOSURES TO LAW ENFORCEMENT

• Questionable reportable crimes on the premises– Patient is a licensed healthcare provider

– reporting to licensing board

– Patient is pregnant and behavior a potential threat to unborn child

– Patient has illegal drugs on his/her person

DISCLOSURES TO LAW ENFORCEMENT

• Reportable crimes on the premises seek guidance– Patient presents to provider with false

or misrepresentation of name

– Patient presents to provider with another person’s name (identity theft)

– Patient denies care for condition by other providers; records indicate care episodes elsewhere

DISCLOSURES TO LAW ENFORCEMENT

• Providers are required to report to law enforcement officials and/or the medical examiner, the death of any individual who has died under the following circumstances:– unexplained, unusual, or suspicious

circumstances, homicides, suicides, deaths due to poisoning, whether homicidal, suicidal, or accidental.

DISCLOSURES TO LAW ENFORCEMENT

• Providers are required to disclose upon request patient PHI (health records) to medical examiners responsible for completing a medical certificate or investigating the death.

INQUIRIES FROM LAW ENFORCEMENT WITH NO BACKUP

• If general patient: may disclose facility directory information to verified law enforcement asking for patient by name, unless opted out.

• If mental health/substance abuse/DD: can neither confirm nor deny.

INQUIRIES WITHOUT BACKUP(CONTINUED)

• Doesn't matter if:– Patient is allegedly an illegal alien– Patient gave a false name– Patient is suspected of committing a

crime (unless imminent danger)– Patient is suspected of involvement in a

car crash– Information is somehow already out

there

NON-REPORTABLEPATIENT BEHAVIOR

• Patient presents altered prescription to external pharmacy (crime on premise of external pharmacy)

• Patient violates terms of established “pain contract”

ORGANIZATION DOCUMENTATION

• Guidance or policy & procedure– Provides direction and awareness to

workforce – Informs workforce what to disclose– Addresses disclosures not involving

PHI– Prevents over and under reporting

ORGANIZATIONAL TRAINING

• Registration staff• Health Information Management

staff• Treatment staff• Ambulance workforce

Scenario 1

Patient steals drugs from mental health facility.

–Report ?

–Disclose?

Answer to Scenario 1

Provider may report as a "crime on the premises."

WI § 450.11(7)(a)

Scenario 2

Patient steals a prescription pad from mental health facility.

–Report ?

–Disclose?

Answer to Scenario 2

Provider may report as a "crime on the premises."

WI § 450.11(7)(a)

Scenario 3

Patient presents to the pharmacy with an altered/forged prescription.

– Report ?

– Disclose?

Answer to Scenario 3

Pharmacist may report as a crime on the pharmacy premise and may provide a copy of the altered prescription based on the organization’s policy for doing so.

WI § 450.11(7)(a)

Scenario 4

Provider notified that patient presented to pharmacy with an altered/ forged prescription.

–Report ?

–Disclose?

Answer to Scenario 4

Pharmacist may report as a crime on the pharmacy premise and may provide a copy of the altered prescription based on the organization’s policy for doing so.

WI § 450.11(7)(a)

Scenario 5

Patient presents to provider with false or misrepresentation of name.

–Report ?

–Disclose?

Answer to Scenario 5

Provider may report as a crime on the premise. Refer to Local Privacy Officer, Risk Manager, administrative leader, or administrator-on-call or System Privacy Officer/Risk Manager. Legal Counsel review as needed.

WI § 450.11(7)(a)

Scenario 6

Patient presents to provider with another person’s name (identity theft).

–Report ?

–Disclose?

Answer to Scenario 6

Provider may report as a crime on the premise. Refer to Local Privacy Officer, Risk Manager, administrative leader, or administrator-on-call or System Privacy Officer/Risk Manager. Legal Counsel review as needed.

WI § 450.11(7)(a); 18 USC § 1028(a)(7); WI § 943.201; WI § 943.203

Scenario 7

Patient is a licensed health care provider and commits drug seeking crime.

–Report ?

–Disclose?

Answer to Scenario 7

Yes. Refer to scenarios above or regulations; questionable report to state licensing board and to be determined by administration/ leadership. Refer to System Privacy Officer/Risk Manager and Legal Counsel prior to reporting to licensing board.

WI §§ 450.11(7)(a), 146.82(2)(a)5, 440.042(2)

Scenario 8

Patient denies care for the condition by other providers; access to external records (integrated record system/regional health information network) indicates similar care episodes elsewhere.

–Report ?

–Disclose?

Answer to Scenario 8

Questionable as crime on premise. Provider. Refer to Local Privacy Officer, Risk Manager, administrative leader, or administrator-on-call or System Privacy Officer/Risk Manager. Legal Counsel review as needed. WI § 450.11(7)(a)

Scenario 9

Patient has illegal drugs on his/her person.

–Report ?

–Disclose?

Answer to Scenario 9

Questionable. Organization must develop policy for process/disposal. To be determined by organization policy.

Multiple

Scenario 10

Patient is pregnant and drug seeking behavior a potential threat (abuse/harm) to unborn child.

–Report ?

–Disclose?

Answer to Scenario 10

Questionable. Refer to System Privacy Officer/Risk Manager and Legal Counsel.

WI § 48.981(3)(a)1

WI § 146.82(2)(a)11

Scenario 11

Patient threatens harm to provider/staff in drug seeking behavior.

–Report ?

–Disclose?

Answer to Scenario 11

Questionable. Based on perceived severity of threat of harm, immediately reportable by the provider, staff member, security, etc.

Dangerous Patient Standard (Schuster vs. Altenberg)

Scenario 12

Law enforcement officials request a copy of an altered/forged prescription presented to the Pharmacy (not the original prescription).

–Report ?

–Disclose?

Answer to Scenario 12

Questionable; 146.82 written broadly - Prescription (copy) a health record as covered under WI § 146.82? Provider. Refer to Local Privacy Officer, Risk Manager, administrative leader, or administrator-on-call or System Privacy Officer/Risk Manager. Legal Counsel review as needed. Organization will need to determine status of prescription as part of the patient’s legal health record as it is not clearly defined in § 146.82.

WI § 450.11(7)(a) and § 146.82

Scenario 13

Patient violates terms of established/known “pain contract.”

–Report ?

–Disclose?

Answer to Scenario 13

No. Violation of a pain contract is not a crime. Provider may consider reporting violation to provider who issued the pain contract.

Scenario 14

Provider contacted by patient’s health plan regarding multiple prescriptions prescribed by and filled by other providers.

–Report ?

–Disclose?

Answer to Scenario 14

No. Provider must make a decision as to how the information shall be used or retained as part of the patient’s health record. Not necessarily an indication of drug seeking behavior.

PRESENTERS

Sarah Coyne, JDQuarles & Brady

sarah.coyne@quarles.com

Chrisann Lemery, MS, RHIA, FAHIMAWEA Trust clemery@weatrust.com