You are the ROI Coordinator. You are having a busy day today and are facing a va

Question

You are the ROI Coordinator. You are having a busy day today and are facing a variety of ROI situations. How should you handle the situations described below and what, if any additional information will you need? If you will need to provide copies of the medical record, explain which forms (information) you would provide. Include dates if appropriate. 7. You receive a subpoena to appear in court and to bring a specific medical record. You are scheduled to testify tomorrow. How will you prepare? What guidelines will you follow in testifying? 8. You receive a subpoena for Mary Taylor’s medical record. When the record is pulled and reviewed, you realized that she is HIV positive. 9. Today, a patient requested a copy of all of his records to take to his attorney. Your policy prohibits records from being released without a 24-hour notice, except for patient care. You explain the situation and the patient becomes extremely hostile.

Explanation / Answer

Release of information (ROI) in healthcare is critical to the quality of the continuity of care provided to the patient. It also plays an important role in billing, reporting, research, and other functions.

Monitoring Receipt of the Request

Organizations can monitor the receipt of a request for information to determine if staff performed at a minimum the following actions:

• Recorded the date and time the request was received

• Identified the date and time the requested information was needed

• Identified to whom the information was to be sent

• Confirmed that the request included a valid authorization

Additional activities that assist in monitoring request receipt include:

• Date and time of receipt is stamped or written directly on the request and recorded in a log so the request can be tracked from its entry into the work queue to its exit as a completed process

• The minimum tracking data were entered appropriately; for example: patient name, medical record number, date of birth, date and time of receipt, name of requestor, due date, date and time of actual completion, method of transmission, and name of employee completing request

Tracking the Request

Many types of logs may be used to record and monitor request activity, from simple binders to specialized software. Release of information software is designed to facilitate tracking requests through their lifecycle. The software can aid management in monitoring staff performance, turnaround times by type of request, and other measures.

The tracking log referred to here is for management of the business process, not the accounting of disclosures function of HIPAA. Logs may also be created using simple database or spreadsheet programs. Electronic systems provide the ability to analyze data easily for monitoring purposes; for example, they can calculate turnaround time by subtracting the date of receipt from the date of actual completion.

Manual logs are appropriate in facilities that have minimal release of information activity. If manual logs are used, dividers assist in finding the request when updating its status. Dividers may be arranged alphabetically by patient last name or by the day of the month the request was received.

Both arrangements have advantages and limitations. A name is easier to find in an alphabetic listing, but it takes more time to enter and aging requests are more difficult to identify. When organized by the day of the month received, all requests are entered sequentially on that one day. The day of receipt can be marked on the actual request as a quick reference point back to the day for updating the status of the request. Outstanding open requests are easier to identify in this latter format.

It is important to ensure that all pertinent information is captured at the time the request is logged. Staff can flag requests for continuing care to distinguish them from the other types of requests routinely received, such as third-party payer, legal, and research requests.

Staff should prioritize requests by the date and time needed as they receive them. Requests for continuity of care require scrutiny in order to assign their appropriate placement in the priority queue. When this information is contained in the body of the request, it can be recorded in a consistent location to aid staff in organizing their work.

Processing the Request

Key elements of quality control in the processing of requests include verifying the completeness of the request, the authority of the requestor, the identity of the patient, and the appropriateness of the information requested.

Review the content. Staff should begin by verifying that requests for information contain all data required by internal policy and state and federal regulations. In all but emergency circumstances, this may include a requirement for a written request for release of medical information. Essential information may include complete and clear:

• Identification of the patient, including contact information

• Identification of the entity to which the information is to be provided, including contact information

• List of information to be released

7. A subpoena is similar to a summons, but it usually requires that you do something or provide some information for a court case. In a subpoena, you may or may not be directly involved in the case as a defendant or plaintiff. The most common example of when you might receive a subpoena is if you are a witness in a court case. Sometimes the document is called a "summons and complaint."

Before responding to the subpoena, the provider or plan should receive evidence that there were reasonable efforts to:

• Notify the person who is the subject of the information about the request, so the person has a chance to object to the disclosure, or

• Seek a qualified protective order for the information from the court.

Guidelines: How To Respond To A Subpoena

• When receiving a subpoena neither ignore nor send records. A therapist does not need to automatically respond to the subpoena and uncritically send the records. However always respond, even by stating something like "I cannot comply". Again, consult with an attorney.

• Therapists should not release confidential and/or privileged information or surrender any documents or records to the person serving the subpoena no matter how aggressive the request is. The subpoena document should be accepted, and the psychologist should then evaluate the situation and, when necessary, obtain legal counsel regarding applicable law and resulting obligations.

• When being served with a subpoena, therapists should neither acknowledge that they know or treated the person whose records are being subpoena. They can simply say: "I am not allowed and cannot disclose whether or not the person noted in the subpoena is known to me or has been under my care. If the person has been my client, I could not provide any information without a signed release from that individual or a valid court order."

• Do not attempt to avoid being served a subpoena. It is unrealistic and probably unprofessional.

• After receiving a subpoena therapists should carefully determine its validity, who initiated it and whether it is in fact a court order.

• Obtaining an authorization to release information from clients is one of the better and simpler ways to deal with subpoenas.

• Contacting the clients, when appropriate, is very important. Sometimes clients are willing to sign an authorization to release information and want the therapist to respond fully to the subpoena.

• Before responding to a subpoena consider the source of the subpoena, client's welfare, other people's welfare, state and federal laws (i.e., HIPAA, Patriot Act, copyright laws), codes of ethics, and, where applicable, your contractual relationships to test publishers.

• Sometimes providing only a summary of the treatment rather than the entire file may be acceptable to clients, attorneys and courts.

• Provide the minimum information necessary. However, some situations may demand that you release the entire file.

• If a signed authorization to release form is included, but the therapist believes that the material may be clinically or legally damaging, he/she should discuss these issues with the client before releasing the records. If the client still insists on such a release, the therapist should note in their records their concerns and should document the discussion with the client. As always, seek consultations in complex situations.

• Be careful with subpoenas that are issued from another state. They may be insufficient to compel a testimony.

• When the subpoena request includes tests' protocols, record forms, raw data or entire test kits, be aware and cautious of copyright laws, your contract with the publisher as well as federal and state laws. Consult with expert counsel and/or explain to the judge, if and when necessary, about the potential conflict between the subpoenas, professional codes of ethics and copyrights laws.

• Do not release the Psychotherapy Notes (if you have any) unless specifically ordered by the court or have received a written authorization to release this part of the records.

• Consult with knowledgeable experts, attorneys or the attorney of your malpractice insurance.

When you're called to testify

Sometimes a subpoena demands your testimony, not just your records. If that's the case, contact the attorney who issued the subpoena and attempt to work out a mutually convenient time for your appearance. Most attorneys will try to accommodate your schedule. You shouldn't have to travel beyond the county in which you live or work. In fact, ask to have your testimony taken at your own office if you feel you'll be more comfortable and won't be distracted.

If you're deposed as a treating physician—not as a defendant—you're entitled to payment for your time—generally by the attorney taking your testimony. In most jurisdictions, you'll receive a nominal appearance fee, your travel expenses, and possibly an amount equal to the value of your lost practice time. When you're deposed as an expert in the case, you can charge an expert witness fee. Depending on your location and specialty, those fees can range from $200 to $600 an hour, or a fixed amount for a half or full day. Once you agree to testify as an expert, however, you must show up. If you don't, you've breached your contract.

If you're subpoenaed to testify at a trial, the rules depend on whether you've been called as a fact witness or as a medical expert. When you're called as a fact witness, you must appear wherever and whenever the trial takes place, and you'll receive no fee. However, the attorney who subpoenaed you should be able to tell you which day you'll testify; and if your office is near the courthouse, he may be able to give you one or two hours notice before you're due. Otherwise you could sit through hours or even days of other people's testimony. If the attorney isn't cooperative, or makes unreasonable demands on your time, you can contact the trial judge (or his clerk) and ask him to intervene on your behalf.

When you're subpoenaed to testify as an expert witness at a trial (or a deposition), your rights are stronger. You can't be compelled to provide expert testimony; you must agree to do so. If you do, you're entitled to charge a reasonable fee for your services. You and the attorney who subpoenaed you should settle on the fee in advance. Once you agree to testify as an expert, however, you must appear in court when called.

When you're called to testify as a treating physician, your situation is more complicated. If you're merely recounting the treatment you provided and your thinking at the time, you may be considered a fact witness, and thus not entitled to an expert witness fee. In that case, however, you should limit your testimony to a factual account of your treatment, as recorded in the patient's chart.

If your testimony goes beyond such an account, and includes your current opinion of treatment rendered by other physicians, you may be considered an expert witness, and thus entitled to an expert's fee. Obviously, you should settle the scope of your testimony beforehand with the attorney requesting your appearance.

8. There are circumstances – including a duty to share certain information, such as reporting notifiable diseases – when you may have to disclose or allow access to information within a patient’s medical record. Not all these circumstances require you to obtain the patient’s consent. Examples are listed in this article but each situation must be assessed on an individual basis – and you must also document your actions and the reasons for doing so, whether you decide to disclose the information or not.

Consent must be obtained from the patient if access to their record has been requested by the HPCSA, an insurance company, employer or people involved in legal proceedings. If no such authority is forthcoming from the patient, no disclosure can be made.

Sharing of information within the healthcare team is usually assumed if the patient, for example, has agreed to being referred to a specialist. In this case, such sharing should be limited to a need-to-know requirement. Patients do have the right to request that certain information be withheld from a team, but many are unaware of this right – they should be made aware through leaflets, notices or verbal means.

Your record-keeping system should have a way of limiting access to information regarding the status of HIV-positive patients. The HPCSA says such information should be treated as highly confidential and specific consideration should be given to sharing this information with other professionals involved in the patient’s care.

Sensitive Information

Certain types of information can only be released pursuant to patient authorization or a court order. The Privacy Standards do not pre-empt existing state and federal laws requiring specific patient authorization or a specific court order for the release, for example, of HIV/AIDS testing records, certain mental health records, alcohol and drug abuse treatment records and genetic testing records. Therefore, those health care providers who otherwise may provide patient records in response to a subpoena may not do so when the subpoena requests such “sensitive” information, unless and until patient authorization or court order is obtained.

9. Denial of amendment. A covered entity may deny an individual's request for amendment, if it determines that the protected health information or record that is the subject of the request:

(i) Was not created by the covered entity, unless the individual provides a reasonable basis to believe that the originator of protected health information is no longer available to act on the requested amendment;

(ii) Is not part of the designated record set;

(iii) Would not be available for inspection under §164.524; or

(iv) Is accurate and complete.

(b) Implementation specifications: Requests for amendment and timely action.

(1) Individual's request for amendment. The covered entity must permit an individual to request that the covered entity amend the protected health information maintained in the designated record set. The covered entity may require individuals to make requests for amendment in writing and to provide a reason to support a requested amendment, provided that it informs individuals in advance of such requirements.

Thereby according to the policy of the hospital unless its a medical emergency the request can be denied on the following basic criteria:

• No advance submission of request

• No medical emergency for the sudden request

• No proper documentation of the request

• No specific requirement of PHI mentioned on request

Conclusion:

Release of information processes are often full of questions and require some evaluation before the request can be fulfilled. For HIM professionals, the biggest challenge comes in finding the balance between guarding privacy, maintaining legal compliance, and facilitating quality patient care through information sharing. There is a fine line between them, and it is the knowledge and expertise of the HIM professional that manages that balance.

Whether release of information processes are managed in-house or through a subcontractor, the routine monitoring of ROI procedures and the quality of work performed is good management practice. An organization can write policies and define procedures, but it has no way to know they are working without performing a periodic check-up. There is no “cookie-cutter” approach to requests of information, but there are specific tasks that can ensure acceptable and compliant performance. These include:

• Comprehensive facility-specific procedures that are documented, current, and easily accessible to staff

• Access to appropriate state and federal regulation references

• Training programs for new staff members

• Education programs for current staff members

• Regular review of work performed to ensure standards are met

• Compilation of performance statistics

• Routine feedback to individual ROI staff regarding performance criteria

• Solicitation of feedback from requestors

Regardless of the method an organization chooses to evaluate ROI performance, it is the organization’s overall management practices that define the foundation for accurate and compliant release of information

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