HIPAA (Continued from page 21)
ii) for the purpose of a healthcare fraud and abuse detection or compliance.
With regard to 506(c)(4)(i) healthcare operations is defined in 45 CFR §164.501, and paragraphs (1) and (2) of section 164.501 provide as follows: (1)Conducting quality assessment and improvement activities, including outcomes, evaluations and develop- ment of clinical guidelines, provided that the obtaining of gen- eralizable knowledge is not the primary purpose of any studies re- sulting from such activity; population-based activities relating to improving health or reducing healthcare costs, protocol develop- ment, case management and care coordination, contacting of healthcare providers in patients with information about treatment alternatives, and related functions that do not include treatment;
(2)Reviewing the competence or quali- fications of healthcare professions, evaluating practitioner and pro-
vider performance, health plan per- formance, conducting training programs in which students, train- ees, or practitioners in areas of healthcare learn under supervision to practice or improve their skills as healthcare providers, training of non-healthcare professionals, ac- creditation, certification, licensing, or credentialing activities;
On its face, this language would not appear to encompass allowing health care providers’ defense attorneys to obtain in- formation from other health care providers. With regard to 506(c)(4)(ii)’s excep-
tion regarding fraud and abuse, this language is a subset of paragraph (4) of the definition of healthcare operations in 164.501. Paragraph (4) of section 164.501 provides in its entirety as follows: Conducting or arranging for medi- cal review, legal services, and auditing functions, including fraud and abuse detection and compli- ance programs.
Obviously, the federal Department of Health and Human Services (HHS) de- cided to use only the portion of paragraph (4) dealing with fraud and abuse and not
the broader language which clearly would encompass a medical negligence claim. Since paragraph (4), in its complete form, would encompass defense contact for purposes of defending a medical malprac- tice claim, HHS’ decision to use only a portion of the language of (4) is further indication that paragraphs (1) and (2) of section 164.501 do not encompass such an activity.
Any doubt that 506(c)(4) does not en- compass disclosure of information from one health provider to another is even further reduced by the official commen- tary from HHS published in the Federal Register for the final HIPPA rules. (vol- ume 67, no. 157, pages 53182 et seq., August 14, 2002) The relevant language is at pages 53216 and 53217: In addition, many commenters
requested that the Department ex- pand their proposed provision to allow for disclosures for any type of healthcare operation of another covered entity, or at least additional activities beyond those specified in the proposal.
Some health plans
comment that they may need in- (Continued on page 24)
22
Trial Reporter
Spring 2003
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