Nursing Home Privacy: Know Your Rights and Limitations of HIPAA Laws
Demographic shifts are occurring across all ages in the United States. One of the shifts is among elderly people. Research estimates that the number of Americans aged 65 or older will grow from 46 million to over 98 million by 2060, which will account for 24% of the total population in the United States.
There is also a prediction of a 75% increase in the number of elderly people who need nursing homes in 2030, rising from 1.3 million to 2.3 million. Due to the increase in the elderly population, along with the increase in those needing nursing homes, Social Security and Medicare expenses will increase from 8% of gross domestic product to 12% by 2050.
One of the things that people are using to help the elderly is Long-Term Support and Services (LTSS). Though LTSS provides for all people who need assistance in daily life, the elderly are one of the largest groups that it focuses on and nursing homes are a large part of the LTSS institutions. In 2014, 1.5 million people received LTSS in nursing homes. Unfortunately, LTSS can be expensive. For a private room in a nursing home, the average annual cost was $92,000. A shared room cost an average of $82,000. As a country, we spent $399 billion on LTSS in 2013, most of which was public spending such as Medicaid and Medicare.
The Health Insurance Portability and Accountability Act (HIPAA) created regulations about privacy in healthcare. The purpose of HIPAA is to protect the security of people’s health information and establish individual rights with health information. It requires entities to provide individuals with their personal health information upon request, outlines specifics about who can access the individual’s information, and prohibits medical professionals from disclosing private information to anyone who is not authorized. As with all aspects of healthcare, nursing homes and their residents are strongly affected by HIPAA rules.
HIPAA Violations and Enforcement
Unfortunately, HIPAA violations are common. People will take advantage of the fact that not many patients know their rights under HIPAA, especially in nursing homes. HIPAA violations can be civil or criminal violations. HIPAA violations are divided into three categories:
- Reasonable Cause
- Willful neglect
The penalties for civil HIPAA violations are not as severe as criminal violations. The fines vary from $100 per violation for unknowing to $50,000 for uncorrected willful neglect. Each violation has an annual maximum for repeated violations. No civil HIPAA violation penalties include imprisonment.
Criminal HIPAA violations are more serious and the Department of Justice deals with them. People or organizations that knowingly violate HIPAA may face a fine of up to $50,000 and imprisonment for up to one year. Violations that occur under false pretenses warrant a fine of up to $100,000 and up to five years in prison.
The most severe criminal HIPAA violation is intending to transfer, sell or use one’s private health information for commercial advantage, personal gain, or malicious harm. The penalty includes a $250,000 fine and up to ten years in prison.
HIPAA Concerns in a Nursing Home Setting
HIPAA plays a special role in nursing home settings, as there are specific aspects of HIPAA that come up in nursing homes. One of the most significant HIPAA complications is disclosing information to third parties. Many elderly people in nursing homes have family members who generally make their decisions for them, especially if they are struggling with cognitive decline. HIPAA regulations outline that only certain people may access another person’s healthcare information, so it can be complicated determining whether the family member has the legal right to see the elderly person’s healthcare information.
Turnover can also cause HIPAA concerns, in both staff and residents. Nursing homes have an extremely hard time retaining staff, and the industry has been experiencing a worker shortage for years. HIPAA can be difficult with entry-level employees because they only have a right to certain information.
Poorly trained or monitored staff can also lead to issues with HIPAA. Some nursing homes may not take the time to completely explain HIPAA rules to their staff members, which increases the chance that they will unintentionally violate HIPAA at some point. It is important for nursing homes to establish a status quo that prioritizes resident privacy.
If someone does violate HIPAA, intentionally or unintentionally, companies rarely hold him or her accountable. Even if a peer or manager discovers their violation, they may not formally punish them. To discourage privacy violations in a nursing home, there must be clear consequences for those who fail to adhere to the HIPAA regulations.
Additionally, there is little to no recourse for the patient and family. The victims of the HIPAA violation should have help determining how to proceed, and hold the violator accountable for their actions. Unfortunately, most people do not fully understand their HIPAA rights and many medical professionals do not explain them.
How to Protect Your HIPAA Rights
With so few HIPAA violations punished, it is important to know how to protect your privacy rights. First and foremost, you have a right to your medical records and can ask for them at any time. Be assertive with the staff. Do not be afraid to make it clear that you know your rights under HIPAA, as this will discourage anyone from violating your privacy rights.
Nursing Home Privacy & HIPAA Violation Attorney
Elderly people in nursing homes are especially vulnerable. Keeping their medical records private is a vital part of maintaining financial and physical safety and security. If you or a loved one experiences a HIPAA rights violation, you deserve to hold the guilty party accountable. The attorneys at Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A. can help you understand your rights and pursue a case if there is a violation. Contact us for more information.