Know Your Rights and Limitations of HIPAA Laws
Demographic shifts are occurring across all ages in the United States, including 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, accounting for 24% of the total population.
Projected Increase in Elderly Individuals Needing Nursing Homes
The number of elderly people who need nursing homes is also predicted to rise 75% from 1.3 million to 2.3 million in 2030. Due to the increase in the elderly population and the increase in those needing nursing homes, Social Security and Medicare expenses will increase from 8% of gross domestic product to 12% by 2050.
According to the United States Census Bureau, the number of older adults in the United States is expected to grow from 56 million in 2020 to over 94 million by 2060. With the rising aging population, the demand for Long-Term Support and Services is expected to increase.
Importance of Long-Term Support and Services (LTSS)
As the world’s population ages, the need for Long-Term Support and Services (LTSS) continues to grow. This support is essential not only for the elderly who still want to maintain an independent life but for anyone who needs daily assistance with their lives. However, with so many people requiring assisted living, LTSS statistics become crucial factors in the quality of care.
According to the new LTSS State Scorecard, the costs associated with LTSS have increased by 36% from 2000 to 2019. LTSS is funded through Medicaid, Medicare, and out-of-pocket expenses. The Scorecard projects that by 2029, the average cost for a private room in a nursing home will reach an estimated $137,774 annually. Informing people about these rising costs is crucial in helping them plan accordingly and allocate the necessary funds.
Impact of the Health Insurance Portability and Accountability Act (HIPAA)
The Health Insurance Portability and Accountability Act (HIPAA) created healthcare privacy regulations. The purpose of HIPAA is to protect the security of people’s health information and establish individual rights to 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:
- Unknowing
- 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 knowingly violating HIPAA may face a fine of up to $50,000 and imprisonment for up to one year. Violations under 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
Disclosing Information to Third Parties
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 to determine whether the family member has the legal right to see the elderly person’s healthcare information.
Tackling Turnover Challenges
Turnover can also cause HIPAA concerns for 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.
The Impact of Staff Training and Monitoring
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. Nursing homes need to establish a status quo that prioritizes resident privacy.
Holding Individuals Accountable
If someone violates HIPAA intentionally or unintentionally, companies rarely hold them accountable. Even if a peer or manager discovers their violation, they may not formally punish them. There must be clear consequences for those who fail to adhere to HIPAA regulations to discourage privacy violations in a nursing home.
Support for Patients and Families
Additionally, there is little to no recourse for the patient and family. The victims of HIPAA violations 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, knowing how to protect your privacy is important. 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 clarify 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 vital to 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 can help you understand your rights and pursue a case if there is a violation. Contact us for more information.
Michael Dansack is a Partner with GT&B. Mike began his career at GT&B in 1993 and has created a strong track record of protecting his clients’ rights in issues such as bankruptcy, probate and estate planning, and general practice.
