Eye On Managed Care
Guard Against this HIPAA Lapse
Without consent, patient data can't be used for marketing.
BY GIL WEBER, MBA, CONSULTING EDITOR
How many times have you received a free sample of shampoo, breakfast cereal or some other commodity in your mailbox or packed in with the morning newspaper? It's a common tactic used to promote products. Most of us don't give it a second thought.
Recently, however, a Florida patient under treatment for depression received an unsolicited mailing from her pharmacy containing samples of Prozac. The Prozac came with a letter, signed by her physician, that stated in part: "We are very excited to be able to offer you a more convenient way to take your antidepressant medication. Prozac Weekly is the exact same medication as Prozac, but with convenient once-a-week dosing.
"For your convenience, enclosed you will find a FREE 1-month trial of Prozac Weekly. If you wish to try Prozac Weekly, stop your daily antidepressant one day before starting Prozac Weekly, then take only Prozac Weekly once a week thereafter.
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ILLUSTRATION: JON ALLEN |
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"Congratulations on being one step [closer] to a full recovery."
The woman knew she hadn't discussed switching to Prozac with her physician. She also realized the unsolicited mailing meant that someone at one or more companies had her name and some indication of the condition for which she was being treated. Justifiably upset, she filed suit against Eli Lilly (Prozac's manufacturer), Walgreens (the pharmacy that shipped the Prozac), and her physician.
Eli Lilly has apologized. Walgreens is doing something of a tap dance, claiming that they only filled proper prescriptions from doctors and mailed the samples after receiving reimbursement coupons from Eli Lilly. The physicians aren't saying anything. And the FDA is said to be "watching closely."
HARD TO BELIEVE
For years physicians have taken the lead in protecting patient confidentiality. It's been standard operating procedure that sensitive patient information never leaves the office without staff first obtaining consent to release. That's what makes this so unbelievable.
This is the sort of thing that the new HIPAA regulations that go into effect in April 2003 aim to stop. One of the proposed new regulations makes it clear that the release of confidential patient information for "marketing purposes" -- i.e., information used to encourage recipients to purchase a product or service -- is allowable only with a patient's authorization.
In fact, your number-one priority under HIPAA is to protect the patient's privacy. Whether you're speaking with a patient in your examination room or at the front counter, sending medical records by e-mail or fax, or discussing a patient's condition with family members, you must take whatever steps are reasonable and appropriate to make certain that confidential information doesn't get into the hands of those who shouldn't have it and might misuse it.
IS BIG BROTHER WATCHING?
Don't worry -- the HIPAA police won't be camped outside your office door on April 14, 2003, just waiting to bust in and slap you with an expensive HIPAA violation. But you might receive a visit from some "suit" if you get involved in a situation like the one described above. You could be swept up in a big net -- a small fish in a very large and costly legal matter.
As you write your office policies for HIPAA compliance, be sure to include something about the release of confidential information for purposes other than "treatment, payment, and operations" -- the allowable triumvirate. If you're not keeping patient information secure, the time to change is now -- before it's mandated by HIPAA.
Do the right thing!
Gil Weber, Ophthalmology Management's consulting editor, is a nationally recognized author, lecturer and practice management consultant to practitioners and the managed care and ophthalmic industries, and has served as director of managed care for the American Academy of Ophthalmology. You can reach him at (954) 915-6771, gil@gilweber.com, or by visiting www.gilweber.com.