2004-14 - S_CC 04-14 Health Insurance Portability and by Abbydoc

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									                                  MEMORANDUM
                Department of Aging and Disability Services (DADS)
          Regulatory Services Policy * Survey and Certification Clarification

TO:             Regulatory Services
                Regional Directors and State Office Managers

FROM:           Veronda L. Durden
                Assistant Commissioner
                Regulatory Services

SUBJECT:        Health Insurance Portability and Accountability Act (HIPAA) Notification Letters
                Related to Law Enforcement Referrals - S&CC 04-14

DATE:           December 6, 2004

This is a follow-up to S&CC Memorandum 03-15 dated November 14, 2003. The attachment
includes a notification procedures table and templates for notification letters.

Templates for HIPAA Notification Letters – Revisions

Changes have been made to some of the language in the body of the letters. A sentence has
been added to advise letter recipients how they can request a copy of the investigation report.
An area has been created on the letters to record identifying information about the specific
investigation.

HIPAA Notification Requirements

These requirements are unchanged; continue to use the notification procedures table to
determine when to send a notification letter.

Reporting Disclosures

Continue entering disclosure notice data into the Disclosure Tracking and Accounting System
(DTAS). An updated (October 1, 2004) DTAS user guide is available at:
http://dadsview.dads.state.tx.us/hipaa/dtas.html.

If you have any questions concerning referrals to law enforcement, contact Bevo Morris in
Policy Development and Support at (512) 438-2363.

Refer questions about HIPAA privacy requirements to Frances Kendall, DADS Privacy Officer,
at (512) 438-4787 or Peggy Roll, Assistant General Counsel, at (512) 438-3812.

Sincerely,

[signature on file]

Veronda L. Durden
Assistant Commissioner
Regulatory Services

VLD:ca

Attachment
                                      NOTIFICATION PROCEDURES BY FACILITY TYPE
                                        (Complaints of Abuse, Neglect, and Exploitation)
                                            LAW ENFORCEMENT NOTIFICATION POLICY

    DADS is required to notify law enforcement in cases of abuse, neglect, or exploitation for the following types of facilities.
    Refer to the table below to determine the notification requirement for substantiated and unsubstantiated allegations.

                                     HIPAA RESIDENT/CLIENT NOTIFICATION REQUIREMENTS
When a report has been sent to law enforcement concerning an allegation of abuse or neglect, the Health Insurance
Portability and Accountability Act (HIPAA) privacy rule requires that the resident/client or their personal
representative be informed of the report. Refer to the table below for notification letter instructions.

EXCEPTION RULES
•      If the resident/client is not mentally competent and a personal representative has not been designated or is not
       known, send the notification letter, as appropriate, to the Nursing Home Administrator, Facility Manager, or
       Superintendent of the State School.
•      Do not send the HIPAA letter if, in your professional judgment, sending the letter would place the individual at
       risk of serious harm. If the notice is not sent, document the justification in the survey record.

                Notification to Law Enforcement                                               Notification to the Resident/Client
1. Determine if the allegation is substantiated or                                3.     Notify the resident/client or personal representative
                                                                                         when a referral is sent to law enforcement. Refer to
   unsubstantiated.
                                                                                         the HIPAA Letter column below for appropriate format.
2. Send the appropriate notification to Law Enforcement                           4.     Letters are listed in priority of notification. Choose the
   following regional procedures.                                                        appropriate one.
                                                 If Allegation is                                  Address the HIPAA Letter to:
                                                                Unsubstantiated
                                                Substantiated




                                                                                          If Substantiated                If Unsubstantiated



Facility Type         Notification to
Nursing              DA and                                                                   Resident                         Resident
Facility             municipal law             YES              YES                    Personal Representative         Personal Representative
                     enforcement or
                                                                                        Facility Administrator           Facility Administrator
                     sheriff
ICF-MR/RC            DA and                                                            Personal Representative         Personal Representative
                     appropriate law           YES              YES
                                                                                           Facility Manager                Facility Manager
                     enforcement
State School         DA and                                                            Personal Representative
                     appropriate law           YES              NO                                                                NA
                                                                                           Superintendent
                     enforcement
Assisted             Appropriate law                                                          Resident
Living Facility      enforcement                                                       Personal Representative                    NA
                                               YES              NO
                     agency, if
                                                                                           Facility Manager
                     criminal offense
Adult Day            Appropriate law                                                             Client
Care                 enforcement               YES              NO                     Personal Representative                    NA
                     agency, if                                                            Facility Manager
                     criminal offense
                                    Example 1 - Substantiated Abuse Referral
                                         (Letter to Resident or Client)
                                              [Link back to table.]

                                                                Facility No.
                                                                Visit Exit Date
                                                                Control No.
                                                                (If applicable)
                                                                Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires DADS to report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that you were abused or neglected to (name of law enforcement agency or
agencies) on (date). The law also requires DADS to tell the person who was allegedly abused or neglected about
the report to law enforcement. DADS is sending you this letter to comply with that law. The local police or
prosecutor may contact you to discuss this report.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If you would like a copy of the investigation report, please call the DADS Document Management Unit at
1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
                                  Example 2 – Substantiated Abuse Referral
                                     (Letter to Personal Representative)
                                              [Link back to table.]

                                                                Facility No.
                                                                Visit Exit Date
                                                                Control No.
                                                                (If applicable)
                                                                Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires DADS to report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that (client’s name here) was abused or neglected to (name of law
enforcement agency or agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected, or that person’s personal
representative, about the report to law enforcement. DADS is sending you this letter to comply with that law. The
local police or prosecutor may contact you to discuss this report.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If you would like a copy of the investigation report, please call the DADS Document Management Unit at
1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
                                 Example 3 - Unsubstantiated Abuse Referral
                                       (Letter to Resident or Client)
                                             [Link back to table.]

                                                                Facility No.
                                                                Visit Exit Date
                                                                Control No.
                                                                (If applicable)
                                                                Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires that DADS report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that you were abused or neglected to (name of law enforcement agency or
agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected about the report to law
enforcement. DADS is sending you this letter to comply with that law. With respect to the allegation, DADS staff
completed an investigation on (date) and concluded from investigation findings that the allegation could not be
substantiated.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If you would like a copy of the investigation report, please call the DADS Document Management Unit at
1-800-458-9858.


Sincerely,



[Regions decide who should sign.]
                                 Example 4 - Unsubstantiated Abuse Referral
                                    (Letter to Personal Representative)
                                             [Link back to table.]

                                                                Facility No.
                                                                Visit Exit Date
                                                                Control No.
                                                                (If applicable)
                                                                Investigation ID




Date


Dear ________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires that DADS report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that (client’s name here) was abused or neglected to (name of law
enforcement agency or agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected, or that person’s
representative, about the report to law enforcement. DADS staff is sending you this letter to comply with that law.
With respect to the allegation, DADS staff completed an investigation on (date) and concluded from investigation
findings that the allegation could not be substantiated.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If you would like a copy of the investigation report, please call the DADS Document Management Unit at
1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
                                  Example 5 –Substantiated Abuse Referral
                (Letter to Superintendent, Facility Manager, or Nursing Home Administrator)
                                            [Link back to table.]

                                                                   Facility No.
                                                                   Visit Exit Date
                                                                   Control No.
                                                                   (If applicable)
                                                                   Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires that DADS report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that (client’s name here) was abused or neglected to (name of law
enforcement agency or agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected, or that person’s
representative, about the report to law enforcement. Please file this notification in the resident's records and share
with the personal representative, as you deem appropriate.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If the resident’s personal representative would like a copy of the investigation report, please refer that individual to
the DADS Document Management Unit at 1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
                                   Example 6 - Unsubstantiated Abuse Referral
                                          (Letter to Facility Manager)
                                               [Link back to table.]

                                                                   Facility No.
                                                                   Visit Exit Date
                                                                   Control No.
                                                                   (If applicable)
                                                                   Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires that DADS report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that (client’s name here) was abused or neglected to (name of law
enforcement agency or agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected, or that person’s
representative, about the report to law enforcement. Please file this notification in the resident's records and share
with the personal representative, as you deem appropriate. With respect to the allegation, DADS staff completed
an investigation on (date) and concluded from investigation findings that the allegation could not be substantiated.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If the resident’s personal representative would like a copy of the investigation report, please refer that individual to
the DADS Document Management Unit at 1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
                                  Example 7 –Substantiated Abuse Referral
                               (Facility Manager or Nursing Home Administrator)
                                              [Link back to table.]

                                                                  Facility No.
                                                                  Visit Exit Date
                                                                  Control No.
                                                                  (If applicable)
                                                                  Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires that DADS report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that (client’s name here) was abused or neglected to (name of law
enforcement agency or agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected, or that person’s
representative, about the report to law enforcement. Please file this notification in the client's records and share
with the personal representative, as you deem appropriate.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If the client’s personal representative would like a copy of the investigation report, please have them call the DADS
Document Management Unit at 1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
                                    Example 8 –Substantiated Abuse Referral
                                   (Letter to Adult Day Care Facility Manager)
                                               [Link back to table.]

                                                                  Facility No.
                                                                  Visit Exit Date
                                                                  Control No.
                                                                  (If applicable)
                                                                  Investigation ID




Date


Dear _________:

When the Department of Aging and Disability Services (DADS) receives an allegation that someone was abused or
neglected, the law requires that DADS report the abuse or neglect to law enforcement. This letter is to inform you
that DADS staff referred an allegation that (client’s name here) was abused or neglected to (name of law
enforcement agency or agencies) on (date).

The law also requires DADS to tell the person who was allegedly abused or neglected, or that person’s
representative, about the report to law enforcement. Please file this notification in the client's records and share
with the personal representative, as you deem appropriate.

If you have any questions regarding this notification, please contact (region decides who to contact) at (add contact
information here).

If the client’s personal representative would like a copy of the investigation report, have them call the DADS
Document Management Unit at 1-800-458-9858.

Sincerely,



[Regions decide who should sign.]
Personal Representative
[Link back to table.]
Note: Under HIPAA, “personal representative” is defined differently from the term “responsible party” as defined by
DADS Nursing Facility Requirements for Licensure and Medicaid Certification. Only the client’s personal
representative can exercise the client’s rights with respect to individually identifiable health information. Refer to
the following qualifications that define a personal representative:
Personal Representatives for Adults and Emancipated Minors
If the client is an adult or emancipated minor, the client’s personal representative is a person who has the authority
to make health care decisions about the client and includes:
•   A person the client has appointed under a medical power of attorney, a durable power of attorney with the
    authority to make health care decisions, or a power of attorney with the authority to make health care decisions;
•   A court-appointed guardian for the client; or
•   A person designated by law under section 313.004 of the Health and Safety Code to make health care
    decisions when the client is in a hospital or nursing home and is incapacitated or mentally or physically
    incapable of communication.

Personal Representatives for Emancipated Minors
A parent is the personal representative for a minor child except under the following circumstances:
•   A parent is not the personal representative of a minor child when a court is making health care decisions for the
    minor child or has given the authority to make health care decisions for the minor child to an adult other than a
    parent or to the minor child. Under these circumstances, do not disclose to the parent information about health
    care decisions not made by the parent.
•   A parent is not the personal representative of a minor child when the minor child can consent to medical
    treatment by him or herself. Under these circumstances, do not disclose to the parent information about the
    medical treatment to which the minor child can consent.
•   A minor child can consent to medical treatment by him or herself when:
        on active duty with the US military;
        age 16 or older, lives separately from the parents, and manages his own financial affairs;
        consent involves diagnosis and treatment of disease that must be reported to the local health officer or the
        Department of State Health Services;
        unmarried and pregnant and the treatment (other than abortion) relates to the pregnancy;
        age 16 years or older and the consent involves examination and treatment for drug or
        chemical addiction, dependency, or use at a treatment facility licensed by the Department of State Health
        Services, Substance Abuse Facility Licensure Program;
        consent involves examination and treatment for drug or chemical addiction, dependency, or use by a
        physician or counselor at a location other than a treatment facility licensed by the Department of State
        Health Services, Substance Abuse Facility Licensure Program;
        unmarried, is the parent of a child, has actual custody of the child, and consents to treatment for the child;
        or
        consent involves suicide prevention or sexual, physical, or emotional abuse.

Personal Representatives for Deceased Individuals
The personal representative for a deceased client is an executor, administrator, or other person with authority to act
on behalf of the client or the client’s estate. These individuals include:
• An executor, including an independent executor;
• An administrator, including a temporary administrator;
• A surviving spouse;
• A child;
• A parent; and
• An heir.

								
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