United States: New CMS Hospice Item Set Reporting Invades Privacy Rights

For admissions on and after July 1, 2014, CMS will require hospices to file detailed reports ( link) for every patient served including every type of personal information (social security number, full name, Medicare HICN, DNR detail, and details about the terminal illness and treatment). While there are many aspects of this reporting requirement that have drawn criticism, one requirement constitutes a significant and unjustified invasion of privacy: Reporting requirements extend to every patient, without regard to whether they are Medicare beneficiaries.

By imposing the requirement to file extensive reports on each patient, CMS imposes real burdens on providers, effectively reducing funds available for patient care and redirecting them toward paperwork. Under Paperwork Reduction Act requirements, CMS estimates that it will only take 19 minutes to input and upload the data to CMS per patient; this of course is a ridiculously low estimate. Compare MedPAC 2014 Report to Congress, p. 316 (assuming higher cost growth for hospice given increasing administrative burdens including hospice item set).

Do hospices face risk in disclosing non-Medicare beneficiary information to the Federal government? Perhaps. Under both state and Federal law, individuals have a right to privacy of their personal information. When providers or other businesses infringe privacy rights, whether intentionally or accidentally (think Target), the government, press, and private individuals rightly object. But when the government overreaches, who polices them?

HIPAA requires providers to take reasonable steps to safeguard against "unauthorized uses or disclosures of the information." 42 U.S.C. § 1230d-2(d)(2). Under HIPAA regulations, a provider may only disclose protected health information if "required by law" or necessary for "health oversight activities." Someone who improperly discloses or obtains identifiable health information of an individual (such as that required to be disclosed in the HIS) can be punished by fines and imprisonment. 42 U.S.C. § 1230d-6(a). HIPAA also ensures that any more protective state privacy laws are not overruled, either by HIPAA itself or any CMS regulations. 42 U.S.C. § 1230d-27(a)(2); 42 U.S.C. § 1320d-2, Note.

Various state laws provide express protection as well. For example, in California, the Confidentiality of Medical Information Act protects an individual's health information from unauthorized disclosure to third parties. Cal. Civ. Code §§ 56-56.37. A provider may only disclose health records where "specifically required by law." Cal. Civ. Code § 56.10(b)(9).

Unfortunately, because the government enjoys qualified immunity for its actions, only the hospices themselves may face privacy lawsuits. Will CMS intervene and indemnify hospices in these lawsuits? Don't count on it.

In the 2009 Health Reform law (PPACA), among thousands of other provisions, Congress authorized CMS to collect data about hospice quality. 42 U.S.C. § 1395f(i)(5). But, the authorization does not expressly allow CMS to collect data about non-Medicare patients. There is no evidence that Congress understood this authorization would be used by CMS to dictate reporting of personal health information for non-Medicare beneficiaries.

When CMS first required hospice quality reporting, it did not extend reporting requirements to non-Medicare patients. 76 F.R. 47302 (2011). But, beginning in 2012, CMS began to hint that it desired "comprehensive" records of hospice service, covering "each patient." 77 F.R. 41548 (7/13/2012). In this 2012 publication, CMS did not propose any new regulation or even policy.

In May 2013, CMS proposed that the "hospice item set" be required to be filed for "each patient admitted to hospice on or after July 1, 2014, regardless of payer." 78 F.R. 27823, 27836 (emphasis added). Although this represents a new invasion of privacy of non-Medicare patients, CMS did not propose to codify this by formal regulation. In July 2013, CMS "finalized" this new requirement, again failing to propose or adopt any regulation to this effect. CMS lawyers know that their own program manuals, including the new HIS manual, are not binding law. Christensen, et al. v. Harris County, et al., 529 U.S. 576, 587 (2000) (agency manuals "lack the force of law").

So, CMS instructs hospices to invade the privacy of non-Medicare patients but CMS will not put the requirement into the regulations. If hospices fail to report such information on even non-Medicare beneficiaries, CMS plans to dock hospices by two percent of all FY 2015 Medicare reimbursement. 42 C.F.R. § 1395f(i)(5) (authorizing reduced reimbursement).

This new reporting requirement represents significant abuse of the rulemaking process. If CMS is going to invade the privacy of non-Medicare patients, it should follow standard rulemaking procedures and accept and respond to comments on this specific practice.

In April 2014, CMS issued some FAQs related to the hospice item set. Question 4 asked whether privacy laws, including HIPAA, affect the ability of hospices to disclose personal health information on non-Medicare patients. CMS responded stating that:

"By virtue of the regulation text, the described data disclosure is required by law, and therefore permitted under the HIPAA Privacy Rule."

This statement by CMS is false in that the required disclosure of non-Medicare patient information is not required by any law at all – not by PPACA or any other statute from Congress and not even by any CMS regulation. CMS' requirement is grounded only in a manual provision discussed obliquely in the Federal Register publications in 2013. CMS has never addressed the effect of state law protections for such information.

This initial foray by CMS into required submission of data by health care providers on non-Medicare patients could reflect a new intent by CMS to gather medical information on all Americans with regard to any medical condition.

If CMS can require Medicare hospice providers to provide information on all hospice patients, what would prevent CMS from requiring all other health care providers who care for Medicare beneficiaries to provide data on all of their patients?

If Congress intends to allow such an invasion of privacy, it should do so expressly and not allow its agencies to act in this indirect manner.

We can then decide through elections if this is the government we want.

So what should hospices facing this predicament do?

There are some options, none very attractive:

To mitigate this risk, hospices may want to consider giving patients express written notice of the required disclosure.

Here is an example:

Please take notice that the Centers for Medicare and Medicaid Services (CMS) has imposed a requirement that within 14 days of admission, hospices must report detailed personal information for every hospice patient to CMS including name, social security number, HICN (if available), diagnosis, medications, DNR wishes, and treatment plan. Upon discharge, hospices must file a discharge report. CMS asserts that it will use this information to assess the quality of hospice care, though patients and their representatives are not invited to submit information. This hospice reporting requirement is mandatory. Per CMS, any hospice that fails to comply faces an automatic reduction in all Medicare payments in addition to potential further sanctions up to and potentially including termination of Medicare license status.

If you wish to object to this reporting requirement, please contact CMS or your Congressional representatives as identified below:

CMS
Call them at:
(410) 786-9994
or write to them at:
CMS–1449–P, P.O. Box 8010
Baltimore, MD 21244–8010

LIST SENATORS AND CONGRESSMEN

Another alternative is for hospices to file suit seeking to enjoin this requirement. Such a suit would have merit, but could get bogged down in the DC Federal court.

Another alternative is for hospices to refuse to comply as to non-Medicare beneficiaries. If and when CMS attempts to punish a hospice for not complying by reducing compensation, hospices could challenge the reduction in court, as the requirement to report personal health information for non-Medicare beneficiaries is not based upon any statute or regulation.

Rather than force hospices into this untenable predicament, CMS should reconsider this requirement immediately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
3 Dec 2018, Other, Los Angeles, United States

National Contract Management Association’s Government Contract Management Symposium

20 Feb 2019, Seminar, Orange, United States

The annual seminar addressing changes and developments in state and federal wage and hour laws is a unique one-day program and hundreds of California employers, personnel managers, controllers, attorneys, payroll managers, and supervisors attend each year.

21 Feb 2019, Seminar, Orange, United States

The seminar is designed to provide a guide to Human Resource Officials, Personnel Specialists, Consultants, Supervisors and other management officials through the ever-increasing maze of state and federal employment discrimination laws.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions