HIPAA And The Dangerous Flea Bargain

Years ago, I represented a young man who had lost his job. “Idle hands” being “the devil’s workshop”, he got into drug trafficking while our case was pending.  In the process, he accidentally blew up a car stuffed with cocaine.  Reporting the fiasco to me, he jubilantly told me not to worry as he had worked out a great “flea bargain” with the “feds.”

Negotiated settlements can be the best way out of a legal problem.  They are especially beneficial when a Board such as the Psychology or Medical Board threatens a health care provider with the loss of a professional license.  Often these Boards will allow the provider to keep his license if the licensee pays a small fine and gets additional training.   But sometimes settlements, like my client’s car, can blow up on you.  Take the case of a Virginia psychiatrist accused of violating a patient’s privacy. 

In September of 2007, Dr. Jones* began treating a female highway patrol officer who had been beaten, kidnapped and raped by three men.  Although he diagnosed her with post traumatic stress disorder, he wrote that she was “not a danger to the public.”

Later that year, the patient filed a complaint with the doctor’s employer about his behavior.  Shortly after receiving her complaint, Dr. Jones’ employer fired him.

On January 30, 2008, other physicians had the trooper involuntarily committed to a mental health facility.  The facility discharged her on February 1, 2008.  Dr. Jones heard rumors about the trooper’s hospitalization.  On February 4, 2008, he contacted “a friend” and “co-worker” of the trooper and told her about the involuntary commitment.  He made a second call on February 7, 2008 to another of the trooper’s “co-workers”.  He again reported that the trooper had been involuntarily committed to a mental health facility. 

Based on Dr. Jones’ reports, the Highway Patrol suspended the trooper.  However, once the Patrol’s doctor found her to be “fit for duty”, the Patrol sent her back to work. 

When the Virginia Medical Board learned of Dr. Jones’ disclosures, it prosecuted him for violating state confidentiality laws.  An “informal” conference took place.  Such conferences often allow the Board and licensee to negotiate licensure issues.  The Board found that, “Despite direct and repeated questioning,” Dr. Jones could not “justify” violating the trooper’s privacy.  His only reason for calling her friends was that he was worried because she had a gun.  The Board fined Dr. Jones $5,000 and ordered him to take 8 hours of training in ethics.  Dr. Jones did not appeal the ruling.  He must have been very relieved to keep his license.  His relief would be short-lived. 

In 2011, the US Justice Department filed criminal charges against the doctor for violating HIPAA.  Prosecutors argued that his discussions with the troopers’ co-workers were in retaliation for her complaints against him.  Surprisingly, after the prosecution presented its case, a federal judge dismissed the charges.

HIPAA allows health care providers to release information that is:

1.       Necessary to prevent a “serious and imminent threat” to others IF

2.      The threat is made to a person reasonably able to lessen the threat – this may include law enforcement, family members, the target of the threat, or others.

So what can we learn from Dr. Jones’ case?

1.      When deciding whether to accept punishment offered by a licensing board, it’s important to consider the possibility of a subsequent federal charge related to the case.  It is likely that the HIPAA police relied in part on the Virginia Medical Board order when deciding whether to prosecute Dr. Jones.

2.      Credibility issues arise when a defendant’s words contradict earlier written statements.  Dr. Jones claimed that the patient was a threat after he wrote in her medical record that she was NOT a threat. 

3.      It’s important to report threats to the proper person.  Dr. Jones should have expressed his concerns to the trooper’s immediate supervisor, not to her “friends.”

4.      Only witnesses with first-hand knowledge of a threat should report it.  The doctors who committed the trooper were in the best position to evaluate her mental health and were the appropriate persons to report any threat that she posed.

5.      You should be sure that you have accurate information before filing any report.     Because Dr. Jones did not have complete or accurate information about the trooper’s commitment, the report he gave was based on rumors and was in error. 

While I’m sure that Dr. Jones was thrilled to avoid jail time, he was probably less joyous about paying thousands of dollars in attorney fees, enduring the negative nationwide publicity, and spending three years of his life defending the charges related to this incident.  The only good to come out of the case may be the many lessons it offers concerning HIPAA compliance.

*Dr. Jones is not this defendant’s real name.

The Best Predictor of Future Behavior

Since the beginning of time, man has tried to predict the future.  Wise men studied the stars to determine the best time to plant crops.  Soothsayers warned kings of events that could threaten their empires.  Today, ecologists predict a catastrophic global warming of our planet.  The tools of the trade run the gamut from delicate scientific measurements of carbon in ice cores to chicken entrails. 

Most licensed professionals sell knowledge of the future to their clients, patients, and consumers.  Your attorney draws up contracts that he predicts will protect you.  Your physician predicts the course of your illness.  The pharmacist tells you how certain drugs will affect your mind and body.  Psychologists administer tests, conduct interviews, and perform assessments in order to predict human behavior.

In my experience, the best predictor of future behavior is past behavior.  This is a lesson a couple of psychologists learned the hard way.

A young woman began therapy with Dr. Land in 1993.  The doctor determined that her patient suffered from alcoholism, family discord, boundary issues, depression, post-traumatic stress disorder, gender issues, fits of violence, and repercussions from sexual abuse.  Dr. Land admitted her patient to a hospital.  Within one week of the patient’s discharge, Dr. Land terminated her doctor/patient relationship with the patient and began an affair with her.  The affair was short-lived.  Dr. Land stated that there were problems with the patient’s drinking, fits of violence and other emotional issues.  Sound familiar?  The psychology board revoked Dr. Land’s license because she violated the ethical prohibition on having sex with a client or former client. 

In another case, a psychologist treated a patient who had a history of severe difficulties in employment relationships.  Confident that 18 months of therapy had cured his patient of these problems, the doctor released her from his care and hired her to work as his office manager.  Surprisingly the employer-employee relationship didn’t quite work out.  One morning, shortly after she reported for work, the doctor fired the former patient but asked her to finish out the day.  Mid-afternoon, the doctor heard a noise and, turning around, saw this lady lunging at him with a pair of scissors.  Fortunately, he was able to wrestle the scissors away from her and escape injury. 

With 20/20 hindsight, we can identify numerous poor choices that the doctor made.  First, by hiring someone with a documented history of problems on the job, he ignored the patient’s past behavior.  Second, he hired a patient immediately after terminating her therapy.   Doing so violated ethical prohibitions of entering into dual relationships with patients and former patients.  Third, he did not escort the patient away from the office when he fired her.  This gave a very angry former employee the opportunity to cause irreparable damage at work.

 

Predictably, the patient filed a complaint with the state Psychology Board.  She maintained that she wasn’t trying to hurt the doctor with the scissors.  She said she noticed that he was talking on a phone that didn’t work.  To resolve the issue, she was going to cut the phone cord.  She testified, “I guess he thought I was going to stab him . . . we got into a little altercation.  He nearly broke my arm.”  She further stated that she was angry because everyone in the office was conspiring against her to “drive me insane to the point where I would be mentally unable to testify against them.”

The Psychology Board found the patient to be a credible witness and, based on her testimony, it suspended the doctor’s license for three years.  The doctor appealed the ruling. 

Fortunately, for the doctor, the court did not agree with the Board’s psychological assessment of its key witness.  After the bailiff cleared the courtroom of all sharp objects, the court held that former patient was not credible.  It reversed the Board’s order.

Sometimes, we have to make important split-second decisions about a person.  This year, I was in a fairly serious car accident.  I hit my head in the wreck, was stunned, and had a hard time thinking.  As my car filled with smoke, I began to have trouble breathing.  I heard someone pounding on the passenger side door. The man managed to get the door open and then tried to pull me out of the car.  My initial instinct was to push him away and to stay in the car.  I didn’t know this man.  I was injured.  But then, I saw that he was wearing a cross on a chain around his neck.  

With his help, I got out of the car without further injury.  As I sat in his car waiting for the Highway Patrol, I saw devotional books on the seat.  He was a seminary student.  Finally, I could calm down.  He stayed with me until help arrived.

That morning, when this man woke up, he decided to wear a cross around his neck.  That was the only “past behavior” that I could assess at the time when I had to decide whether to trust this stranger.  My decision was a good one.  I only wish that I could have gotten his name before the ambulance arrived.  I would like to be able to thank him.

And to you dear reader, Happy Thanksgiving.

Doctor Disciplined for Frightening Children - Happy Halloween

I admit that I made one or two mistakes as a parent.  One of the worst errors was teaching the kids to question authority and to think for themselves.  When they hit their teenage years and began to view me as “an authority” whom they should question, I realized that I had given them extremely bad advice.  After one explosive encounter with the boys, their dad urged me to take a weekend off by myself at our lake house where I could escape the stress.  I realized only later that I had been put in time out.

As there wasn’t much to do at the lake, I had taken a few magazines along with a cross stitch project.  That afternoon, while reading a Southern Living magazine, I ran across an ad.  It asked whether we were “having discipline issues” with our teenagers.  If so, we could send them to a lovely camp in New England where they could learn to better communicate with us. 

My kids were communicating just fine, but I was intrigued by the camp idea. I read on until I came to a more promising ad.  It offered a “boot camp” experience in the Nevada desert that was guaranteed to teach kids to behave.  A former Army drill sergeant ran the camp.  This was exactly what we needed.  Upon returning home, I enthusiastically told the boys and their dad about the camp.  They confiscated my magazines and sent me back to the lake. 

In 2009, Dr. Smith, a psychologist, was working at a state-run youth detention camp.  In addition to housing delinquent juveniles, the facility had its own version of the “Scared Straight” show.  Parents and other “authorities” sent problem kids to the camp for a day.  The psychologist met them briefly and turned them over to security personnel.  The kids ranged in age from ten to 14.  At the camp, some had to wear handcuffs and leg shackles.  Some were “disciplined.”  Some had to do chores with inmates.  The intent was to convince kids how horrible it would be to continue on their path of crime and end up at the camp. 

I’m sure the “aversive experience” scared the children silly.  But after the state Psychology Board got wind of it, the experience turned out to be just as frightening for Dr. Smith.

The Board disciplined the doctor because he did not conduct initial psychological assessments of the children, he failed to get their parents’ informed consent, and he failed to document his work.  The psychologist appealed the Board’s ruling to the courts.

In court, the psychologist argued that these children were not his patients and that he was not providing psychological services to them.  However, the court noted that the psychologist, after his brief encounter with the children, decided which of them would be put into shackles, what chores would be assigned and what they would be doing on their “visit.”  The court held that because the doctor determined the intervention for each child, he was providing “therapy” for them.  Accordingly, he had to carry out his therapy as required by law.  He needed to obtain parental consent, do a thorough assessment of each child, and document his work.  The court upheld the Board’s discipline of the doctor.

The juvenile detention facility should never have gotten a psychologist involved with the program.  If they had read Southern Living Magazine like I did, they would know that they could have hired a former Marine drill instructor or even a retired member of Seal Team Six to frighten the children.  These highly trained personnel are expert at instilling terror and discipline and they don’t have to be licensed.  It would be a win-win for all involved. 

At Halloween, I often think about Dr. Smith.  While the rest of us delight in frightening kids with bats, ghosts, jack o’lanterns, vampires, and peeled grape eyeballs, those who visit Dr. Smith’s well-lit house probably find no Halloween decorations.   I doubt he wears his old vampire costume any more.  In fact, to be safe, he probably doesn’t even stay home for trick or treat.  The last thing he wants to do is to scare any more children. 

Happy Halloween.

The Day Elvis Died

I have been blessed with absolutely fantastic secretaries throughout my career.  My first secretary, Janet, worked with me at the UNC Institute of Government.  She was responsible for five faculty members and I have no idea how she managed to keep up with each of us.  Her support and insight into the mechanisms of working for the State were invaluable.  Most remarkable was her consistently cheerful disposition. 

          Like millions of fans around the world, Janet adored Elvis.  She and her husband, “Shotgun”, had managed to score tickets to his upcoming  Fayetteville, North Carolina, concert.  She was overjoyed. 

On August 16, 1977, after being in meetings all afternoon, I hurried back to the office.  Walking into our “alcove,” I was startled to see Janet sobbing at her desk.  When she looked up, her eyes were red and mascara was smeared down her cheeks.  Elvis was dead.  There would be no concert.

          Years later, the State of North Carolina sued the City of Asheville and Fayetteville’s Cumberland County Memorial Auditorium when they failed to refund the money to those who had bought tickets to the Elvis concert.  Relying on the little known “escheat” laws, the State argued that the defendants had a duty to refund all tickets.  Any unclaimed refunds were the property of the State Treasury.

          The defendants argued that they had a duty to issue refunds only on request of ticket holders.  It assumed others wanted to keep their tickets as Elvis memorabilia.  The Court agreed with the defendants, noting that a ticket may be a sentimental treasure as important as the concert itself.

          While Elvis escaped the State Treasury department, others snagged by the escheat laws have not been so lucky.  In fact, those laws are the third biggest source of revenue for the State of Delaware.  Seeking to cash in during these difficult economic times, many other states are now looking for potential defendants – especially health care providers. 

Today’s health care providers often require patients to pay for services in advance or on the day the service is rendered.  When the patient checks in, the front desk personnel estimate the cost to the patient of the service and

demand payment.  However, the front desk may miscalculate the amount of insurance coming in from the patient’s health care insurer.  Or, the doctor may change the treatment plan in a way that reduces the charge to the patient.  At the end of the day, the provider has been overpaid.  As most computerized accounting programs are not set up to deal with these patient credits, the money often goes into the provider’s operating account and disappears.

          Experts estimate that these overpayments total $8 billion per year in the United States.  Medicaid, Medicare, and some insurance companies require providers to refund patient credits within 60 days.  North Carolina law gives health care providers five years to refund overpayments to the patient or insurance carrier.  After that time, providers must turn the money over to the State.

          The federal government imposes severe penalties, including hefty fines and imprisonment, for failure to refund money in Medicaid and Medicare programs.   North Carolina imposes a fine of $1000 per day up to $25,000 along with interest and penalties in the amount of 25% of the value of the property at issue.  It has the right to audit companies it suspects of failing to comply with the law.  Complaints from unhappy consumers and former employees often trigger investigations.   When medical or dental practices change ownership, the buyer may become aware of the credits and report them to the State in an effort to avoid liability.

          Health care providers are not the only targets of state Treasury Departments.  In 1992, North Carolina successfully sued the Roses Department store chain for failing to turn over lay-away payments it had not  refunded to customers.  In other states, penalties against life insurance companies have totaled hundreds of millions of dollars.  Clearly, it is important to understand and comply with our State’s escheat laws – known by the Treasury Department as the “NC Cash Program.”

          There are days I will never forget.  Like most Americans, I remember where I was the day President Kennedy was shot.  I also know what I was doing on September 11^th.  And, I’ll never forget the Tuesday afternoon when Elvis’ death broke Janet’s heart.