News Anesthesia Practices Can Use in 2017: On Language Services, HIPAA, Recycling and the FTC

SUMMARY What you need to know about language services and the Affordable Care Act, HIPAA and public health activities, recycling in the OR, the FTC Act and Medicare's Social Security number removal initiative.

We start the new year with warm wishes and a compilation of updates and practical information gathered from some of our most reliable sources.

Support Your Limited English Proficiency (LEP) Patients

First, we offer a reminder and a brief refresher about Section 1557 of the Affordable Care Act (ACA). Have you met the procedural requirements of the final rule, published in May 2016? As you know, Section 1557 is the first law to specifically prohibit discrimination on the basis of race, national origin, sex, age or disability in healthcare settings. Although these non-discrimination provisions went into effect when the ACA was passed in 2010, the final rule delineates certain procedures that healthcare organizations must implement to uphold the law, including posting notices of non-discrimination on websites and in public spaces, establishing a grievance procedure, and providing services for people with disabilities and LEP. (Section 1557 is discussed in detail in our eAlert, Anesthesia Practices: Check Your Compliance with the Section 1557 Final Rule.)

The deadline for meeting many of Section 1557's procedural requirements was October 16, 2016, and the rule is being enforced. On December 22, 2016, the Department of Health and Human Services Office for Civil Rights (HHS OCR) reported that it had entered into a voluntary agreement with the Erie County Department of Social Services (ECDSS) of Buffalo, New York. A community legal services organization filed a complaint with HHS OCR on behalf of five individuals alleging that ECDSS failed to provide language assistance and important documents translated into their native languages of Burmese and Karen.

Following an investigation, ECDSS agreed to take several steps to improve its language assistance services, including conducting an assessment of its service area population's linguistic needs; identifying and translating all vital documents; implementing a language access plan with written policies and procedures for LEP individuals; providing mandatory training for all staff; and posting a notice of nondiscrimination and taglines in at least 10 languages. The full agreement is available here.

As mentioned in our eAlert, enforcement of Section 1557 can occur through informal mediation, the reduction or elimination of federal assistance, or referral to the Department of Justice. Private individuals and entities can also sue in federal court to challenge alleged violations of Section 1557.

HHS OCR encourages healthcare organizations to train staff in Section 1557 and has developed a presenter's guide and a slide deck to assist in this regard. These materials can be used to supplement your own training materials. Training should include physicians, certified registered nurse anesthetists and other staff who regularly interact with the public. To help covered entities meet the LEP requirements of Section 1557, HHS OCR also offers a sample notice, statement and taglines translated into 64 languages; however, covered entities may create their own notices.

HIPAA and Public Health Activities

How are your practice and your institution allowed to share protected health information (PHI) with public health agencies under HIPAA? The OCR and the Office of the National Coordinator for Health Information Technology (ONC) have published a new fact sheet to help healthcare providers understand how HIPAA rules permit disclosures of PHI to support public health activities by public health agencies as authorized by state or federal law. The fact sheet provides eight illustrations of permitted uses and disclosures for public health activities, including instances in which covered entities are permitted, but not required, to disclose PHI without first obtaining an individual's authorization. "While HIPAA requires that the information disclosed is the minimum information necessary for the purpose, it permits the discloser to reasonably rely on a public health authority's request as to what information is necessary for the public health activities," the document states.

The hypothetical scenarios include:

• Exchange of PHI for the reporting of disease, such as a request from the Centers for Disease Control and Prevention for information on prior and prospective cases of patients exposed to the Zika virus
• Exchange for conduct of public health surveillance, such as a request by a state health department for information on patients for a cancer registry
• Exchange for public health investigations, such as a request by a state public health department for information on all confirmed cases of measles, including patient identity, demographic information and test results
• Exchange for public health interventions, such as a local health department's request for lead exposure test results in children for the purpose of tracking their health and development over time
• Exchange subject to Food and Drug Administration (FDA) jurisdiction, such as information on patients who have been treated with a medical device that has been recalled.
• Exchange for persons exposed to communicable disease and for related public health investigation, such as an investigation into outbreaks of a virus by a local health department
• Exchange in support of medical surveillance of the workplace, such as when a physician provides health evaluations to enable an employer to monitor workplace safety

Fact sheets on HIPAA and PHI for treatment and healthcare operations are also available from OCR.

The FTC Act and Your Practice

When it comes to collecting and sharing patient health information, did you know that you've got more than HIPAA compliance to consider? Don't forget the FTC Act, which prohibits companies—and that includes covered entities and business associates—from engaging in deceptive or unfair acts or practices in or affecting commerce. According to OCR guidance issued in October, this means that not only must your practice comply with HIPAA in obtaining patient authorizations, but it must also make sure that none of the statements made in the authorization create a misleading impression. "Even if you believe your authorization meets all the elements required by the HIPAA Privacy Rule, if the information surrounding the authorization is deceptive or misleading, that's a violation of the FTC Act," the guidance states. "When you're telling consumers about how you share consumer health information, always remember the FTC Act as well as HIPAA."

Here are some examples of ways in which your practice might go astray regarding the FTC Act:

• Burying key facts regarding how information may be used in links to a privacy policy, terms of use or the HIPAA authorization
• Promising not to share information and then requiring consumers to scroll down through several lines of a HIPAA authorization to understand the full story
• Not telling patients the full story before they send information that could be shared publicly

In general, review clarity and consistency across all media and user interfaces, and don't forget to review paper disclosures.

For more information, see .com Disclosures: How to Make Effective Disclosures in Digital Advertising, the mobile health apps interactive tool, FTC's best practices guidance for mobile health apps, and the OCR app developer portal.

Take the Lead in Recycling

If you don't already have one in place, could this be the year your group launches a recycling program in the OR? Varun Dixit, MD, an anesthesiologist specializing in cardiothoracic procedures at East Maine Medical Center in Bangor, initiated a pilot project in the two cardiac ORs at his institution. After one year and 800 cardiothoracic procedures, the project succeeded in diverting 3,200 pounds of material from landfills—an average of four pounds of material recycled per case. According to the Environmental Protection Agency's Waste Reduction Model (WARM) calculator, the recycling effort represents an energy savings of four metric tons of carbon dioxide equivalent. Based on this success, recycling has since been expanded to the hospital's entire suite of 19 ORs, the cardiac catheterization laboratory and the pharmacy.

An estimated 20-30 percent of total waste generated in hospitals comes from the OR.¹ According to a survey of 5,200 members of the American Society of Anesthesiologists, despite the finding that approximately 80 percent of participants reported interest in recycling, only about 28 percent have recycling programs and only 13 percent have a mandate from senior leadership for sustainability programs at their institutions.²

"Anesthesiologists are team leaders in managing patients; however, they can also take a leadership role in reducing the carbon footprint of the operating rooms," says Dr. Dixit. "The results achieved in this project are a promising sign that in bigger cities, with a wider scope of recycling, a considerable amount of waste can be kept out from landfills." The participation of nurses, maintenance and housekeeping staff are essential for a successful project, he notes.

More information about recycling in the OR and environmental sustainability in healthcare is available from Practice Greenhealth.

New Medicare Identifiers

The Medicare Access and CHIP Reauthorization Act (MACRA) mandates a shift from the use of Health Insurance Claim Numbers (HICN) based on Social Security numbers to new, randomly generated Medicare Beneficiary Identifiers (MBI). The new identifiers will help the Centers for Medicare and Medicaid Services (CMS) protect private healthcare and financial information as well as federal healthcare benefit and service payments. CMS will assign an MBI and send a new Medicare card to Medicare beneficiaries after April 2018. Though that is more than a year away, it is not too soon to begin planning systems changes to prepare to accommodate the new identifiers. If you are installing a new system, you will want to plan now to ensure a smooth transition to the new MBIs. During a transition period (April 1, 2018 through December 31, 2019), covered entities will be able to use either the HICN or the MBI to exchange data with CMS. More information on the initiative, including a link to a slide deck from a recent Open Door Forum, can be found at the CMS website.

May your year be an exceptionally enjoyable and fulfilling one, and may these items serve you and your colleagues well in your anesthesia practices and institutions.

With best wishes,

Tony Mira
President and CEO