Rights Responsibilities & Solutions:
Avoid Disasters for the Special Needs Population
& Comply with the HIPAA Privacy Rule
Linda Sanches, Senior Advisor, HIPAA Privacy Outreach & Training
Eileen Hanrahan, Senior Civil Rights Analyst
Office for Civil Rights, U.S. Department of Health and Human Services
February 5, 2008
National Emergency Management Summit
10/3/2015
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Topics
 What does OCR do
 HIPAA
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HIPAA Privacy Rule basics
Sharing of health information in a disaster
Sharing information for emergency preparedness
 Special needs population
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Who is the special needs population—functional approach
How the civil rights laws apply to persons with special needs in an
emergency
Strategies for addressing their needs in an emergency
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OCR Protects Through Enforcement

Section 504 of the Rehabilitation Act of
1973 (disability)

Title II of the Americans with Disabilities
Act of 1990 (disability)

Title VI of the Civil Rights Act of 1964
(race, color, & national origin)

Age Discrimination Act of 1975 (age)

Health Insurance Portability and
Accountability Act of 1996 (privacy)

Patient Safety and Quality Improvement
Act of 2005 (confidentiality)
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How OCR Protects Civil & Privacy Rights
 Resolving Complaints: people who believe that they have been
discriminated against or the law otherwise has been violated may
file complaints with OCR
 Opening compliance reviews: OCR may initiate a civil rights
review of a program that receives HHS funds or a Privacy Rule
review of any covered entity
 Conducting pre-Grant reviews: OCR conducts civil rights reviews
of health care providers who are applying to participate in the
Medicare Part A program
 Offering technical assistance: OCR provides resources, training,
and outreach materials
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What If an OCR Investigation
Indicates Noncompliance?
 Emphasis on voluntary compliance through corrective
action and resolution agreements
 Civil Rights Enforcement
 Privacy Enforcement
Assess civil money
penalties

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
Terminate HHS funding
Refer to Department of Justice
for enforcement

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Recent Emergency Responses Suggest Privacy
Compliance Strategies Are Incomplete
 Some paramedics have refused to disclose information to
emergency medical providers
 Some state and local authorities have been unable to confirm that
their requests for information from providers for planning activities
are permitted by HIPAA.
 Some emergency responders have refused to make disclosures
because they mistakenly believe that they are subject to the HIPAA
Privacy Rule
 Federal “Lessons Learned” reports note frequent misunderstanding.
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Basic Construct of the HIPAA Privacy Rule
 Creates a nationwide baseline of privacy protections for
health information
 Sets standards
 When information can be used or disclosed
 How information must be protected
 New training, staffing, information management, contracts,
policies and procedures
 Establishes rights for individuals
 Access, correct, control, complain
 Enables HHS to enforce these requirements
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Who is Covered by the Privacy Rule? Covered Entities
 Health plans
 Health care providers who
transmit health information
electronically in connection
with standard transactions
(e.g., billing).
 Health Care
Clearinghouses
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
Health Plans include
employer sponsored health plans,
health insurance companies, HMOs
certain government programs that pay
for health care, such as Medicare &
Medicaid

Providers include
most doctors offices, pharmacies,
hospitals, clinics, nursing homes,
many other health care providers
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What is covered? Protected Health Information
 Individually identifiable health
information (other than
education, employment
records)
 Transmitted or maintained in
any form or medium
 By covered entities or their
business associates
Protections do not follow
information once released to
persons not covered by HIPAA
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This includes

Medical records

Conversations the doctor has
about care or treatment with
nurses and others

Information about members in
health insurer's computer system

Billing information about patients
at a health clinic

Most other health information held
by those who must follow this law
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When Can Information Be Shared?
The Rule permits sharing
 For treatment, payment, and health care operations purposes
 To the individual
 Pursuant to a valid written authorization
 When the individual agrees, or does not object in circumstances that
give the individual an opportunity to agree or object
 Relevant information to family or friend caregivers; hospital
directories
 For specific public policy purposes, such as public health or law
enforcement purposes—requirements apply to each type
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Can Health Information Be Shared in a Severe Disaster?
Yes, for these purpose:
 Treatment
 Notification
 To address imminent danger
 Facility directories
 Public health
Of course, the HIPAA Privacy
Rule does not apply to
disclosures if they are made
by entities not covered by the
Privacy Rule.
So the HIPAA Privacy Rule
does not restrict the American
Red Cross from sharing patient
information.
http://www.hhs.gov/ocr/hipaa/KATRINAnHIPAA.pdf
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Permitted Disclosures: Treatment
 Sharing information with other providers
hospitals, clinics, emergency shelter nurses
 Referring patients for treatment
linking patients with providers where patients have
relocated
 Coordinating patient care with others
emergency relief workers, others finding health
services
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Permitted Disclosures: Notification
As necessary to identify and locate family members, guardians, or
anyone else responsible for the individual's care, and notify them of
the individual's location, general condition, or death
 In emergency, hospital may notify the police, the press, or the public
at large as appropriate
 May share information with disaster relief organizations that, like the
American Red Cross, are authorized by law or by their charters to
assist in disaster relief efforts

No need to obtain a patient's permission if doing so would interfere with
the organization's ability to respond to the emergency
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Permitted Disclosures: Others
 IMMINENT DANGER: Providers can share patient information with
anyone as necessary to prevent or lessen a serious and imminent
threat to the health and safety of a person or the public -- consistent
with applicable law, ethical standards.

FACILITY DIRECTORY: Health care facilities maintaining a
directory of patients can tell callers (if patient does not opt-out):

Whether an individual is at the facility,
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The individual’s location in the facility, and
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The individual’s general condition
“he is in the ICU in stable condition”
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Is the HIPAA Privacy
Rule Suspended During
a National or Public
Health Emergency?
No, although the Secretary may
waive imposition of penalties
against covered entities that do
not comply with certain
provisions of the Rule
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 Only applies to certain
hospitals, for 72 hours
 Only applies re: certain
provisions, such as notice
distribution, facility directory
opt-out.
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Can Health Care Providers Share Information
for Emergency Preparedness Activities?
Yes, when
 The disclosure is made for
public health purposes to an
appropriate public health
authority
 An entity that is authorized by
law to coordinate disaster relief
planning may be a public
health authority
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
Many emergency preparedness
activities are public health
activities (e.g., those that prevent
or control disease, injury or
disability)
 Public health authorities must be
authorized by law to collect or
receive such information for the
purpose of preventing or
controlling disease, injury, or
disability, including the conduct of
public health interventions.
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Understanding the Privacy Rule Enables Appropriate
Services for the Special Needs Population
 Privacy Rule may permit
providers to disclose
information about their
patients for public health
preparedness activities.
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 These issues are
especially important for
providers and planners
seeking to effectively
serve the special needs
population.
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Avoid Disasters for the
“Special Needs Population”
Effective planning, response, and recovery
for the special needs population, consistent
with Federal civil rights laws
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Who Is the Special Needs Population?
 Many definitions of “special needs population,” “at-risk population,”
and “vulnerable population” exist.
 In the National Response Framework, the Federal Government has
adopted a single function-based definition.

A single definition allows for consistency of intergovernmental planning
and exercises to ensure the safety and security of all.

A function-based definition establishes a flexible framework that
addresses common needs irrespective of specific diagnosis, statutes or
labels.
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It provides useful information to emergency planners and responders
that mere labeling does not.
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Definition of Special Needs Population
in the National Response Framework
Before, during, and after an incident, members of this population may have
additional needs in one or more of the following functional areas:
Maintaining independence, communication, transportation, supervision, and
medical care. Individuals in need of additional response assistance may
include those who:

Have disabilities

Live in institutionalized settings

Are elderly

Are children

Are from diverse cultures

Have limited English proficiency or are non-English speaking

Are transportation disadvantaged
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We Will Focus on Three Populations
That Are Protected by
Federal Civil Rights Laws
 Persons with disabilities
 Persons from diverse racial/ethnic origins, including Limited
English proficient (LEP) persons
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Special Needs Population
Facts and Figures
 In 2000, 18% of the population (47 million people) spoke a language
other than English at home.
 63% of hospitals treat LEP patients daily or weekly.
 Nearly 40 million people have one or more disabilities.
 40% of the population over 65 has one or more disabilities.
 In 2000, persons who were African American, Hispanic or Asian
comprised nearly a third of the population. This percentage is
projected to increase through 2050.
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The Experience of These Populations in Emergencies
 Historically, emergency preparedness activities have lacked
sufficient focus on individuals with special needs.
 As a result, these populations often:

Did not receive important information about emergencies;

Were not evacuated;
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Were unable to access shelters; and
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Failed to receive needed services, including medical assistance.
 Many Hurricane Katrina “lessons learned” reports noted the
importance of including the special needs population in planning,
response, and recovery efforts for those efforts to be successful.
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What Civil Rights Laws Apply
to These Populations?
 Title VI of the Civil Rights Act of 1964 (Title VI) prohibits
discrimination on the basis of race, color, or national origin by
recipients of Federal financial assistance.
 Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits
discrimination on the basis of disability by recipients of Federal
financial assistance.
 Title II of the Americans with Disabilities Act of 1990 (ADA) prohibits
discrimination on the basis of disability by public entities, whether or
not they receive Federal financial assistance.
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Standards under the Federal Civil Rights Laws
Disability Discrimination
Section 504 and Title II implementing regulations:
 Different treatment on the basis of disability
 Actions that have the effect of discriminating on the basis of
disability
 Program accessibility
 Provision of auxiliary aids and services where necessary to afford
equal opportunity, unless undue burden or fundamental alteration
 Modification of policies, practices, and procedures where necessary
to avoid discrimination, unless fundamental alteration
 Administration of services in the most integrated setting appropriate
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Standards under the Federal Civil Rights Laws
Race, Color, and National Origin Discrimination
Title VI implementing regulation:
 Different treatment on the basis of race, color, or national origin
 Actions that have the effect of discriminating on the basis of race,
color, or national origin

May include the failure to take reasonable steps to provide LEP
persons meaningful access to the program
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How Service Providers Can Effectively Address
Functional Needs in an Emergency,
Consistent with Federal Civil Rights Laws
 Strategic planning
 Location and assessment of the special needs population
 Communication
 Avoidance of separation of individuals from their sources of support
or assistance
 Integration
 Accessibility
 Recovery
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Strategic Planning
 Include people with special needs in planning and exercises
 Know your partners and collaborate in developing plans
 Know what resources are available to you in an emergency
 Develop protocols and procedures for providing services and
obtaining resources
 Communicate your emergency plan to response and community
stakeholders
 Identify and maintain access to expertise about people with special
needs for all staff up and down the line
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Location and Assessment
 Coordinate with state and local emergency management officials
 Know the populations - population survey data
 Know the functions with which people may need assistance - use of
individual intake and assessment tools
 Consider using a voluntary registry to identify persons with special
needs
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Communication
 Coordinate with community and faith-based organizations
 Use multiple, accessible communication mechanisms, such as:

Large print/audio for persons who are blind or have low vision

Interpreter services for deaf/hard of hearing or LEP persons, such as
language banks, telephonic interpreter services, bilingual staff, contract
or volunteer interpreters

Picture boards
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Captioning of televised messages
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Translation of written emergency information into other languages

Short, simple communication scripts, repeated frequently
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Avoidance of Separation from
Sources of Support or Assistance
 Durable medical equipment (wheelchairs, walkers, scooters,
catheters, ostomy supplies, etc.)
 Service animals
 Caregivers and attendants,
family members and companions
 Medication, supplies
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Integration
 Avoid isolation of individuals with
special needs unless necessary
 Avoid misdirecting individuals to
higher levels of care than what they need,
such as hospitals, acute care facilities,
or medical shelters
 Provide access to appropriate equipment,
medication, personnel or other resource support
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Accessibility
 Transportation

Secure accessible transportation (lift equipped) for the individual and his
or her equipment, service animal, or caregiver

Ensure trained personnel to operate the vehicle
 Evacuation

Arrange an inspection by emergency management or firefighting
officials

Inform affected persons about the plan as early as possible

Employ procedures for 100% accountability
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Accessibility
 Sheltering

Accessible facilities/programs

Alternative sources of power

Bathing and toileting facilities

Beds

Supplies and equipment

Hospitals, congregate care facilities
and sheltering in place
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Recovery
 Accessible housing and transportation
 Continuity of health care and human services
 Supports for everyday life
 Community connections
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Emergency Preparedness Resources
HIPAA Privacy and Civil Rights
http://www.hhs.gov/ocr/hipaa/emergencyPPR.html
www.hhs.gov/od/emergencypreparedness.html
http://mentalhealth.samhsa.gov/publications/allpubs/SMA033828/default.asp
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