HIPAA and FDCPA Compliance for Process Servers

HIPAA & FDCPA

HOW DO THESE ACTS EFFECT ME

This presentation is a summary of HIPAA and FDCPA

and not a complete and comprehensive guide to

compliance. In the event of a conflict between this

summary and the Rule, the Rule governs.

SUMMARY OF THE HIPAA PRIVACY RULE

• The Standards for Privacy of Individually Identifiable

Health Information (“Privacy Rule”) establishes, for the

first time, a set of national standards for the protection of certain health information.


• The U.S. Department of Health and Human Services

(“HHS”) issued the Privacy Rule to implement the

requirement of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).


• A major goal of the Privacy Rule is to assure that

individuals’ health information is properly protected

while allowing the flow of health information needed to

provide and promote high quality health care and to protect the public's health and well being.


• The Privacy Rule standards address the use and

disclosure of individuals’ health information - called

“protected health information” by organizations subject

to the Privacy Rule – called “covered entities,”

Statutory & Regulatory

Background

• The Health Insurance Portability and Accountability Act

of 1996 (HIPAA), Public Law 104-191, was enacted on

August 21, 1996. Sections 261 through 264 of HIPAA

require the Secretary of HHS to publicize standards for

the electronic exchange, privacy and security of health

information. Collectively these are known as the Administrative Simplification provisions.

Statutory & Regulatory

Background

• HIPAA required the Secretary to issue privacy regulations governing individually identifiable health information, if Congress did not enact privacy legislation within three years of the passage of HIPAA.

• Because Congress did not enact privacy legislation, HHS developed a proposed rule and released it for public comment on November 3, 1999.

• In March 2002, the Department proposed and released for public comment modifications to the Privacy Rule.

Who is Covered by the

Privacy Rule

• Health Plans. Individual and group plans that provide

or pay the cost of medical care are covered entities.


Privacy Rule

• Health Plans. Individual and group plans that provide or pay

the cost of medical care are covered entities.

• Include, health, dental, vision, prescription drug insurers,

HMOs, Medicare, Medicaid, etc.


Privacy Rule

• Health Care Providers. Every health care provider,

regardless of size, who electronically transmits health

information in connection with certain transactions, is a

covered entity.


Privacy Rule

• Health care providers include all “providers of services”

(e.g., institutional providers such as hospitals) and

“providers of medical or health services” (e.g., non-

institutional providers such as physicians, dentists and

other practitioners) as defined by Medicare, and any

other person or organization that furnishes, bills, or is

paid for health care.


Privacy Rule

• Health Care Clearinghouses. Health care clearinghouses are

entities that process nonstandard information they receive from

another entity into a standard (i.e., standard format or data

content), or vice versa.

• Health care clearinghouses include billing services, repricing

companies, community health management information

systems, and value-added networks and switches if these entities perform clearinghouse functions

Business

Associates

• Business Associate Defined. In general, a business

associate is a person or organization, other than a

member of a covered entity's workforce, that performs

certain functions or activities on behalf of, or provides

certain services to, a covered entity that involve the use

or disclosure of individually identifiable health

information.

Business

Associates

• Business associate functions or activities on behalf of a

covered entity include claims processing, data analysis,

utilization review, and billing. Business associate

services to a covered entity are limited to legal,

actuarial, accounting, consulting, data aggregation,

management, administrative, accreditation, or financial

services.

Business

Associates

• However, persons or organizations are not considered

business associates if their functions or services do not

involve the use or disclosure of protected health

information, and where any access to protected health

information by such persons would be incidental, if at

all.

Business Associates

Contract

• When a covered entity uses a contractor or other non-

workforce member to perform "business associate"

services or activities, the Rule requires that the covered

entity include certain protections for the information in a

business associate agreement

Business Associates

Contract

• In the business associate contract, a covered entity

must impose specified written safeguards on the

individually identifiable health information used or

disclosed by its business associates

What Information is

Protected

• The Privacy Rule protects all "individually identifiable

health information" held or transmitted by a covered

entity or its business associate, in any form or media,

whether electronic, paper, or oral.

• The Privacy Rule calls this information "protected

health information (PHI)

What Information is

Protected

• “Individually identifiable health information” is

information, including demographic data, that relates to:

• the individual’s past, present or future physical or mental health

or condition

• the provision of health care to the individual, or

• the past, present, or future payment for the provision of health care to the individual

What Information is

Protected

• Any information which identifies the individual or for

which there is a reasonable basis to believe can be

used to identify the individual.

• Individually identifiable health information includes

many common identifiers (e.g., name, address, birth

date, Social Security Number).

What Information is

Protected

• The Privacy Rule excludes from protected health

information employment records that a covered entity

maintains in its capacity as an employer and education

and certain other records subject to, or defined in, the

Family Educational Rights and Privacy Act, 20 U.S.C.

§1232g.

General Principle for

Uses and Disclosures

• Basic Principle. A major purpose of the Privacy Rule is to

define and limit the circumstances in which an individual’s

protected heath information may be used or disclosed by

covered entities. A covered entity may not use or disclose

protected health information, except either:

• (1) as the Privacy Rule permits or requires; or

• (2) as the individual who is the subject of the information (or the individual’s personal representative) authorizes in writing

Limiting Uses and Disclosures

to the Minimum Necessary

• Reasonable Reliance. Similarly, a covered entity may rely

upon requests as being the minimum necessary protected

health information from:

• a professional (such as an attorney or accountant) who is the

covered entity’s business associate, seeking the information to provide services to or for the covered entity;

Data Safeguards

• A covered entity must maintain reasonable and appropriate

administrative, technical, and physical safeguards to prevent

intentional or unintentional use or disclosure of protected

health information in violation of the Privacy Rule and to limit its

incidental use and disclosure pursuant to otherwise permitted or required use or disclosure

Complaints

• A covered entity must have procedures for individuals to complain about its compliance with its privacy policies and procedures and the Privacy Rule. The covered entity must explain those procedures in its privacy practices notice.72

• Among other things, the covered entity must identify to whom individuals can submit complaints to at the covered entity and advise that complaints also can be submitted to the Secretary of HHS.

State Law

• Preemption. In general, State laws that are contrary to the

Privacy Rule are preempted by the federal requirements, which

means that the federal requirements will apply. “Contrary”

means that it would be impossible for a covered entity to

comply with both the State and federal requirements, or that

the provision of State law is an obstacle to accomplishing the

full purposes and objectives of the Administrative Simplification provisions of HIPAA.

Criminal Penalties

• A person who knowingly obtains or discloses individually

identifiable health information in violation of HIPAA faces a fine

of $50,000 and up to one-year imprisonment. The criminal

penalties increase to $100,000 and up to five years

imprisonment if the wrongful conduct involves false pretenses, and to $250,000

THE FAIR DEBT COLLECTION

PRACTICES ACT

• It is the purpose of this title to eliminate abusive debt collection

practices by debt collectors, to insure that those debt collectors

who refrain from using abusive debt collection practices are not

competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.


PRACTICES ACT

• The term “debt collector” means any person who uses

any instrumentality of interstate commerce or the mails

in any business the principal purpose of which is the

collection of any debts, or who regularly collects or

attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.


PRACTICES ACT

• The term does not

• any person while serving or attempting to serve legal

process on any other person in connection with the judicial enforcement of any debt;


PRACTICES ACT

• Consumer” defined

• For the purpose of this section, the term “consumer”

includes the consumer’s spouse, parent (if the

consumer is a minor), guardian, executor, or administrator.

FDCPA VIOLATION TRIGGER(S)

• 805. Communication in connection with debt

collection

• if the debt collector knows the consumer is represented

by an attorney with respect to such debt Communication with third parties


• 806. Harassment or abuse

• The use or threat of use of violence or other criminal

means to harm the physical person, reputation, or

property of any person.

• The use of obscene or profane language or language

the natural consequence of which is to abuse the hearer or reader.


• 806. Harassment or abuse

• Causing a telephone to ring or engaging any person in

telephone conversation repeatedly or continuously with

intent to annoy, abuse, or harass any person at the called number.


• 807. False or misleading representations

• The threat to take any action that cannot legally be

taken or that is not intended to be taken.

• The use of any business, company, or organization

name other than the true name of the debt collector’s business, company, or organization.


• 811. Legal actions by debt collectors

• Venue - Any debt collector who brings any legal action

on a debt against any consumer shall—

• (1) in the case of an action to enforce an interest in real

property securing the consumer’s obligation, bring such

action only in a judicial district or similar legal entity in which such real property is located; or


• 811. Legal actions by debt collectors

• (2) in the case of an action not described in paragraph

(1), bring such action only in the judicial district or

similar legal entity -

• (A) in which such consumer signed the contract sued

upon; or

• (B) in which such consumer resides at the

commencement of the action.


• 813. Civil liability

• Amount of damages

• Except as otherwise provided by this section, any debt

collector who fails to comply with any provision of this

title with respect to any person is liable to such person

in an amount equal to the sum of -

• (1) any actual damage sustained by such person as a

result of such failure;



• (2) (A) in the case of any action by an individual, such

additional damages as the court may allow, but not

exceeding $1,000; or

• (B) in the case of a class action,

• (i) such amount for each named plaintiff as could be

recovered under subparagraph (A), and



• (ii) such amount as the court may allow for all

• other class members, without regard to a minimum

• individual recovery, not to exceed the

• lesser of $500,000 or 1 per centum of the net

• worth of the debt collector;



• (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.

HOW CAN THIS AFFECT ME

• HIPAA does not apply to process serves

• FDCPA exempts process servers

• Why bore me with the mess, I seem protected


• Term “You” meaning you, your company, your

administrative staff or your process server(s)


• HIPPA violations made against you to your client

• FDCPA violations made against you

• Discussion