Tonight on Marti Oakley's T. S. Radio: Hospice Survivors and Victims with Carly Walden

5:00 pm PST … 6:00 pm MST …
7:00 pm CST … 8:00 pm EST

Pam Murray is going to share with us how her mother-in-law was murdered by hospice. Her family was lied to by several involved in the unnecessary admission to Hospice. When this finally ended, she found that her mother-in-law was on 19 medications which included the lethal drug cocktail that hospice uses. Morphine, Ativan, and Seroquel were used in combination in this particular case, along with so many other drugs.

Please remember that YOU have a right to refuse Hospice and to revoke it.

https://www.nhpco.org/sites/default/files/public/regulatory/DischargeTS.pdf

Also, keep in mind that HIPPA (patient privacy) does not exist to protect the privacy of the patient, but rather, to protect medical providers and others from exposure for misdiagnosis, medical neglect, unnecessary drug applications, and other wrong doing which may be evidenced in the medical records.

Please tune in to tonight’s show as we continue to try to save lives here on Hospice Survivors and Victims Radio!

LISTEN TO THE SHOW LIVE or listen to the archive later

HIPAA’s Use as Code of Silence Often Misinterprets the Law

How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:

 ■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.

Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog?

Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.

“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”

■ Years ago, Patricia Gross, then 56, and a close friend had taken refuge in a cafe at Brigham and Women’s Hospital in Boston, where Ms. Gross’s husband was dying of cancer. She was lamenting his inadequately treated pain and her own distress when a woman seated at a nearby table walked over.

“She told me how very improper it was to be discussing the details of a patient’s treatment in public and that it was a Hipaa violation,” Ms. Gross recalled.

■ In 2012, Ericka Gray repeatedly phoned the emergency room at York Hospital in York, Pa., where her 85-year-old mother had gone after days of back pain, to alert the staff to her medical history. 

“They refused to take the information, citing Hipaa,” said Ms. Gray, who was in Chicago on a business trip.

“I’m not trying to get any information. I’m trying to give you information,” Ms. Gray told them, adding that because her mother’s memory was impaired, she couldn’t supply the crucial facts, like medication allergies.

By the time Ms. Gray found a nurse willing to listen, hours later, her mother had already been prescribed a drug she was allergic to. Fortunately, the staff hadn’t administered it yet.

Each scenario, attorneys say, involves a misinterpretation of the privacy rules created under the Health Insurance Portability and Accountability Act. “It’s become an all-purpose excuse for things people don’t want to talk about,” said Carol Levine, director of the United Hospital Fund’s Families and Health Care Project, which has published a Hipaa guide for family caregivers.

Intended to keep personal health information private, the law does not prohibit health care providers from sharing information with family, friends or caregivers unless the patient specifically objects. Even if she is not present or is incapacitated, providers may use “professional judgment” to disclose pertinent information to a relative or friend if it’s “in the best interests of the individual.”

Hipaa applies only to health care providers, health insurers, clearinghouses that manage and store health data, and their business associates. Yet when I last wrote about this topic, a California reader commented that she’d heard a minister explain that the names of ailing parishioners could no longer appear in the church bulletin because of Hipaa.

Wrong. Neither a church nor a distraught spouse is a “covered entity” under the law.

Last month, Representative Doris Matsui, Democrat of California and co-chairwoman of the Democratic Caucus Seniors Task Force, who has heard similar complaints from constituents, introduced legislation to clarify who can divulge what and under what circumstances. The proposed bill would require the Department of Health and Human Services, which last year issued new Hipaa “guidance,” to make that statement part of its regulations and to create model training programs for providers and administrators, patients and families.

“A lot of times it’s just misunderstanding what is and isn’t allowed under Hipaa,” Representative Matsui said in an interview.

So, what is and isn’t?

Family members can provide information, as Ms. Gray attempted to do. “How does keeping information confidential stop you from listening to someone?” said Eric Carlson, the directing attorney for Justice in Aging, a legal advocacy group in California. “There’s no Hipaa privacy consideration there.”  (Continue Reading)

Full Article & Source:
Hipaa’s Use as Code of Silence Often Misinterprets the Law

3 Powers of Attorney Everyone Needs

The words “power of attorney” can sound like something from a movie or TV show: the villain tricks an innocent, unsuspecting person into giving away their legal rights… until, of course, the hero steps in at the last moment to save the day.

In reality, powers of attorney are tools that can be for good, not evil – especially these:

Health Care Power of Attorney
A Health Care Power of Attorney allows you to appoint another individual, usually called your agent, to make health care decisions on your behalf.

Unlike a Living Will, which typically only addresses situations involving life-sustaining medical treatment, a Health Care Power of Attorney can cover a broad range of health care decisions and is not limited to instances of terminal illness or permanent coma. It’s a comprehensive and flexible document that allows a person you trust to weigh the facts and legally speak for you according to guidelines you provided. You specify that you want all medication options to be exhausted, set in place a blanket do-not-resuscitate order… or any options in between those two extremes.

HIPAA Power of Attorney
The Health Insurance Portability and Accountability Act (HIPAA) controls how health care providers can share your personal health information, protecting your privacy and confidentiality.

Durable Power of Attorney
A Durable of Attorney gives a person, referred to as an agent or “attorney in fact, the legal authority to act on your behalf. Unlike a Health Care Power of Attorney, which covers medical situations, a Durable Power of Attorney allows you to choose who will act on your behalf in a wide variety of financial or business situations.

Durable Powers of Attorney are extremely flexible. You can limit your agent’s authority to a specific situation, like closing on the sale of a home or signing a specific contract, or give them authority over a broad range of situations or circumstances. A Power of Attorney can be temporary or permanent, can take effect only if you are incapacitated or unable to make decisions on your own, and can be revoked at any time.

Full Article and Source:
Three Powers of Attorney Everyone Needs

Special Needs Adult Children Need A Plan for Their Future

After a lifetime of caring for their child at home, parents of children who are intellectually and/or developmentally challenged don't want to give up their authority to strangers, but what happens if they haven't established plans for when they are too sick to provide care or have passed away?

For decades in their homes, many families have provided full-time care for family members who are severely disabled, without accessing in-home social services. They may have resisted tapping into government programs or didn't trust others to help. Some have cared for children with multiple disabilities who don't fit into supported housing scenarios. Whatever the case may be, parents should not hesitate to find out what they can do to provide for their adult child with special needs when they are gone.

With a 10-year wait for home and community-based programs in Texas, it often takes a crisis such as the death of a parent, a medical emergency or another tragic event to get priority on the waiting list.

Establishing a decision-making process during the parents' lifetime reduces distress for the adult child who is disabled when transitioning from home to community services.

If an adult child who is disabled has capacity, then it's important to put advance directives in place, including a Durable Financial Power of Attorney, Medical Power of Attorney, HIPAA Authorization, Physician's Directive or "Living Will," and a Declaration of Guardian to allow trusted decision makers to step in when parents are no longer able to.

If the adult child does not have the requisite capacity to execute advance directives, then a guardianship will need to be established for decision making. Putting a guardianship in place ahead of time, during the parents' lifetime, eases the transfer of decision-making.

Full Article and Source:
Elder Law:  Special Needs Adult Children Need a Plan for Their Future

Caregiver Accused Of Abusing Patient After Potato Chip Argument

(Memphis) A caregiver is out of jail on $100 bond after police said he abused a person he was supposed to take care of.

The abuse sent a mentally disabled man to the doctor with cuts on his face, arms, and hands.

It all started with an argument over a snack that quickly got out of control.

Justin Holmes was paid to take care of a man who couldn’t take care of himself.

The patient is diagnosed with a long list of illnesses, including everything form schizophrenia to specific type of liver disease.

Holmes worked on the job for at least a year, but things took a turn last month.

“I was horrified. That’s pretty, that’s unacceptable. Absolutely unacceptable,” Kimberly Largue said.

Largue sat in her car on Wednesday with her head down in disgust after hearing what happened to her neighbor.

Holmes is accused of beating the mentally disabled man.

“There’s a special place in Hades for folks who would abuse those that are disabled,” Largue said.

According to the police report, Holmes sat on top of the victim and hit him in the face three times with his fists.

The co-worker who broke things up said it all started with a disagreement.

“That’s horrible, that’s absolutely horrible,” said Largue.

The entire argument started over a bag of potato chips, according to the police report.

“A person who can’t handle that kind of situation shouldn’t even be placed in a care giver situation,” Largue said.

The company he worked for, Resources For Human Development, agreed.

A spokesperson said Holmes does not work for the company anymore.

However, the company would not talk about the victim because of federal privacy laws.

“Due to HIPAA regulations, RHD cannot comment at this time,” RHD Communications Manager Kevin Roberts said in a statement.

WREG went to Holmes’ house for his side of the story, but no one answered the door.

Largue said she hopes he does not have the chance to strike again.

“Absolutely not back in the position to take care of someone disabled again,” she said.

Holmes is expected in court Thursday morning.

Full Article & Source:
Caregiver Accused Of Abusing Patient After Potato Chip Argument

Heirs Cry Foul; Say Two Colorado Probate Lawyers Depleted Their Estates

Note: This article originally ran 1/26/14:

Four families with cases in Arapahoe County's probate court say that two attorneys involved in their estates should have disclosed a real estate investment they made together before charging the estates at least $400,000 in fees.

Colorado's disclosure requirements for attorneys generally do not extend to family members of clients, experts said. But the attorneys' joint investment concerned the district's chief judge enough that he issued an order in April that they could not be involved in the same estate cases without court approval.

Last week, the judge ordered one of the attorneys, court-appointed public administrator Tamra Palmer, to advise him of any cases since April in which she has participated with lawyer Jennifer Gormley. Palmer responded that there are four such cases but that she was appointed to each before the judge's April order.

Palmer and Gormley say they are precluded by confidentiality rules from discussing any probate cases. However, each has said they have no conflict of interest. Palmer has told the court the relationship did not influence her decisions and that she had no obligation to disclose her real estate investment with Gormley.

Cliff Battista, who was trustee of his father's estate, said Palmer testified to have him removed, then, on Gormley's recommendation, took his place as a court-appointed trustee. Both lawyers then billed the estate for their work on the case.

"I'm appalled that people have the audacity to do that to someone else," he said.

Full Article and Source:
Heirs Cry Foul, Say Two Probate Lawyers Depleted Their Estates

Florida Appeals Court Rules HIPAA Overrides FL Nursing Home Records Law

Florida law requires that nursing homes furnish to the “spouse, guardian, surrogate, proxy, or attorney in fact” of a former resident a copy of the resident’s records which are in the possession of the facility. The federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) provides that covered entities, such as nursing homes, may only disclose medical records to a patient or his/her “personal representative”. HIPAA defines a personal representative to mean only an “executor, administrator, or other person who has authority under applicable state law to act on behalf of a deceased individual or of the individual’s estate”. Therefore, in many situations, Florida law requires nursing homes to release medical records when HIPAA prohibits it.

In a recent decision by the United States Court of Appeals for the Eleventh Circuit the court ruled that the federal HIPAA law preempted the Florida nursing home records law (Opis Management Resources, LLC v. Florida Agency for Health Care Administration). In this case Opis and several other managers and operators of Florida nursing homes refused to provide the medical records of deceased residents to their spouses and attorneys since they were not the residents’ “personal representatives” as defined by HIPAA. As a result, the Florida Agency for Health Care Administration (“AHCA”) cited the nursing homes for failing to provide the records as required by the Florida law, and the nursing home operators sought relief in federal court.

The federal district court ruled in favor of Opis and the other nursing home operators, and AHCA took an appeal to the Eleventh Circuit Court of Appeals. On appeal AHCA argued that the Florida law did not conflict with HIPAA but merely clarified who should be considered the “personal representative” of the deceased resident. The appeals court rejected AHCA’s argument and said:
The fatal flaw in the State Agency’s argument is that … the unadorned text of the state statute authorizes sweeping disclosures, making a deceased resident’s protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident’s stead.

Full Article and Source:
Federal Appeals Court Rules HIPAA Overrides Florida Nursing Home Records Law

See Also:
Department of Health and Human Services:  Health Information Privacy

Editorial: NY Confiscates 'Private' Records of Psychiatrists

The march to tyranny has picked up fierce momentum in the state of New York, where the criminal Cuomo administration is now issuing subpoenas that demand psychiatrists turn over ALL their records to the state, reports AmmoLand.com.

This is just the first step for the New York government's "HIPAA" committee, whose sole purpose is to "illegally obtain and access the private medical records of potentially millions of NY State Residents."

Regardless of your views on firearms ownership, such actions are absolutely chilling. It puts the government in the position of violating doctor-patient confidentiality for the purpose of the state determining who suffers from "mental health" problems that the state uses to justify almost any action it wishes to take.

This is not a gun rights issue, this is a patient rights issue. If a state government can simply seize all records from all psychiatrists, then it can also use that information to decide whose children to have taken away by CPS... or who to deny the right to vote by having them labeled "mentally incompetent."

Source:
And So It Begins:  New York Government Confiscates Private Records of Psychiatrists in Chilling Orwellian Mental Health Sweep

Federal Appeals Court Sides With HIPAA Over Florida Law in "Catch 22" Case Over the Release of Deceased Patient Records by Nursing Homes

As we first reported in December 2011, it's a common scenario: A Florida nursing home resident dies, and his or her spouse, surrogate, proxy, or attorney requests the resident's medical records.
However, if the nursing home releases the records, it might be violating federal law. If it doesn't, it violates Florida law. A federal trial court then noted this "Catch-22" and declared the Florida law invalid. The decision was appealed and now the U.S. Court of Appeals has affirmed the decision in a decision rendered April 9, 2013. The impact of this decision on nursing homes and other providers is outlined below.

***Conflicting Laws
Florida Statutes Section 400.145 provides that nursing homes "shall furnish to the spouse, guardian, surrogate, proxy, or attorney in fact . . . of a former resident . . . a copy of that resident's records which are in the possession of the facility." Also, "Copies of such records . . . may be made available prior to the administration of an estate, upon request, to the spouse, guardian, surrogate, proxy, or attorney in fact."

However, the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") provides that nursing homes may only release medical records to a patient or his/her personal representative. 45 C.F.R. 164.502(a)(1), (g)(1). When a patient is deceased, "personal representative" means an "executor, administrator, or other person [who] has authority to act on behalf of a deceased individual or of the individual's estate." 45 C.F.R. 164.502(g)(4).

Thus, a person authorized under Section 400.145 can be–but is not always–the same as the personal representative under HIPAA. As a result, Florida law requires nursing homes to release medical records even though doing so might violate federal law.

***The Federal Court's Decision:
Opis Management Resources, Inc., together with four other nursing home providers were cited by the Florida Agency for Health Care Administration ("AHCA") for failing to provide records to spouses or "attorneys in fact" of deceased residents because they were not authorized to receive the records pursuant to HIPAA. Their position was also upheld by the U.S. Department of Health and Human Services Office for Civil Rights when the requestors complained about the nursing homes' actions. They then sought declaratory relief from federal court based on the conflict between state and federal law.

On December 2, 2011, the United States District Court for the Northern District of Florida concluded that Section 400.145 is contrary to HIPAA and, therefore, invalid. Opis Management Resources, LLC v. Dudek, No. 11-400 (N.D. Fla. Dec. 2, 2011). The Court described the following scenarios:

A decedent's spouse, for example, could seek [protected health information] for any number of reasons . . . . A spouse could be trying to establish paternity, or her rights to life insurance. These goals do not conform to HIPAA' s purpose to protect privacy and act in the interest of the patient.

Id (internal citations omitted). States are generally free to pass their own privacy laws, but "provisions of state law which are contrary to HIPAA are preempted unless that state law is 'more stringent.'" Opis Management, No. 11-400 slip op. at 3 (citing 45 C.F.R. § 160.203). Because the Court found section 400.145 provides less protection than HIPAA, not more, it concluded that the state law is preempted.

***The Appellate Court's Decision:
AHCA appealed the trial decision and argued against preemption on the basis that HIPAA provides that any person who has authority to act on behalf of a deceased individual under state law can be treated as a personal representative. According to AHCA, the state statute identifies groups of people who may have access to a deceased resident's medical records "on behalf of" the resident, meaning they should be treated as personal representatives. Since personal representatives under HIPAA enjoy the same access to confidential information as the deceased individual, AHCA argued the two laws complement each other rather than conflict.

The court rejected this argument and noted that the Florida law authorizes sweeping disclosures, "making a deceased resident's protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident's stead." Under HIPAA, a personal representative may only access the decedent's confidential information that is relevant to the personal representation. The court agreed with the trial court's view that Florida's less stringent protection of confidential information frustrated HIPAA' s purpose and was, therefore, invalid. Interestingly, because AHCA did not raise the issue in the lower court of whether the state law was allowed by HIPAA Rule 164.512(a)(1) which allows for the release of PHI "as required by law," the appellate court did not address whether this would have saved the constitutionality of the state law.

***What This Means for Nursing Homes:
Because of the Court's ruling, section 400.145 is invalid and AHCA cannot currently sanction nursing homes for failing to abide by it. Therefore, nursing homes in Florida should only release a deceased resident's medical records to a personal representative of the estate, executor, administrator, or other person authorized to act on behalf of the deceased patient or the deceased patient's estate. If no such person exists, the nursing home should wait for a court to appoint an appropriate person.

Full Article and Source:
Federal Appeals Court Sides With HIPAA Over Florida Law in "Catch 22" Case Over the Release of Deceased Patient Records by Nursing Homes

Protecting Iowa's Senior Citizens

During this video, Senator Dennis Black speaks in depth of the Bob Queener case:



Source:
YouTube: Protecting Iowa's Senior Citizens

See Also:
Update on Bob Queener Case