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From a follow-up diary at GMD:
Following up on yesterday's report below; it may or may not be the case that Pharmacists are required by state law to provide the prescription records of all Schedule II medications to State Police as is being demanded of them. The Pharmacist I spoke to contacted the Secretary of State's office and was advised to comply, however that advise would seem to be in conflict with a report the state Department of Health submitted to the legislature this year specifically in reference to the law which gives police their authority to examine such records (18 VSA 4218). From the report (still looking for a link): "HIPAA contemplates that state laws may conflict with its terms and has been written to address those situations. HIPAA, by its terms, preempts provisions of state law that are contrary to HIPAA, unless state law affords greater privacy protection. When state law affords greater protection than HIPAA, the state law is not preempted and the covered entity must follow state law. HIPAA regulations provide that a state statute is "contrary" to HIPAA if it is impossible for the covered entity to comply with both HIPAA and the state law or if the state law stands as an obstacle to the accomplishment of the full purposes and objectives of HIPAA. 45 C.F.R. § 160.202. Applying this standard, conflicts between HIPAA and section 4218 of Title 18 must be resolved by the covered entity on a case-by-case basis. The pharmacy, as a covered entity, must determine whether HIPAA permits the requested disclosure to DPS, and that determination will depend on the circumstances of the request for the protected health information. As in the examples above, there are circumstances where complying both with HIPAA and section 4218 would not be impossible and the disclosure would be permitted. In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose. For these reasons, VDH and DPS conclude that section 4218 is not contrary to HIPAA. Correspondingly, since the pharmacies are bound by HIPAA and may disclose information only as permitted by HIPAA, any medical privacy concerns are addressed by HIPAA and no revision of section 4218 is necessary." HIPAA, again, is the Health Information Portability and Accountability Act - the federal law which sets down strict guidelines on the privacy of medical records. This would seem to put pharmacists on the hot seat in a big way. They've got the State Police demanding they dump these records in an unprecedented (and unconstitutional) way, the Secretary of State's office advising them they must comply - but the Department of Health telling the legislature it's really up to the Pharmacist to make a judegment call on whether or not the request violates HIPAA, as the State law is not supposed to supercede the federal regime. If I were a pharmacist, I'd be pissed off. Obviously, if I were a patient, I'd be pissed off. Another fiasco brought to us by Vermont's executive branch...
Following up on yesterday's report below; it may or may not be the case that Pharmacists are required by state law to provide the prescription records of all Schedule II medications to State Police as is being demanded of them.
The Pharmacist I spoke to contacted the Secretary of State's office and was advised to comply, however that advise would seem to be in conflict with a report the state Department of Health submitted to the legislature this year specifically in reference to the law which gives police their authority to examine such records (18 VSA 4218). From the report (still looking for a link):
"HIPAA contemplates that state laws may conflict with its terms and has been written to address those situations. HIPAA, by its terms, preempts provisions of state law that are contrary to HIPAA, unless state law affords greater privacy protection. When state law affords greater protection than HIPAA, the state law is not preempted and the covered entity must follow state law. HIPAA regulations provide that a state statute is "contrary" to HIPAA if it is impossible for the covered entity to comply with both HIPAA and the state law or if the state law stands as an obstacle to the accomplishment of the full purposes and objectives of HIPAA. 45 C.F.R. § 160.202. Applying this standard, conflicts between HIPAA and section 4218 of Title 18 must be resolved by the covered entity on a case-by-case basis. The pharmacy, as a covered entity, must determine whether HIPAA permits the requested disclosure to DPS, and that determination will depend on the circumstances of the request for the protected health information. As in the examples above, there are circumstances where complying both with HIPAA and section 4218 would not be impossible and the disclosure would be permitted. In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose. For these reasons, VDH and DPS conclude that section 4218 is not contrary to HIPAA. Correspondingly, since the pharmacies are bound by HIPAA and may disclose information only as permitted by HIPAA, any medical privacy concerns are addressed by HIPAA and no revision of section 4218 is necessary."
"HIPAA contemplates that state laws may conflict with its terms and has been written to address those situations. HIPAA, by its terms, preempts provisions of state law that are contrary to HIPAA, unless state law affords greater privacy protection. When state law affords greater protection than HIPAA, the state law is not preempted and the covered entity must follow state law.
HIPAA regulations provide that a state statute is "contrary" to HIPAA if it is impossible for the covered entity to comply with both HIPAA and the state law or if the state law stands as an obstacle to the accomplishment of the full purposes and objectives of HIPAA. 45 C.F.R. § 160.202. Applying this standard, conflicts between HIPAA and section 4218 of Title 18 must be resolved by the covered entity on a case-by-case basis. The pharmacy, as a covered entity, must determine whether HIPAA permits the requested disclosure to DPS, and that determination will depend on the circumstances of the request for the protected health information. As in the examples above, there are circumstances where complying both with HIPAA and section 4218 would not be impossible and the disclosure would be permitted.
In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose.
For these reasons, VDH and DPS conclude that section 4218 is not contrary to HIPAA. Correspondingly, since the pharmacies are bound by HIPAA and may disclose information only as permitted by HIPAA, any medical privacy concerns are addressed by HIPAA and no revision of section 4218 is necessary."
HIPAA, again, is the Health Information Portability and Accountability Act - the federal law which sets down strict guidelines on the privacy of medical records.
This would seem to put pharmacists on the hot seat in a big way. They've got the State Police demanding they dump these records in an unprecedented (and unconstitutional) way, the Secretary of State's office advising them they must comply - but the Department of Health telling the legislature it's really up to the Pharmacist to make a judegment call on whether or not the request violates HIPAA, as the State law is not supposed to supercede the federal regime.
If I were a pharmacist, I'd be pissed off. Obviously, if I were a patient, I'd be pissed off.
Another fiasco brought to us by Vermont's executive branch...
Get over to the Green Mountain Daily! What are you still reading this sig for?
by odum on Tue Dec 04, 2007 at 05:07:09 AM PDT
If I were Rush Limbaugh, I'd be scared. Though I forgot that he has no compunction about calling in the ACLU when it applies to his own rights.
Intelligent Designer Laments Lapse in Intelligence
by mrblifil on Tue Dec 04, 2007 at 06:22:54 AM PDT
[ Parent ]
but the Department of Health telling the legislature it's really up to the Pharmacist to make a judgment call on whether or not the request violates HIPAA, as the State law is not supposed to supercede the federal regime. If I were a pharmacist, I'd be pissed off. Obviously, if I were a patient, I'd be pissed off.
but the Department of Health telling the legislature it's really up to the Pharmacist to make a judgment call on whether or not the request violates HIPAA, as the State law is not supposed to supercede the federal regime.
As soon as I saw this thread, I knew my pharmacist hubby would be livid. He just told me they'd have to arrest him and cart him off to jail as there would be no way that he would provide the records.
He disagrees with the Dept of Health saying its a judgment call as to whether it violates HIPAA. There is no judgment call here at all, he says. The more restrictive law, in this case the federal HIPAA law, ALWAYS has precedence over the lesser restrictive law, i.e., the state's new crazed tactics.
It is as simple as that. States cannot make laws less restrictive and expect compliance. They can always make laws more restrictive, but not the other way around.
Any pharmacist providing records is wrong. No one has the right to have those records. Privacy is not to be tampered with when it comes to health records.
In order to be walked on, you have to be lying down. Brian Weir
by schoolpsyc on Tue Dec 04, 2007 at 08:10:58 AM PDT
that my pharmacist hubby says that if he had a court order for a specific request for records, he would be forced to comply. However, he said that the court order would need to be highly specific and that it could only apply to one person's records. It would not work to get a court order for a computer dump of records, or for all folks with schedule II meds, etc.
I did ask him if he has ever gotten a court order for records and he said he has, although it is quite infrequent. It can involve cases where they are investigating the death of a patient and want to see the medication history to see if the meds were in anyway related.
We are in Maryland btw.
by schoolpsyc on Tue Dec 04, 2007 at 08:21:26 AM PDT
"It is as simple as that. States cannot make laws less restrictive and expect compliance. They can always make laws more restrictive".
"We are a Plutocracy, we ought to face it. We need, desperately, to find new ways to hear independent voices & points of view" Ramsey Clark, US AG
by Mr SeeMore on Tue Dec 04, 2007 at 09:23:46 AM PDT
wide narrow
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