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What exactly is liability going to cover an MT for? sm - wondering

Posted: Sep 03, 2013

I've been hearing a lot about needing to possibly now have liability insurance but what are we being insured against? Liability for what? A mistake in the report? I've always been under the impression that the doctors are supposed to be reading their reports before signing and if they sign it with a mistake, that is THEIR responsibility.

Breach - crazycatwoman

[ In Reply To ..]
Here's a summary. We will fall under the "Business Associates" section.

HIPAA Final Rule highlights for practitioners

The rule mandates changes to privacy notices and modifies breach notification requirements, among other provisions.

By Legal & Regulatory Affairs staff

March 14, 2013â��The Department of Health and Human Services (HHS) released the Health Insurance Portability and Accountability Act (HIPAA) Final Rule on Jan. 25, 2013. The Rule goes into effect March 26, 2013 and covered entities (CE) and business associates must comply with the requirements of the Final Rule by Sept. 23, 2013. The Final Rule enhances patient privacy protections, provides individuals with new rights to their health information and strengthens the governmentâ��s enforcement of and penalties under the law.

The APA Practice Organization (APAPO) will be making detailed guidance available for practitioners well in advance of the September 2013 compliance deadline. The following is a brief overview of some of the changes that will be coming. The last section provides more information on next steps.

For more information about the Privacy Rule and frequently used terms, please refer to the Privacy Rule Primer (PDF, 1.5MB) available on APAPOâ��s Practice Central website.

Changes to Notice of Privacy Practices

Changes were made to the information that is now required in the CEâ��s Notice of Privacy Practices (Privacy Notice). CEs will need to update their Privacy Notices as required by the law. The updated Privacy Notice need not be given to existing patients who have already received a Privacy Notice. However, a copy of the updated Privacy Notice must be posted in the practitionerâ��s office and all new patients must be given a copy.

Updated Privacy Notices must include the following statements, among others:

Most uses and disclosures of psychotherapy notes, uses and disclosures of protected health information (PHI) for marketing purposes, and disclosures that constitute a sale of PHI require patient authorization;

Other uses and disclosures not described in the Privacy Notices will be made only with authorization from the individual;

Patients have the right to restrict certain disclosures of PHI to health plans/insurance companies if the patient pays out of pocket in full for the health care service; and

Affected patients have the right to be notified following a breach of unsecured protected health information.

Modifications to the Breach Notification Rule

In the Final Rule, HHS clarifies that an â��impermissible use or disclosureâ�� of PHI is presumed to be a breach unless the CE or business associate demonstrates that there is a â��low probability that the protected health information has been compromised.â�� Breach notification is not necessary under the Final Rule if a CE or business associate demonstrates through a documented risk assessment that there is a low probability that the PHI has been compromised.

CEâ��s and business associates must assess the probability that the PHI has been compromised based on a risk assessment that would be performed routinely following any security breaches. The risk assessment considers the following factors:
1.
Nature and extent of PHI involved;

2.
To whom the PHI may have been disclosed;

3.
Whether that PHI was actually acquired or viewed; and

4.
The extent to which the risk to the PHI has been mitigated (for example, assurances from recipient that information has been destroyed or will not be further used or disclosed).

Providers are required to give notification of a breach unless the information was secure. If the risk assessment fails to demonstrate that there is a low probability that the PHI has been compromised, breach notification is required. This risk assessment should be documented in your records for all potential breaches.

Providers will need to update their incident response and breach notification processes to reflect the change from a â��risk of harmâ�� standard to a â��presumption of breachâ�� standard and to include the four factor assessment. It is important to note that HHS includes not just unauthorized access to PHI, but also impermissible uses by knowledgeable insiders in its definition of breach requiring an assessment.

Business Associates

The Final Rule requires that business associates and their subcontractors comply with the HIPAA rules in the same manner as covered entities. Any entity that â��creates, receives or transmitsâ�� PHI on behalf of a covered entity may now be held directly liable for impermissible uses/disclosures. Business associates and subcontractors must conduct risk assessments under the HIPAA Security Rule.

Although business associates are now directly regulated under HIPAA, covered entities are still responsible for their business associatesâ�� actions. Therefore, CEs must ensure that they obtain satisfactory assurances of HIPAA compliance through their business associate contracts and business associates must do the same for their subcontractors.

Penalty Structure

HHS set up a four-tier financial penalty structure for breaches deemed serious enough to warrant a penalty imposed by the federal government. Based on culpability, fines range from $100 to $50,000 per violation with a cap of $1.5 million on violations of identical provisions happening within the same calendar year. High-level penalties are targeted at CEs who are being willfully neglectful or making no attempt to correct problems.

This does not specifically state - that the BA MUST

[ In Reply To ..]
hold errors and omissions insurance. I think the Covered Entity should be responsible for that, since they would most likely be the ones fined and such for any "breaches." If it becomes a requirement for the transcriptionist to have this type of insurance, I believe the pay should reflect the amount having to be paid, since it is the covered entity requiring us to have it.

The BA can now be held liable for breaches - Liability

[ In Reply To ..]
My understanding is that now the business associate can be held liable for breaches and be fined, so that would be the primary reason for liability insurance. No, the BA is not mandated to hold the insurance under HIPAA, but I think some companies are starting to require it from their BAs.

It's not HIPAA it's HITECH - OldMT

[ In Reply To ..]
It is not mandated by the company, it is mandated by the gov. If you are an IC you can raise your prices to try and offset the cost, but good luck with that. Bottom line you have to have it in the "real world"! But you can always gamble.

not necessarily - I just signed a BA

[ In Reply To ..]
with my company, per HITECH, and was not asked to have e&o insurance. Perhaps it depends on state you live in. I would think that a company would tell you it is required when signing the BA agreement, if that were the case. Mine does not. and I DO live in the "real world" thank you very much. snipe snipe snipe.

Not seeing it - under HITECH

[ In Reply To ..]
I don't see where there is a mandate to have liability insurance under the HITECH Act for BAs. I definitely see WHY a BA would need liability under HITECH, but I don't see an actual mandate for it. Do you have something you can quote?

Mandate wording . . . - OldMT

[ In Reply To ..]
My point was that gov has mandated, via the HITECH Act, that BAs are just as liable for PHI as the entity. There seems to be confusion between E&O insurance and liability insurance, what the entity is responsible for and what the BA is responsible for. All the new contracts coming out are due to the September 2013 deadline for new privacy guidelines/ notices and that is generating new contracts for the MT/BA. It was not my intention to imply that the government was mandating you buy liability insurance, but in reality it might be a wise choice if you continue to work as an IC. My statement of "here in the real world" was in reference to the reality of how many people in our society will file a lawsuit any chance they get--not that you are not in the real world. No sniping here!

Thanks, I see. I thought E&O was the same as - professional liability?

[ In Reply To ..]
I thought E&O was another name for professional liability insurance. I think people get confused because they assume errors and omissions only pertains to the report itself and not other types of errors, such as a PHI breach. Yes, I agree it might be a wise choice to get liability insurance as an IC, and I think, from reading here, that some companies are going to start requiring it from their MTs.

No sniping here either! Just trying to understand.

My BA form arrived 3 days ago and - Karla

[ In Reply To ..]
does not say anything about requiring or even needing liability.

Question for you - (see message)

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Was your BA form from an IC position already established or is this a new position? I was just curious. I have not heard a peep from the company I contract with about this.

Not a new position, been there several - years- NM

[ In Reply To ..]
..

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