Duty to report Vs. HIPAA

[HospitalOfc.]

I was wondering if anyone in Wisconsin is familiar with this statute, and if so how do you manage to do this and still observe HIPAA regulations on confidentiality?

940.34(1)(b)
(b) Whoever violates sub. (2) (b) is guilty of a Class C misdemeanor and is subject to discipline under s. 440.26 (6).
940.34(1)(c)
(c) Whoever violates sub. (2) (c) is guilty of a Class C misdemeanor.
940.34(2)
(2)
940.34(2)(a)
(a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim.
940.34(2)(b)
(b) Any person licensed as a private detective or granted a private security permit under s. 440.26 who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief
940.34(2)(c)
(c)
940.34(2)(c)1.
1. In this paragraph, "unlicensed private security person" means a private security person, as defined in s. 440.26 (1m) (h), who is exempt from the permit and licensure requirements of s. 440.26.
940.34(2)(c)2.
2. Any unlicensed private security person who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.


I have brought this up to our legal department, but they seem to be ignoring it, I am mostly concerned about our Officers liability in situations where a patient has committed a crime. At this point our policies severely hogtie us in notifying the police of anything involving a patient. Case in point, our current policies dictate that any drugs found on patients are to destroyed and police are not to be notified. We had to fight with administration just to be able to destroy, until recently they said that because the drugs are the patient’s property we should keep them for the patient and return them to them when they are discharged.
Does anyone else in Wisconsin, or from any other state that has a similar statute, have any input on how to go about reconciling this and HIPAA?

[N. A. Corbier]

Contact the District Attorney in your area, and request a legal brief on the matter. I am aware of the statute, especially the part where a licensed security person is doubly liable for failure to report a crime.

Basically, HIPPA is not criminal. WI State Statute is.

[aka Bull]

HIPAA is for the protection of health information. The Department of Health and Human Services has put in place a privacy rule on what they call "PHI", protected health information.

There are exceptions to the rules for the legal release to law enforcement.

In our hospital we do not return illegal items or suspected illegal drugs back to the person (whether or not they are a patient) we took them from. We turn it over to the local police and identify from whom we took it from. The police are then free to decide what course of action they wish to take.

Nor do we hesitate to bring in the police when there has been a crime committed on our property, again whether the suspect is a patient or not.

To our undertsnading HIPAA was never intended to protect criminal activity.

Here is a link to a pdf on HIPAA put out by HHS:

http://www.hhs.gov/ocr/privacysummary.pdf

Page nine of the pdf talks about releasing information for law enforcement purposes.

As N.A. suggested, talk with your local DA's Office. I'd hate to see any officer suddenly charged with aiding and abetting criminal activity for not reporting it to authorities.

[Bill Warnock]

HIPAA is for the protection of health information. The Department of Health and Human Services has put in place a privacy rule on what they call "PHI", protected health information.

There are exceptions to the rules for the legal release to law enforcement.

In our hospital we do not return illegal items or suspected illegal drugs back to the person (whether or not they are a patient) we took them from. We turn it over to the local police and identify from whom we took it from. The police are then free to decide what course of action they wish to take.

Nor do we hesitate to bring in the police when there has been a crime committed on our property, again whether the suspect is a patient or not.

To our undertsnading HIPAA was never intended to protect criminal activity.

Here is a link to a pdf on HIPAA put out by HHS:

http://www.hhs.gov/ocr/privacysummary.pdf

Page nine of the pdf talks about releasing information for law enforcement purposes.

As N.A. suggested, talk with your local DA's Office. I'd hate to see any officer suddenly charged with aiding and abetting criminal activity for not reporting it to authorities.

Well spoken aka Bull. I have lifted the following from 18 USC:
"Office of the Law Revision Counsel, U.S. House of Representatives
18 USC Sec. 4 01/19/04
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 1 - GENERAL PROVISIONS
Sec. 4. Misprision of felony
-STATUTE- Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
-SOURCE- (June 25, 1948, ch. 645, 62 Stat. 684; Pub. L. 103-322, title XXXIII, Sec. 330016(1)(G), Sept. 13, 1994, 108 Stat. 2147.)
-MISC1- HISTORICAL AND REVISION NOTES Based on title 18, U.S.C. 1940 ed., Sec. 251 (Mar. 4, 1909, ch. 321, Sec. 146, 35 Stat. 1114). Changes in phraseology only.
AMENDMENTS 1994 - Pub. L. 103-322 substituted "fined under this title" for "fined not more than $500".
-SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1531 of this title; title 50 section 422."
Most states have this type of statute or those referred to as "facilitation" meaning having knowledge of or encouraging.
Enjoy the day,
Bill

[mh892]

We had to fight with administration just to be able to destroy, until recently they said that because the drugs are the patient’s property we should keep them for the patient and return them to them when they are discharged.

This in itself sounds like possession and distribution on the part of the SO? You fellas seem to be caught in a catch 22.

[N. A. Corbier]

We had to fight with administration just to be able to destroy, until recently they said that because the drugs are the patient’s property we should keep them for the patient and return them to them when they are discharged.

This in itself sounds like possession and distribution on the part of the SO? You fellas seem to be caught in a catch 22.

Oooh, you're right. It does sound like several criminal elements... Off the top of my head:

Posession of a controlled substance
Failure to report a felony
Misprison of a felony
Distribution of a controlled substance without license
Aiding and Abetting Posession of a Controlled Substance
Conspiracy to distribute controlled substances without a license

BTW, this is one of the reasons that hospitals, resorts, and other things use private security instead of law enforcement officers. If it was off-duty police working there... The police would have no choice in arresting, it'd be their career.

[Bill Warnock]

Oooh, you're right. It does sound like several criminal elements... Off the top of my head:

Posession of a controlled substance
Failure to report a felony
Misprison of a felony
Distribution of a controlled substance without license
Aiding and Abetting Posession of a Controlled Substance
Conspiracy to distribute controlled substances without a license

BTW, this is one of the reasons that hospitals, resorts, and other things use private security instead of law enforcement officers. If it was off-duty police working there... The police would have no choice in arresting, it'd be their career.

Nathan, what you have said is quite true, but misprison and facilitation statutes clearly anyone with knowledge.
As a former associate found out to his sorrow, disclosure works both ways. If law enforcement interviews anyone remotely connected with these happenings admits to having seen what happened and did not take positive action, from Joe Dumb the rag man, to staff, to administrators, to security personnel or mere observers can be prosecuted. When I called a friend in the local commonwealth attorney's office, got that earful.
I asked about LEOs, Nathan in addition to losing the badge, they are looking at jail time! Apparently, nobody is off the hook.
Enjoy the day,
Bill

[aka Bull]

We had to fight with administration just to be able to destroy, until recently they said that because the drugs are the patient’s property we should keep them for the patient and return them to them when they are discharged.

This in itself sounds like possession and distribution on the part of the SO? You fellas seem to be caught in a catch 22.

Destroying the drugs is a step in the right direction, but the not notifying the police is a problem.

I mean, suppose those drugs don't get destroyed? Or, what system is in place to show how those drugs were destroyed? Plus, suppose the police somehow become involved with the patient and find out evidence of criminal activity was destroyed - ouch. Having the police respond and take the illegal items/drugs absolves the officer(s) and hospital of any argument that the suspected narcotics/items were not properly handled.

Your administration needs someone, like the District Attorneys Office, to get involved with them in setting policy on handling issues of this nature. Not to mention that most states have laws requiring medical authorities notify law enforcement of certain issues/crimes (like gunshot wounds, stabbings, child/adult abuse, domestic violence, suspected sexual assaults, ect.) which HIPAA clearly states are exceptions to the release of PHI. These people need to re-evaluate their policies and prevent potential legal problems.

[N. A. Corbier]

Bill: Misprison of Office is a harsh mistress indeed. FBI loves that.

Bull: I think you're on the right track here... There is no way that HIPAA can superceed criminal law. Its a federal regulation designed to protect hospital patient records. Not to faciliate criminal operations.

It sounds like the hospital in both FL and WI are using this as an excuse to keep their noses clean and not "inconvience" the patients by having them arrested. Also, it does make for bad press in areas where the media is bored enough to start reporting things like that.