COMMUNITY PRACTICE

Pharmacy boards are exempt from HIPAA

Pharmacists who try to invoke Uncle Sam's new medical privacy mandate to sidestep questions posed by their state pharmacy board are legally out of luck, according to the attorney representing the National Association of Boards of Pharmacy.

Since state pharmacy boards are not covered entities as defined by federal bureaucrats, they are not directly subject to the Health Insurance Portability & Accountability Act (HIPAA), according to attorney John Atkinson. Speaking at NABP's recent annual legislative conference in Washington, D.C., he said he wasn't telling board members to "ignore HIPAA" but assured them that his Evansville, Ill., law firm has concluded that their regulatory activities are beyond the long arm of the healthcare privacy mandate.

"Boards of pharmacy do not generally come under the direct restrictions of the [HIPAA] rules in regard to using or disclosing healthcare information," said Atkinson. "Boards should continue to carry out their duties and responsibilities as they have in the past. Boards should have knowledge of HIPAA since violations of that act by pharmacists, pharmacies, or other healthcare entities may require possible investigation and potential disciplinary actions under the practice act. Boards should also be aware of the potential tangential effect of HIPAA in such areas as the inspection process. More important, however, boards should not be intimidated by any misconceptions concerning the applicability of HIPAA."

Pharmacists can't hide behind the HIPAA privacy rules when it comes to answering healthcare-related questions on pharmacy board licensure or licensure renewal application. Boards have the legal right to ask whether the applicant has been addicted to chemical substances or treated for such addiction or has a disease or condition that would interfere with his or her ability to safely and competently perform as a pharmacist. Board members should, however, check their own state confidentiality statutes and regulations, said Atkinson who added, "In our view, the likelihood of the applicability of HIPAA to the licensure application process is nil. HIPAA was not meant to curtail a board of pharmacy's responsibility to protect the public health and welfare."

Exercising their powers as a health oversight agency, state pharmacy boards can also continue to issue subpoenas, which may cover protected health information (PHI). While board complaints against practitioners wouldn't ordinarily contain PHI, HIPAA could not be used to prohibit such disclosures. In terms of the hearing process, state law governs whether PHI can be introduced by the pharmacy board, Atkinson told attendees. State laws also control the release of board records. He added that NABP's disciplinary databank and the release of information in that bank during the licensure transfer process is not subject to HIPAA.

One HIPAA trap that has touched state pharmacy boards is the inspection process, said Atkinson. The HIPAA cops at the Department of Health & Human Services' Office of Civil Rights (OCR) ruled last spring that when pharmacy board inspectors skim through Rx files, it constitutes a disclosure of PHI. While NABP has requested OCR to reconsider its opinion, some pharmacists have asked for advance notice of an inspection and what records will be viewed, said Atkinson.

"Some are apparently taking the position that the information which the pharmacy has is PHI and cannot be revealed to inspectors under HIPAA," Atkinson added. "We disagree with OCR's opinion, and we certainly disagree with the contention by a pharmacy that inspectors cannot skim or view records in the inspection process because of HIPAA. In our view, inspectors should continue to follow their existing policies on inspections. OCR's decision more directly affects the pharmacist and pharmacy."

Carol Ukens

 

Carol Ukens. Pharmacy boards are exempt from HIPAA. Drug Topics Oct. 6, 2003;147:34.