Oral Communication: Myths

1
Oral Communication Myths Facts

• Susan A. Miller, JD
• WEDI-SNIP Security Privacy Co-chair
• The Kearney Group

2
The clock is ticking...

• Privacy Modification Final Rule -- 8-14-02
• Still retains minimum necessary oral
  communications requirements
• Compliance deadline is still April 03
• incidental communication such as overhearing a
  fragment of conversation is permissible--only if
  reasonable safeguards are in place
• So what is areasonable safeguard?

3
The clock is ticking...

• Privacy Guidance from OCR -- 12-3-02
• Incidental Uses and Disclosures includes oral
  communications
• Two Level Review
• 1) reasonable safeguards
• 2) minimum necessary
• Compliance deadline is still April 03
• So what is areasonable safeguard?

4
GUIDANCE states ...

• Oral communications often must occur freely and
  quickly in treatment settings. Thus, covered
  entities are free to engage in communications as
  required for quick, effective, and high quality
  care.

5
Reasonable safeguards are not ...

• Structural changes
• Encryption of wireless or other emergency medical
  radio communication
• Encryption of telephone systems
• Soundproofing of rooms

6
OCR Guidance

• Covered entities also may take into
  consideration the steps that other prudent health
  care and health information professionals are
  taking to protect patient privacy.
• Best Practices, local, regional, national

7
OCR Guidance

• In areas where multiple patient-staff
  communications routinely occur, use cubicles,
  dividers, shields, curtains, or similar barriers
  as may constitute a reasonable safeguard.
• Practical Advice

8
OCR Guidance

• CEs must evaluate what measures make sense in
  their environment and tailor their practices and
  safeguards to their particular circumstances.
• Practical Advice

9
Reasonable safeguards are...

• Standards-based solutions
• Best practices-based solutions
• Solutions that can be measured monitored
• Solutions that are neither onerous, burdensome,
  disruptive or expensive to fix

10
Whos policing this?

• The regulation permits you to file a complaint
  against a CE with the Office of Civil Rights at
  DHHS
• In reality, States Courts are already using the
  HIPAA privacy regulation as the standard of
  care to make judgments
• See 60 examples at www.healthprivacy.org

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E.g.,99 Washington, DC

• A Washington, DC jury ordered a local hospital to
  pay 25, 000 for failing to keep a patients
  medical records confidential. Coworkers learned
  of the victims HIV status after an employee at
  the Washington Hospital Center revealed
  information in his medical record.
• - P. Slevin, Man Wins Suit Over Disclosure of
  HIV Status, The Washington Post, 12-30-99, p B4

12
E.g.,98 California

• In 1998, Longs Drugs in California settled a
  lawsuit filed by an HIV positive man. After a
  pharmacist inappropriately disclosed the mans
  condition to his ex-wife, the woman was able to
  use that information in a custody suit. However,
  rather than pursue the suit, the man chose to
  settle to avoid a court trial that could result
  in news coverageof his illness.
• Longs Drugs Settles HIV Suit, San Diego
  Union-Tribune, 9-10-98, p. A3

13
E.g.,02 Wisconsin

• A jury in Waukesha, WI found that an emergency
  medical technician (EMT) invaded the privacy of
  an overdose patient when she told the patients
  co-worker about the overdose. The co-worker then
  told the nurses at West Allis Memorial Hospital,
  where both she and the patient were nurses. The
  EMT claimed she called the patients co-worker
  out of concern for the patient. The jury, found
  that regardless of her intentions the EMT had no
  right to disclose confidential sensitive
  medical information, and directed the EMT and her
  employer to pay 3000 for the invasion of
  privacy.
• L. Sink, Jurors Decide Patient Privacy Was
  Invaded, Milwaukee Journal Sentinel, 5-9-02

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Reasonable safeguards are...

• Standards-based solutions
• Best practices-based solutions
• Solutions that can be measured monitored
• Solutions that are neither onerous, burdensome,
  disruptive or expensive to fix

15
Six Myths Three Facts about Oral Privacy

• Oral privacy is subjective (no its not)
• Oral communication cant be measured or
  monitored (yes it can)
• There are no standards or best practices for
  oral communication (yes there are)
• Oral privacy issues will be expensive to fix
  (no they arent)
• Best solution is to retrain staff to be
  discrete (good luck!)
• We dont need to do anything thanks to loopholes
  in the Rule (doing nothing is not a reasonable
  safeguard)

16
Fact 1 standards are objective, well known
widely practiced

• ISO 60268-16
• ISO 9921-1
• ANSI S3.2
• ANSI S3.5 (first published in 1969!)
• ASTM 1130-90
• ASTM 1110-01

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What the standards do

• Define the measurement framework (AI)
• Quantitatively define three levels of privacy
• - confidential privacy (AIlt0.05)
• - normal privacy (AIlt0.20)
• - minimal privacy (AIlt0.35)
• Define measurement methods tools
• These standards are widely used and of long
  standing. The first of them was originally
  published in 1969 and has been reaffirmed as
  recently as 1997

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Fact 2 solutions are available now theyre
cheap

• NRC-rated ceiling tiles absorb sound can be
  used where appropriate
• NRC-rated, portable panels absorb/block sound
• STC-rated high-TL curtainsseparate patient beds
  block sound
• Some white noise systems meet the ASTM oral
  privacy standard (normal privacyAIlt0.2)
• There is no need to build walls

19
Many solutions are literally off the shelf

• Tiles, panels, curtains white noise are
• rated to known accepted standards
• easy to implement
• readily available
• very affordable
• involve no staff re-training

20
Blocking speech intelligibility is a best
practice

• White noise (also called sound masking)
• blocks the intelligibility of speech
• was developed decades ago and used by DoD
  others for whom oral privacy is a deadly serious
  issue (yes, loose lips still do sink ships)
• is the most effective way to ensure oral privacy
• creates a low-level background sound which
  matches the voice spectrum and is unobtrusive but
  extremely effective

21
White Noise effective affordable

• White noise or sound masking
• Used to cost as much as a minimum of 15,000 plus
  2.50 or more per square foot of treated
  area--but that was awhile ago
• Miniaturized, digital technology (better
  performance than the old way) now costs 150
  (enough for a waiting room) or about 0.50 per
  square foot can be used only where needed

22
Fact 3 Compliance can be measured monitored

• Available instruments measure oral privacy
  objectively in order to
• set a benchmark based on a scale of confidential
  privacy or normal privacy
• track compliance on a regular basis
• maintain an objective record of compliance over
  time
• can monitor compliance in numerous locations

23
Case Study Chain Drug Store
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Case Study Hospital Nurses Station
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Case Study Hospital Compliance Complete Survey
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Case Study Mental Health Clinic
27
Summary

• Oral privacy is protected
• The April 03 deadline is real
• Standards best practices abound
• Compliance with the law can be measured
• Solutions are available cheap

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Speaker Information

• Sue Miller may be reached via email at
  Sue_at_TheKearneyGroup.com