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Know when reporting illegal aliens is appropriate

HIPAA Training Advisor, March 23, 2006

HIPAA TRAINING ADVISOR
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Volume 2, Issue 6

Thursday, March 23, 2006

HIPAA TRAINING ADVISOR is a free, biweekly e-mail newsletter of tips and information on training your healthcare staff on HIPAA noncompliance.

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Know when reporting illegal aliens is appropriate

The details surrounding a situation will determine whether alerting a government agency about a suspected illegal alien will violate that person's privacy, says Rebecca L. Williams, RN, JD, partner at Davis Wright Tremaine, LLP, in Seattle. First, determine whether you're even disclosing PHI, she says.

If the suspected illegal alien is someone visiting a patient, HIPAA is not a factor; if the person is a patient, you might be disclosing PHI. "Remember, PHI includes demographic information, and that could include citizenship," Williams says.

Besides treatment, payment, and healthcare operations, you may use or disclose PHI without authorization for

  • uses and disclosures required by law
  • disclosures for law enforcement purposes
  • uses and disclosures for specialized government functions, including national security and intelligence activities

Unless HIPAA permits the disclosure of PHI to law enforcement or government officials, the disclosure will constitute a privacy violation. The rule describes several situations in which you may disclose PHI to law enforcement personnel, including when you, in good faith, believe the PHI to be evidence of a crime that occurred on your premises.

Therefore, if an individual on your premises claims to be an American citizen and you, in good faith, believe that the PHI proves that the patient is an illegal alien, you may report the suspected crime and disclose the PHI.

For example, this might occur if the individual claims healthcare benefits to which only an American citizen is entitled or otherwise asserts citizenship to obtain benefit. In some states, illegal aliens are entitled to certain benefits, so be reasonably certain that the individual's actions constitute a crime before you disclose PHI to law enforcement officials.

Ask yourself whether you are required to make the disclosure and whether HIPAA permits it, Williams says. If state law requires you to disclose the information, you must do so. If you are assisting law enforcement with an ongoing investigation or reporting a crime, HIPAA permits but doesn't require you to do so. If someone whom you suspect is an illegal alien waves around a knife or tries to defraud your organization, report it, she says. In such a situation, the person presents an obvious threat. If there is no clear threat or crime, consult your policies and procedures before reporting the person's presence, says Williams.

"Make sure you have policies and procedures in place for determining when it is appropriate to contact law enforcement or government officials," she says. Use a two-tier approach, she says. Instead of training employees to report such incidents to law enforcement or government agencies, train staff to report them to the privacy official or a manager.

That person can then determine what's in the best interest of the organization. Although treating patients who don't have insurance or the financial means to pay for their treatment could financially drain your organization, unnecessarily reporting illegal aliens could turn away good, paying patients, says Williams.

Editor's note: Adapted from "Reporting illegal aliens not a clear situation," Briefings on HIPAA, March 2006.

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