Hospitals, like all institutions, must abide by all applicable state and federal laws.
Primarily providing legal counsel to MHA and its board, MHA’s legal staff also provide education and information to MHA members and their attorneys throughout the state, and serve as a resource on a variety of health law issues.
Medical Marijuana Resources
In November 2018, Missouri voters approved Amendment 2, authorizing individuals suffering from a list of qualifying conditions to use medical marijuana.
In response, MHA created several resources to assist members as they work through the issues raised by the legalization of medical marijuana in Missouri.
Political and Lobbying Legal Guidelines
Although hospitals and their employees may participate in the political and lobbying process, there are numerous caveats and restrictions. Organizations and employees must be aware of federal and state lobbying laws, as well as federal laws governing tax-exempt status. Institutions that are government entities, like public hospitals, also must be mindful of state laws prohibiting political activities by state entities.
The Health Insurance Portability and Accountability Act, better known as HIPAA, protects individuals’ health information from inappropriate uses or disclosures. The law establishes standards for the release of protected health information by covered entities, which include health care providers, health plans and health care clearinghouses (such as medical billing services). Protected health information includes medical information in both printed and electronic form. In addition to the privacy rule which governs the disclosure of protected health information, HIPAA security regulations require covered entities to maintain certain physical plant and electronic standards to guard against inappropriate access to PHI. For a summary of the HIPAA Privacy Rule, visit the U.S. Department of Health and Human Services’ website.
OCR Guidance on Reasonable Charges for Patient Access to PHI
The Office of Civil Rights issued guidance regarding a patient’s ability to access his or her PHI, which may limit the fees providers can charge for supplying patients with copies of their medical records. The Privacy Rule authorizes covered entities to charge a reasonable, cost-based fee to individuals requesting access to their own PHI. According to the rule, the fee may only include the cost of labor for copying the records (whether in paper or electronic form), supplies for creating the records (paper or electronic media) and postage if the individual has requested that the records be mailed. 45 C.F.R. § 164.524(c)(4).
The guidance states that charges associated with searching for and retrieving PHI, or maintaining systems or infrastructure to store PHI, are prohibited, even if such charges are authorized by state law. Section 191.227.2(1)(a), RSMo currently authorizes search and retrieval fees of $24.57, and additional labor costs of $23.00 if the materials are stored offsite. The statute permits a $0.56 per page charge for the cost of “supplies and labor.”
OCR likely would view Missouri’s search and retrieval fees as prohibited by the Privacy Rule. And, while HIPAA authorizes a “reasonable, cost-based fee” for the labor and supplies necessary to copy records, the Missouri statute would arguably limit those charges to $0.56 per page. OCR limits those fees to actual costs incurred.
OCR released FAQs with its guidance, in which it states that the limits also apply when an individual directs that his or her PHI be sent directly to a third party. However, when a third party directly requests PHI from a provider on the basis of a written HIPAA authorization from the individual, the fee limitations would not apply.
Change in HIPAA Privacy Rule to Allow Disclosures to Criminal Background Check System
On Jan. 6, 2016, the U.S. Department of Health and Human Services filed its final rule implementing the latest changes to the HIPAA privacy rule. The rule authorizes certain covered entities to disclose to the National Instant Criminal Background Check System PHI of individuals subject to a federal “mental health prohibitor” disqualifying them from possessing, receiving, shipping or transporting a firearm. Under the Gun Control Act of 1968, mental health prohibitors apply to an individual who has been involuntarily committed to a mental health facility, lawfully found to be a danger to his/herself or others, incompetent to stand trial or manage his/her own affairs or the subject of a not guilty verdict by reason of insanity.
The rule applies to only two types of covered entities — those with legal authority to adjudicate or make commitment decisions that render individuals subject to the federal mental health prohibitor and those that are repositories of NICS reporting information. Such entities generally would include state agencies, such as mental and public health departments. The narrow scope of the rule came in response to comments expressing concern that the rule would discourage individuals from seeking mental health treatment. The rule also limits the disclosures to information needed for NCIS purposes and prohibits disclosure of clinical or diagnostic information. Finally, while the rule allows for such disclosures, it does not mandate that covered entities report to the NCIS. Covered entities are not authorized to report individuals subject to a state mental health prohibitor.
Model Medical Staff Bylaws
MHA developed the Model Medical Staff Bylaws to provide guidance to MHA’s member institutions in drafting new bylaws, modifying current bylaws or as a basis for reviewing current bylaws.
The draft of the Model Medical Staff Bylaws was prepared by Stacy Harper and Donn Herring of the law firm Lathrop and Gage L.L.C. The firm has a regional health law practice representing a variety of health-related clients, both professional and institutional, including many hospitals of various sizes in both urban and rural settings.
Many changes in health care law and regulations in the last few years require a hospital’s medical staff bylaws to be a dynamic document. The medical staff bylaws should be reviewed periodically to ensure its provisions are up to date. The Model Medical Staff Bylaws provide an opportunity for hospitals to ensure their own medical staff bylaws serve the best interests of the hospital, the medical staff and patients.
The Model Medical Staff Bylaws is designed to be a resource and a guide. The presentation of the bylaws does not constitute legal advice and should not be relied upon as such. Although development of medical staff bylaws in a hospital should be a process involving an interdisciplinary group or committee of the hospital and hospital medical staff, the hospital’s legal counsel should be an integral part of the process. Hospital medical staff bylaws involve many legal concepts. Consultation with legal counsel experienced in hospital medical staff bylaw drafting is critical.
Missouri Society of Health Care Attorneys
The Missouri Society of Health Care Attorneys is a professional membership group of the Missouri Hospital Association. MSHCA was formed in 1981 and remains a robust network of approximately 150 health care attorneys throughout the state. Its members practice in every facet of health care — as in-house counsel, state regulatory officials and in law firms large and small. MHA’s General Counsel and Vice President of Legal Affairs serves as a permanent member of the board, and the office provides ongoing operational support for the group.
MSHCA is governed by a board of directors and supported by various committees. The group holds a day-long, health-law seminar each November in conjunction with the MHA Convention and Trade Show. The keynote session, known as the Holderle Lecture, attracts dynamic national speakers on emerging issues in health law. The remaining sessions cover topics applicable to various aspects of health care practice. MSCHA also partners with the MoBar Health and Hospital Law Committee to provide joint programming at the spring and fall committee meetings.
Membership in MSHCA is a cost-effective way to receive health care education and information from MHA. If you are interested in joining or would like additional information, please contact MHA’s Associate General Counsel Meghan Henderson or her assistant Tammy Siebert.
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