Kenneth Vercammen (732) 572-0500

2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee, GP on Personal Injury and lectured at the ABA Annual Meeting attended by 10,000 attorneys and professionals.

New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Thursday, December 27, 2007

New Health Insurance Portability and Accountability Act -HIPAA

New Health Insurance Portability and Accountability Act -HIPAA

Compiled by Kenneth A. Vercammen
A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was recently adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients. The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues. As HIPAA affects not only new documents, any previously executed documents are affected as well. Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.

The following information was provided by the American Medical Association (AMA).

Today, state and federal laws also attempt to ensure the confidentiality of this sensitive information. The federal government recently published regulations designed to protect the privacy of your health information. This ³privacy rule² protects health information that is maintained by physicians, hospitals, other health care providers and health plans. As of April 14, 2003, your physician will need to comply with the privacy rule¹s standards for protecting the confidentiality of your health information.

This new regulation protects virtually all patients regardless of where they live or where they receive their health care. Every time you see a physician, are admitted to the hospital, fill a prescription, or send a claim to a health plan, your physician, the hospital and health plan will need to consider the privacy rule. All health information including paper records, oral communications, and electronic formats (such as e-mail) are protected by the privacy rule.

Patient: When my family member comes to pick me up from the hospital, the doctor will still be able to explain my condition and tell him what to expect when I return home. Right? True! The Rule permits doctors to discuss a patient¹s condition with family or friends involved in the person¹s care, unless the patient objects.

Patient: The privacy rule prevents a friend or family member from picking up prescriptions for me. Now I¹ll have to get out of my sick bed to get my medicine. False! The Rule allows a pharmacist to use professional judgment and experience with common practice to make reason-able inferences of the patient¹s best interest in allowing a person, other than the patient, to pick up a prescription.

Family The Privacy Rule would have prevented me from finding out information about my son Member: in a hospital in New York on September 11. False! The Rule permits hospitals and disaster relief agencies to notify family members that a loved one has been admitted to a hospital or has been involved in a disaster.

New national health information privacy standards have been issued by the U.S. Department of Health and Human Services (DHHS), pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The new regulations provide protection for the privacy of certain individually identifiable health data, referred to as Protected Health Information (PHI).

The shift of medical records from paper to electronic formats has increased the potential for individuals to access, use, and disclose sensitive personal health data. Although protecting individual privacy is a long-standing tradition among health-care providers and public health practitioners in the United States, previous legal protections at the federal, tribal, state, and local levels were inconsistent and inadequate. A patchwork of laws provided narrow privacy protections for selected health data and certain keepers of that data

Among other provisions, the Privacy Rule

* gives patients more control over their health information; * sets boundaries on the use and release of health records; * establishes appropriate safeguards that the majority of health-care providers and others must achieve to protect the privacy of health information; * holds violators accountable with civil and criminal penalties that can be imposed if they violate patients' privacy rights; * strikes a balance when public health responsibilities support disclosure of certain forms of data;

* enables patients to make informed choices based on how individual health information may be used; * enables patients to find out how their information may be used and what disclosures of their information have been made; * generally limits release of information to the minimum reasonably needed for the purpose of the disclosure; * generally gives patients the right to obtain a copy of their own health records and request corrections; and * empowers individuals to control certain uses and disclosures of their health information.

Who Is Covered

Covered entities are as follows:

* Health plans. An individual or group plan that provides, or pays the cost of, medical care that includes the diagnosis, cure, mitigation, treatment, or prevention of disease. Health plans include private entities (e.g., health insurers and managed care organizations) and government organizations (e.g., Medicaid, Medicare, and the Veterans Health Administration). * Health-care clearinghouses. A public or private entity, including a billing service, company, or community health information system, that processes nonstandard data or transactions received from another entity into standard transactions or data elements, or vice versa. * Health-care providers. A provider of health-care services and any other person or organization that furnishes, bills, or is paid for health care in the normal course of business. Health-care providers (e.g., physicians, hospitals, and clinics) are covered entities if they transmit health information in electronic form in connection with a transaction for which a HIPAA standard has been adopted by DHHS.

The Privacy Rule also establishes requirements for covered entities with regard to their nonemployee business associates (e.g., lawyers, accountants, billing companies, and other contractors) whose relationship with covered entities requires sharing of Protected Health Information (PHI). The Privacy Rule allows a covered provider or health plan to disclose Protected Health Information (PHI) to an attorney or business associate if satisfactory written assurance is obtained that the attorney or business associate will use the information only for the purposes for which it was

engaged, will safeguard the information from misuse, and will help the covered entity comply with certain of its duties under the Privacy Rule.

The Privacy Rule does not apply to all persons or entities that regularly use, disclose, or store individually identifiable health information. For example, the Privacy Rule does not cover employers, certain insurers (e.g., auto, life, and worker compensation), or those public agencies that deliver social security or welfare benefits, when functioning solely in these capacities.

Protected Health Information

The Privacy Rule protects certain information that covered entities use and disclose. This information is called protected privacy, which is generally individually identifiable health information that is transmitted by, or maintained in, electronic media or any other form or medium. This information must relate to 1) the past, present, or future physical or mental health, or condition of an individual; 2) provision of health care to an individual; or 3) payment for the provision of health care to an individual. If the information identifies or provides a reasonable basis to believe it can be used to identify an individual, it is considered individually identifiable health information.

Required Protected Health Information (PHI) Disclosures

A covered entity is required by the Privacy Rule to disclose protected privacy in only two instances: 1) when an individual has a right to access an accounting of his or her protected privacy (see previous paragraph); and 2) when DHHS needs protected privacy to determine compliance with the Privacy Rule [45 CFR § 164.502(a)(2)]. Certain other uses and disclosures of protected privacy may be permitted without authorization, but are not required by the Privacy Rule. However, other federal, tribal, state, or local laws may compel disclosure.

Permitted Protected Health Information (PHI) Disclosures Without Authorization

The Privacy Rule permits a covered entity to use and disclose Protected Health Information (PHI), with certain limits and protections, for TPO activities [45 CFR § 164.506]. Certain other permitted uses and disclosures for which authorization is not required follow. Additional

requirements and conditions apply to these disclosures. The Privacy Rule text and OCR guidance should be consulted for a full understanding of the following:

* Required by law. Disclosures of protected privacy are permitted when required by other laws, whether federal, tribal, state, or local. * Public health. Protected privacy can be disclosed to public health authorities and their authorized agents for public health purposes including but not limited to public health surveillance, investigations, and interventions. * Health research. A covered entity can use or disclose protected privacy for research without authorization under certain conditions, including 1) if it obtains documentation of a waiver from an institutional review board (IRB) or a privacy board, according to a series of considerations; 2) for activities preparatory to research; and 3) for research on a decedent's information. * Abuse, neglect, or domestic violence. Protected privacy may be disclosed to report abuse, neglect, or domestic violence under specified circumstances. * Law enforcement. Covered entities may, under specified conditions, disclose protected privacy to law enforcement officials pursuant to a court order, subpoena, or other legal order, to help identify and locate a suspect, fugitive, or missing person; to provide information related to a victim of a crime or a death that may have resulted from a crime, or to report a crime. * Judicial and administrative proceedings. A covered entity may disclose protected privacy in the course of a judicial or administrative proceeding under specified circumstances. * Cadaveric organ, eye, or tissue donation purposes. Organ- procurement agencies may use protected privacy for the purposes of facilitating transplant. * Oversight. Covered entities may usually disclose protected privacy to a health oversight agency for oversight activities authorized by law. * Worker's compensation. The Privacy Rule permits disclosure of work- related health information as authorized by, and to the extent necessary to comply with, workers' compensation programs.

Other Authorized Disclosures

A valid authorization is required for any use or disclosure of Protected Health Information (PHI) that is not required or otherwise permitted without authorization by the Privacy Rule. In general, these authorizations must

* specifically identify the protected privacyto be used or disclosed; * provide the names of persons or organizations, or classes of persons or organizations, who will receive, use, or disclose the protected privacy; * state the purpose for each request; * notify individuals of their right to refuse to sign the authorization without negative consequences to treatment, payment, or health plan enrollment or benefit eligibility, except under specific circumstances; * be signed and dated by the individual or the individual's personal representative; * be written in plain language; * include an expiration date or event; * notify the individual of the right to revoke authorization at any time in writing, and how to exercise that right, and any applicable exceptions to that right under the Privacy Rule; and * explain the potential for the information to be subject to redisclosure by recipient and no longer protected by the Privacy Rule.

The Privacy Rule and Public Health

The Privacy Rule recognizes 1) the legitimate need for public health authorities and others responsible for ensuring the public's health and safety to have access to protected privacy to conduct their missions; and 2) the importance of public health reporting by covered entities to identify threats to the public and individuals. Accordingly, the rule 1) permits protected privacy disclosures without a written patient authorization for specified public health purposes to public health authorities legally authorized to collect and receive the information for such purposes, and 2) permits disclosures that are required by state and local public health or other laws.

However, because the Privacy Rule affects the traditional ways protected privacy is used and exchanged among covered entities (e.g., doctors, hospitals, and health insurers), it can affect public health practice and research in multiple ways. To prevent misconceptions, understanding the Privacy Rule is important for public health practice.

Part of Kenneth Vercammen¹s Power of Attorney, modified in 2004

Grant of Authority. I appoint You to act as my Agent (called an attorney in fact) to do each and every act which I could personally do for the following uses and purposes:

1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to any real estate or lands in which I have an interest. This includes the power to sell all land I own.

2. ENDORSEMENT AND PAYMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.

3. MEDICAL RECORDS ACCESS: To be able to access my medical and hospital records under Federal Law HIPAA. Healthcare providers shall release medical information to my agent.

4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.

6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions as set forth in section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.

8. GIFT GIVING POWERS: To make gifts in amounts which my agent in his sole, absolute and unfettered discretion shall deem appropriate in any given year on my behalf.

Powers. I give you all the power and authority which I may legally give to You. You may revoke this Power of Attorney. I approve and confirm all that You or your substitute may lawfully do on my behalf.

The following is a portion of a form Kenneth Vercammen uses in personal injury cases.

HIPAA Authorization to Disclose Patient Information

Purpose: This form is to be used for including, but not limited to: patient¹s telephone, fax or mail requests for films, reports or disclosures and for non-TPO requests such as lawyers, clergy, employers, schools or for marketing or research purposes.

I ________________ hereby authorize ______________ to disclose my health information described below to:

Recipient¹s Name: Kenneth Vercammen & Associates, PC Recipient¹s Address: 2053 Woodbridge Avenue, Edison, NJ 08817 Recipient¹s Telephone Number: (732) 572-0050

Films/Documents/Information to Be Released:

___________________________________________

Purpose of Disclosure (explain or indicate at the request of the individual): PERSONAL INJURY LAWSUIT

There is no expiration date on this authorization. I understand that the terms of this authorization are governed by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (HIPAA). I understand that I have the right to revoke this authorization, at any time prior to your compliance with the request set forth herein, provided that the revocation is in writing. I further understand that additional information relating to the exceptions to the right to revoke and a description of how I may revoke this authorization is set forth in your Notice of Privacy Practices. I understand that any revocation must include my name, address, telephone number, date of this authorization and my signature and that I should send it to you.

I understand that the information used or disclosed pursuant to this authorization may be subject to re-disclosure by the Recipient listed above and, in that case, will no longer be protected by HIPAA.

This authorization expires upon your release of the information described above or thirty days after the Date of Authorization, as set forth below, whichever comes first.

___________________ __________________ _____________ Signature of Individual Patient¹s Social Security # Date of Birth




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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the “soft” approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you don’t protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced Oregon personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- “For Settlement Only” -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means:
YOU DON’T OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

Admitted In NJ, NY, PA, US Supreme Court and Federal District Court.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.

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