FTC's 'Red Flags' Rule, HITECH Act Examined

— Heidi Sfiligoj, News Staff

In a number of recent Legal Issue of the Month articles, NASW's Legal Defense Fund addresses issues such as the FTC's "Red Flags" rule and the HITECH Act.

Social Workers and Identity Theft: The FTC 'Red Flags' Rule reviews the Federal Trade Commission's regulations that address medical identity theft.

The article points out the FTC has issued guidance for health care providers, suggesting that health care providers, including clinical social workers in private practice who bill patients and insurance companies, are subject to the regulations if they allow patients to defer payments, thereby acting as a creditor.

Those subject to the rule must implement a written identity theft program to spot and respond to possible fraudulent activity. The program should identify the kinds of red flags that are relevant to a provider's practice, spell out the provider's process for detecting them, describe how the provider will respond to red flags to prevent and mitigate identity theft, and explain how the program will be kept current.

"The identity theft program is to be tailored to the size and nature of the business, so a small social work practice can develop simple written policies to readily comply," the article states.

While the new rule does not contain a comprehensive list of red flags, which are activities indicating that identify theft is taking place or already has, the FTC offers examples that health care providers may encounter. Outdated documents, inaccurate personally identifying information, and suspicious activities such as frequent address changes are all potential indicators of fraudulent identity theft. Notices from victims of identity theft, law enforcement authorities, insurers or others suggesting possible identity theft could also be red flags.

"Clinical social workers in fee-for-service practice settings will need to comply with the FTC 'Red Flags' Rule b, [now delayed to Nov. 1, 2009] if they are billing health insurers for services. Health care provider organizations are actively lobbying Congress and advocating directly with the FTC to obtain an exemption for health care providers from the new requirements. NASW is monitoring these developments and working to inform social workers about the FTC rule and any changes," the article concludes.

HITECH HIPAA for Social Workers gives an overview of the Health Information Technology for Economic and Clinical Health Act, or HITECH Act, focusing on Subtitle D — Privacy. The act promotes the use of electronic health records and provides for better privacy protection for personal health information.

Regarding privacy breaches, the article notes the steps that must be taken following a privacy breach of any protected health information. "The [HITECH] breach notice requires that a covered entity notify each individual affected by a breach," the article states.

Additionally, it discusses the expansion of HIPAA coverage. "A significant change to the applicability of the HIPAA privacy and security standards is the expansion of direct HIPAA obligations to all business associates of covered entities," the article states.

"Generally it is expected that the new law will result in noticeable increases in the number of breach notifications sent to patients. Social workers and other covered entities will need to obtain training on the new requirements and develop appropriate office procedures in the event a privacy or security breach occurs," the article states.

"Schools of social work should look for opportunities to train graduate students in the creation, use and management of electronic recordkeeping technologies in accordance with professional practice standards through the funding mechanisms authorized by HITECH," it concludes. "NASW will continue to analyze the HITECH provisions and develop new educational and training materials for social workers."

The article Responding to a Subpoena reviews the basics of handling a subpoena in the midst of clients' legal actions that are not complaints against the social worker. The article further supplies information about what to do when responding to a subpoena for client information. It lists applicable standards that should be considered and provides different options for responding to a subpoena.

The article notes resources available to NASW members and social workers. "Members of NASW who have purchased professional liability insurance through NASW's Assurance Services Inc. (via NASW's broker, American Professional Agency), have policy coverage that includes at least $5,000 for legal fees related to a response to a subpoena for client records," the article states.

It also notes that financial assistance for legal costs may be available through the NASW Legal Defense Fund for members engaged in legal action that involves upholding standards of the profession, such as the NASW Code of Ethics confidentiality provisions.

"Social Work Supervision for State Licensure" looks at why supervision requirements for social workers trying to obtain a state social work license are growing more complex. The article identifies possible ways to deter unexpected conflicts and provides options for systemic changes to enhance the supervision and licensing process for social workers.

The article notes the different means through which a social worker's supervised experience may be verified and stresses the importance for social workers to keep copies of credentialing and licensure application documents. It also covers types of supervision requirements.

Advice for social workers who are relocating to another state is provided, suggesting they vigilantly review the licensure and supervision requirements for the state they plan on moving to well before they accept a job offer.

The article also discusses the dilemmas that can occur when changes are made to licensure laws. "Social workers who obtain a state license through a grandfathering provision must be diligent as to the need to obtain additional experience or credentials within a certain time period," the article states. "After years of licensed social work practice, when a grandfather provision has expired or is phased out, 'grandfathered' social workers my find that they no longer possess a valid license."

In order for the social worker to be protected from the possibility of later arguments or challenges to the validity of his or her supervised experience, the article notes that it is useful for the licensing board to mandate pre-approval of the practice setting and supervision arrangement.