STATE OF NEVADA HEALTH INFORMATION …

STATE OF NEVADA HEALTH INFORMATION TECHNOLOGY REGULATORY AND POLICY INVENTORY

A report to: Nevada Department of Health and Human Services

Office of Health Information Technology

Prepared by: Leslie Hamner

August 23, 2010

Introduction

This report has been prepared to assist the Nevada Department of Health and Human Services, Office of Health Information Technology, with the development of proposed legislation deemed necessary to implement the provisions of the American Recovery and Reinvestment Act (ARRA) Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH) in Nevada. The terms and conditions of the HITECH State Health Information Exchange (HIE) Cooperative Agreement awarded to the State of Nevada require harmonization of regulatory and policy requirements to enable the deployment of health information technology (HIT) to meet meaningful use requirements. In addition, the HIE Cooperative Agreement requires the State to conduct an inventory of the regulatory framework for facilitating HIE, including an analysis of existing state laws.

Existing provisions of Nevada Revised Statutes (NRS) which relate to health information are summarized in the report. A complete list of the existing provisions of NRS which relate to health information is included as Appendix A. Also included in this report is an overview of various policy issues involved in HIT legislation, including the manner in which other states are addressing them.

While this report represents a general statewide assessment of HIT regulatory and policy issues, a comparable Medicaid-specific inventory was not done, due to time and fiscal constraints. Nevada Medicaid plans to use the results of this inventory in determining further harmonization of its own NRS regulatory provisions and program policies necessary to meet Medicaid HIT requirements.

Nevada Revised Statutes Sections Related to Health Information

Nevada currently has numerous state laws relating to the creation, maintenance and transmission of health information and the privacy and security of such information. These statutory provisions are located in various chapters of NRS and set forth different circumstances under which personal health information (PHI) can be exchanged. These provisions of NRS contain variations in allowable and mandatory disclosures, depending on the type of information, the recipient of the information and the purpose for which it is being exchanged. Nevada does not provide a single, consistent approach to the privacy and security of health information.

The vast majority of NRS provisions related to health information do not specifically address electronic health records (EHRs), and the few sections that do are discussed below. Therefore, drafting HIT legislation and regulations provides an opportunity for the State of Nevada to establish clear provisions for the adoption and use of EHRs. In doing so, the State will need to determine which existing provisions of NRS governing health information generally are suitable for electronic health information and which provisions need to be revised. To a great degree, that will depend on the policy decisions the State makes as it develops proposed legislation and regulations to implement the

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provisions of the HITECH Act in Nevada. Thus, the drafters of such legislation will need to consider the provisions of NRS discussed below to ensure they are consistent with the language included in any proposed legislation.

The laws relevant to the establishment of HIE and to health information generally can be grouped into the following ten categories: (1) Confidentiality of and Access to Medical Records; (2) Electronic Transmission of Health Information; (3) Maintenance of Medical Records; (4) Prescriptions and Dangerous Drugs; (5) Security of Personal Information; (6) Electronic Records and Transactions; (7) Creation of Medical Records; (8) Medical Records as Evidence in Legal Proceedings; (9) Billing and Medical Records; and (10) Miscellaneous Provisions. The NRS provisions in each of these categories are summarized below, and the full text of the relevant NRS sections are included in Appendix A.

1. Confidentiality of and Access to Medical Records

The provisions of NRS 629.061 require a provider of health care or a person who owns or operates an ambulance to make health care records of a patient available for inspection by certain persons. Additional provisions of chapter 629 of NRS require a provider of health care to provide health care records to law enforcement agents, district attorneys, and the Department of Corrections under certain circumstances.

Pursuant to NRS 449.720, with a few specific exceptions, all communications and records concerning a patient of a medical facility, facility for the dependent or home for individual residential care are confidential.

The provisions of NRS specify various instances in which medical records must be submitted or must be accessible for examination. These include medical records being submitted to a court; accessible in cases in which a hospital has a lien on a judgment or settlement; provided to adoptive parents; provided to providers of family foster care; available for inspection in criminal cases involving the abuse of older or vulnerable persons; provided to various entities responsible for investigating the abuse or neglect of a child; accessible in cases involving viatical settlements; being accessible in cases involving personal injury claims under a policy of motor vehicle insurance; and accessible by a quality improvement committee of a managed care organization. These provisions also set forth procedures for: the Department of Corrections accessing records of the Division of Mental Health and Developmental Services of the Department of Health and Human Services; access to information related to compensation for certain victims of crimes; the Department of Health and Human Services sharing information among its Divisions and with certain agencies of local governments; the inspection of ambulance or firefighter records by health authorities; and examinations of health insurers and health maintenance organizations by the Commissioner of Insurance.

There are specific provisions in NRS governing the confidentiality of: records containing genetic information; records concerning recipients of governmental assistance; records of clients of the Division of Mental Health and Developmental Services of the Department

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of Health and Human Services; records of narcotic addicts; records related to cancer; and records of treatment facilities for alcohol or drugs. In addition, various provisions of NRS set forth specific rules governing the accessibility of records related to: an investigation of communicable disease, infectious disease, or exposure to biological, radiological or chemical agents; birth defects; the use of alcohol or substance abuse during pregnancy; medical records involved in industrial insurance; and records of medical laboratories.

2. Electronic Transmission of Health Information

Pursuant to NRS 439.538, if a covered entity transmits electronically individually identifiable health information in compliance with the provisions of HIPAA, the covered entity is, for purposes of the electronic transmission, exempt from any state law that contains more stringent requirements or provisions concerning the privacy or confidentiality of individually identifiable health information. In addition, this section provides that a covered entity that makes individually identifiable health information available electronically shall allow any person to opt out of having his or her individually identifiable health information disclosed electronically to other covered entities, except under certain circumstances.

3. Maintenance of Medical Records

Additional provisions of NRS deal with the maintenance of medical records. These provisions require certain medical records to be maintained for offenders in prison and persons involved in outdoor youth programs. Physicians and other providers are required to maintain certain records concerning abortions and products made from blood. NRS also makes it unlawful to retain genetic information that identifies a person under certain circumstances.

NRS also sets forth specific rules concerning the length of time providers of health care are required to retain health care records. In addition, the Health Division of the Department of Health and Human Services is authorized to take control of and ensure the safety of the medical records of certain facilities.

4. Prescriptions and Dangerous Drugs

Several of the provisions of NRS governing the dispensing of prescriptions and dangerous drugs will need to be updated so that they are applicable to electronic health information and records, as well as permit the electronic prescribing (e-prescribing or eRx) of medications, excluding controlled substances, to meet federal meaningful use requirements. For example, NRS 453.256 prohibits a controlled substance included in schedule II from being dispensed without the written prescription of a practitioner unless there is an emergency or a facsimile machine is used. There are also several provisions of NRS which refer to "written orders," "in writing," "written documentation" and "signatures."

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The provisions of NRS 453.385 require the State Board of Pharmacy to adopt by regulation requirements for transmitting a prescription for a controlled substance to a pharmacy. The regulations adopted for the electronic transmission or transmission by a facsimile machine must not be more stringent than federal law governing such transmission. In addition, NRS 639.2353 provides that a prescription for a controlled substance must not be given by electronic transmission or transmission by a facsimile machine unless authorized by federal law. NRS also contains specific provisions governing the confidentiality of and access to prescriptions.

5. Security of Personal Information

Chapter 603A of NRS contains various provisions to protect personal information, including PHI. These provisions set forth requirements for certain entities that deal with nonpublic personal information. This includes a natural person's first name or first initial and last name in combination with any one or more of the following data elements, when the name and data elements are not encrypted: (1) social security number; (2) driver's license number or identification card number; or (3) account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to the person's financial account.

6. Electronic Records and Transactions

The provisions of chapter 719 of NRS contain the Uniform Electronic Transactions Act. These provisions govern electronic transactions, including electronic records and electronic signatures. The provisions of chapter 720 of NRS govern the use of digital signatures.

7. Creation of Medical Records

Various provisions of NRS concerning medical records require certain information to be included in a person's medical record.

8. Medical Records as Evidence in Legal Proceedings

Various provisions of NRS address the use of medical records as evidence in legal proceedings.

9. Billing and Medical Records

Various provisions of NRS set forth requirements regarding billing, billed charges and Uniform Billing and Claims Forms.

10. Miscellaneous Provisions

Miscellaneous provisions of NRS address: health information that must be provided to schools, child care facilities and accommodation facilities; information submitted by

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