Wednesday, October 23, 2013

Text Messaging Protected Health Information

The Robert Wood Johnson Foundation, conducted a study finding that nurses spend as much as 60 minutes of each work day tracking down physicians for a response to their patient care questions. Many healthcare providers believe it would be more efficient to send text messages in order to streamline the workflow, as well as, increase dialogue between physicians and patients.  An issue arises though, if the message contains Protected Health Information.  This is a result of the fact that text messages are electronic communications and therefore the message would be considered Electronic Protected Health Information (ePHI), which must comply with the Health Insurance Portability and Accountability Act (HIPAA).

It is challenging to send a HIPAA compliant text message as they carry a great deal of risk.  The risk stems from the fact that they are typically not encrypted, senders cannot authenticate the recipients, recipients cannot authenticate the senders and ePHI can remain stored on wireless carrier servers.  The Joint Commission has completely restricted  physicians or licensed independent practitioners from texting orders for patients to the hospital or other healthcare setting, stating that “this method provides no ability to verify the identity of the person sending the text and there is no way to keep the original message as validation of what is entered into the medical record.”  However, texting ePHI is not explicitly prohibited by the HIPAA Security Rule. 

The Security Rule requires that those providers who want to send ePHI via text must conduct a risk analysis.  A risk analysis consists of “an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the covered entity.”  The Security Rule further requires that Covered Entities and Business Associates acting on their behalf implement administrative, physical and technical safeguards.  The Security Rule does not propose specific safeguards, but provides a framework to assess and mitigate risks associated with such transmissions.  The American Health Lawyers Association have given examples of technical safeguards, such as, unique user identification, automatic logoff, encryption/decryption, auditing and authentication.

Text messaging remains an attractive and cost effective way to communicate ePHI.  Ultimately though, it is a policy decision where the decision-makers must weigh the risks and benefits of sending PHI through text messages.

Friday, October 4, 2013

Favorable Outcome for Abercrombie & Fitch In Religious Discrimination Lawsuit

The decision by U.S. District Court Judge Gregory Frizzell, granting summary judgment to the Equal Employment Opportunity Commission (EEOC) was reversed by the U.S. Court of Appeals on October 1, 2013.  The Tenth Circuit disagreed with the District Court's determination that Abercrombie & Fitch violated Title VII of the Civil Rights Act of 1964, by failing to provide a reasonable religious accommodation to a Muslim woman.  

The Tenth Circuit held that Abercrombie was instead entitled to summary judgment because there was no genuine dispute of material fact.  The court focused on the fact that the applicant never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she would need an accommodation because of the conflict with Abercrombie’s clothing policy.

Abercrombie has a “Look Policy” intended to promote the Abercrombie brand. Abercrombie claims that its Look Policy is critical to its “preppy” and “casual” brand as it does very little advertising through traditional media outlets.  Abercrombie asserted that a sales-floor employee who violates the Look Policy by wearing inconsistent clothing will cause consumer confusion, will fail to perform an essential function of the sales-floor employee position, and ultimately damage the brand.

In 2008, the then 17-year-old, Samantha Elauf, applied for a job at Abercrombie Kids in Tulsa, Oklahoma.  Prior to her interview, Ms. Elauf asked a friend who worked at Abercrombie whether wearing a hijab to work was permissible. The friend inquired and communicated to Ms. Elauf that it should not be a problem.  Ms. Elauf wore an Abercrombie T-shirt, jeans and a black hijab to her interview.  During the interview the assistant manager never mentioned the Look Policy by name but did describe the dress requirements. Ms. Elauf never informed the assistant manager that she was Muslim, never brought up the subject of the headscarf, or that she wore the headscarf for religious reasons.  The interview went fairly well, and she was rated by the assistant manager as eligible for hire.

Following the interview, the assistant manager sought approval from a senior manager in evaluating Ms. Elauf for the position.  A district manager determined that Ms. Elauf should not be hired because she wore a headscarf, which was a clothing item that was inconsistent with the Look Policy.  The Look Policy prohibited employees from wearing black clothing and “caps.” However, the policy did not explain the meaning of the term “cap.”

The EEOC sued on Ms. Elauf’s behalf, alleging violations of Title VII. The compliant stated that Abercrombie refused to hire her because she wore a hijab, and failed to accommodate her religious beliefs by making an exception to the Look Policy.  The U.S. District Court agreed, granting summary judgment to the EEOC after finding that Abercrombie and Fitch failed to produce sufficient evidence to dispute the EEOC’s claims.  

Title VII’s regulations impose an obligation on the employer “to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.”  However, Title VII’s regulations are only imposed after an employer is put on notice of the need for a religious accommodation. The Tenth Circuit found that not only did Ms. Elauf never inform Abercrombie before its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she needed an accommodation, the hijab was not discussed at all.  Therefore, the appeals court determined that the EEOC failed to establish its case under Title VII’s religion-accommodation theory.
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