| UPDATED with link to the full report. 2:33 p.m. JMc.
Following up on yesterday's report below; it may or may not be the case that Pharmacists are required by state law to provide the prescription records of all Schedule II medications to State Police as is being demanded of them.
The Pharmacist I spoke to contacted the Secretary of State's office and was advised to comply, however that advise would seem to be in conflict with a report the state Department of Health submitted to the legislature this year specifically in reference to the law which gives police their authority to examine such records (18 VSA 4218). From the report:
"HIPAA contemplates that state laws may conflict with its terms and has been written to address those situations. HIPAA, by its terms, preempts provisions of state law that are contrary to HIPAA, unless state law affords greater privacy protection. When state law affords greater protection than HIPAA, the state law is not preempted and the covered entity must follow state law.
HIPAA regulations provide that a state statute is "contrary" to HIPAA if it is impossible for the covered entity to comply with both HIPAA and the state law or if the state law stands as an obstacle to the accomplishment of the full purposes and objectives of HIPAA. 45 C.F.R. ยง 160.202. Applying this standard, conflicts between HIPAA and section 4218 of Title 18 must be resolved by the covered entity on a case-by-case basis. The pharmacy, as a covered entity, must determine whether HIPAA permits the requested disclosure to DPS, and that determination will depend on the circumstances of the request for the protected health information. As in the examples above, there are circumstances where complying both with HIPAA and section 4218 would not be impossible and the disclosure would be permitted.
In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose.
For these reasons, VDH and DPS conclude that section 4218 is not contrary to HIPAA. Correspondingly, since the pharmacies are bound by HIPAA and may disclose information only as permitted by HIPAA, any medical privacy concerns are addressed by HIPAA and no revision of section 4218 is necessary."
HIPAA, again, is the Health Information Portability and Accountability Act - the federal law which sets down strict guidelines on the privacy of medical records.
This would seem to put pharmacists on the hot seat in a big way. They've got the State Police demanding they dump these records in an unprecedented (and unconstitutional) way, the Secretary of State's office advising them they must comply - but the Department of Health telling the legislature it's really up to the Pharmacist to make a judgment call on whether or not the request violates HIPAA, as the State law is not supposed to supersede the federal regime.
If I were a pharmacist, I'd be pissed off. Obviously, if I were a patient, I'd be pissed off.
Another fiasco brought to us by Vermont's executive branch... |
250-1
55-1
