2012 VA Human Research Protection Program Common Privacy

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2012 VA Human Research Protection Program Common Privacy Findings in Research Patricia L. Christensen,

2012 VA Human Research Protection Program Common Privacy Findings in Research Patricia L. Christensen, MS, RHIA, CIPP/G, CHPS, CHPC VHA Privacy Office San Francisco, CA June 26 -27, 2012

Privacy Officer (PO)Issues § Consistency among protocol, Informed Consent Form and HIPAA authorization §

Privacy Officer (PO)Issues § Consistency among protocol, Informed Consent Form and HIPAA authorization § De-identified Information & HIPAA Identifiers § When a Data Use Agreement is Required § Notice of Privacy Practices to Non-Veterans § Requirements for Pictures & Audio-Recordings § Email Communication with Subjects § Retention and Storage of Research Data § Accounting of Disclosure § Re-Use of Data § Miscellaneous Information 2 VHA Office of Informatics and Analytics

Consistency between Informed Consent and HIPAA authorization § Information being collected § Who is

Consistency between Informed Consent and HIPAA authorization § Information being collected § Who is using the data § Who will be receiving data outside VA Ø Clarity as to non-VA entities receiving protected health information (PHI), limited data sets (LDS) or just aggregate information § Retention/disposal of information Good News: An official VHA research HIPAA Authorization form is forthcoming VHA Office of Informatics and Analytics

De-identified Information § A covered entity (VHA) can find that health information is not

De-identified Information § A covered entity (VHA) can find that health information is not individually identifiable in two ways: VHA Office of Informatics and Analytics

HIPAA Identifiers The 18 types of identifiers of the individual or of relatives, employers,

HIPAA Identifiers The 18 types of identifiers of the individual or of relatives, employers, or household members of the individual that must be removed are: (1) Names (2) All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geo codes, except for the initial three digits of a zip code, according to the current publicly available data from the Bureau of the Census VHA Office of Informatics and Analytics

HIPAA Identifiers (3) All elements of dates (except year) for dates directly related to

HIPAA Identifiers (3) All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older; (4) Telephone numbers (8) MR numbers (5) Fax numbers. (9) Health Plan (6) E-mail addresses Beneficiary (7) SSN numbers VHA Office of Informatics and Analytics

HIPAA Identifiers (10) Account numbers. (11) Certificate and/or license numbers. (12) Vehicle identifiers and

HIPAA Identifiers (10) Account numbers. (11) Certificate and/or license numbers. (12) Vehicle identifiers and serial numbers, including license plate numbers. (13) Device identifiers and serial numbers. (14) Web Universal Resource Locators (URLs). (15) Internet Protocol (IP) address numbers. (16) Biometric identifiers, including finger and voice prints. (17) Full-face photographic images and any comparable images. (18) Any other unique identifying number, characteristic, or code, except as permitted by § 164. 514(c) VHA Office of Informatics and Analytics

De-identified Information - Challenges § PI may erroneously refer to information within protocol as

De-identified Information - Challenges § PI may erroneously refer to information within protocol as being de-identified (deletion of patient name, SSN, address, DOB) when the protocol actually contains other HIPAA identifiers, such as dates, study ID number, or study code which makes this identifiable § Problem areas when de-identifying data Ø Age 89 years and older unless placed into one single category of 90 or above Ø Dates must list year only, exclude month/day Ø Geographic data o Same initial three digits of ZIP codes may be included except when population is <20, 000 then use 000 VHA Office of Informatics and Analytics

Limited Data Sets (LDS) § LDS refers to PHI that excludes 16 of the

Limited Data Sets (LDS) § LDS refers to PHI that excludes 16 of the above direct identifiers but the research data still may include two of the HIPAA identifiers: Ø Dates: o Date of visit/encounter o Date of birth or death o Admission or discharge date Ø Certain geographic information o City o State o Zip code VHA Office of Informatics and Analytics

Limited Data Sets (LDS) § The HIPAA Privacy Rule permits VHA as a covered

Limited Data Sets (LDS) § The HIPAA Privacy Rule permits VHA as a covered entity to use and disclose a LDS for research activities without obtaining an authorization or documentation of a waiver of HIPAA authorization § LDS can be used or disclosed by VHA for research purposes to Ø VA research staff Ø Another covered entity Ø A non-VA researcher who is not a covered entity NOTE: § A Data Use Agreement with VHA is required to disclose a LDS to anyone (including other VA staff) VHA Office of Informatics and Analytics

Limited Data Sets (LDS) § Recipients of LDS Ø Cannot use or disclose the

Limited Data Sets (LDS) § Recipients of LDS Ø Cannot use or disclose the information other than permitted by the agreement or otherwise required by law Ø Must use appropriate safeguards to protect the LDS Ø Must require the recipient to report any violations of the agreement to VHA Ø Must hold any agent of the recipient (including subcontractors) to the same agreement conditions Ø Must not identify the information or contact the individual VHA Office of Informatics and Analytics

Data Use Agreement (DUA) § VA researchers are required to enter into a DUA

Data Use Agreement (DUA) § VA researchers are required to enter into a DUA if they are obtaining information from a data repository Ø Reference: VHA Handbook 1200. 12 § A data repository is a database or a collection of databases that have been created or organized to facilitate the conduct of multiple research protocols, including future protocols not yet envisioned VHA Office of Informatics and Analytics

Data Use Agreement (DUA) § If VHA retains ownership of the data, a DUA

Data Use Agreement (DUA) § If VHA retains ownership of the data, a DUA can legally bind the recipient to specific uses or place limitations on the use of the data ØA Contractor, or ØNon-VA collaborator VHA Office of Informatics and Analytics

Data Use Agreement (DUA) § A DUA establishes who will have access to and

Data Use Agreement (DUA) § A DUA establishes who will have access to and control of the information at both origination and recipient locations as to Ø Use Ø Disclosure Ø Storage Ø Processing Ø Making copies Ø Transfer of Data Ø Disposition of Data VHA Office of Informatics and Analytics

Examples of Repositories § VISN data warehouses § National Database Systems (NDS) § Veterans

Examples of Repositories § VISN data warehouses § National Database Systems (NDS) § Veterans Affairs/Department of Defense Identity Repository (VADIR) § Corporate Data Warehouse § Pharmacy Benefits Management § Vist. A/CPRS § Center for Medicare and Medicaid (CMS) data § Specific research repository VHA Office of Informatics and Analytics

When a Data Use Agreement is Required § A DUA is required when data

When a Data Use Agreement is Required § A DUA is required when data is transferred for research from Ø One VA facility (not engaged) to another VA facility (engaged) Ø A VA repository (VISN warehouse, national database, or a research data repository) to a VA investigator for a VA-approved research project Ø To a non-VA person or entity who is serving as a contractor or collaborator on the PI’s VA-approved protocol Ø Preparatory to research for review by PI or staff when data is obtained from a repository VHA Office of Informatics and Analytics

When a Data Use Agreement is not Required § A DUA is not required

When a Data Use Agreement is not Required § A DUA is not required when data is transferred for research when Ø Disclosed to a research sponsor Ø One VA facility/VA investigator transfers data to another VA facility/VA Investigator when transfer is § § § required to conduct a protocol, the transfer is described within the protocol, the protocol is approved by each site’s IRB, and the protocol is then active at each site all parties are “engaged” in the research project e. g. , Multiple sites in a VA-approved clinical trial transferring data to a Cooperative Studies Program (CSP) coordinating center VHA Office of Informatics and Analytics

NOPP (IB 10 -163) to Non-Veterans § Provide non-Veterans enrolled in VA studies that

NOPP (IB 10 -163) to Non-Veterans § Provide non-Veterans enrolled in VA studies that collect PHI with a copy of IB 10 -163, Notice of Privacy Practices (NOPP) at the time of non. Veteran’s first research visit § Non-Veteran must acknowledge receipt of the NOPP on VAF 10 -0483 § Bullets are square § Font is Myriad Web Pro § Each indented line is 2 pts smaller than line above § Single spacing hanging index. 31 VHA Office of Informatics and Analytics

Requirements for Pictures, Video- & Audio-Recordings for Research Subjects § Informed Consent to take

Requirements for Pictures, Video- & Audio-Recordings for Research Subjects § Informed Consent to take a picture, video- or audio-recording cannot be waived, but documentation of informed consent can be waived by the IRB § For patient subjects (Veteran or non-Veteran): Ø Utilize VAF 10 -3203 (in addition to informed consent form) VHA Office of Informatics and Analytics

Disposition Requirements for Pictures, Video- & Audio-Recordings for Research Subjects § There is no

Disposition Requirements for Pictures, Video- & Audio-Recordings for Research Subjects § There is no NARA disposition for research pictures, video- & audio-recordings ØIf use of digital transcription service, the contract with the service may need to specify that the voice recordings cannot be destroyed ØIf use of tapes, the PI must maintain these tapes and not re-record over the tape recording another subject ØA research agreement may be required if service is provided by a non-VA entity VHA Office of Informatics and Analytics

Retention and Storage of Research Data § All research records must be retained because

Retention and Storage of Research Data § All research records must be retained because research records have no schedule for destruction Ø NOTE: Records include crosswalks and lists of identifiers for recruitment § What can be destroyed Ø Personal papers Ø Copies of research documents, but not originals VHA Office of Informatics and Analytics

Accounting of Disclosure § VHA, and its employees, are responsible for maintaining an accounting

Accounting of Disclosure § VHA, and its employees, are responsible for maintaining an accounting of all disclosures of protected health information made by VHA employees. § The accounting of disclosure is required by both the Privacy Act of 1974 and HIPAA’s Privacy Rule § Accounting is not required if the information disclosed is de-identified or a limited data set § Accounting is required with or without patient authorization VHA Office of Informatics and Analytics

Accounting of Disclosures § Although not a requirement for your facility RCO, this is

Accounting of Disclosures § Although not a requirement for your facility RCO, this is a call for assistance in reminding PI’s that if they disclose PHI to a sponsor, study monitor, academic affiliate or another non-VA entity who is not a research team member an accounting of disclosure is required § Direct PI to the Privacy Officer for assistance on how to maintain an accounting of disclosures. VHA Office of Informatics and Analytics

Re-use of Data § If the expiration date on the HIPAA authorization passes, the

Re-use of Data § If the expiration date on the HIPAA authorization passes, the PI can no longer use any of the information previously collected unless the PI obtains a waiver of HIPAA authorization from the IRB § Re-use of data has to be consistent with the original informed consent and HIPAA authorization VHA Office of Informatics and Analytics

Miscellaneous Information § No Business Associate Agreement (BAA) is required for an entity involved

Miscellaneous Information § No Business Associate Agreement (BAA) is required for an entity involved in VA research as a contractor or who has a Memorandum of Understanding (MOU) or Memorandum of Agreement (MOA) to be involved in the research § Even though a researcher is orally (either through telephone calls or on-line surveys) collecting IIHI, a HIPAA authorization or a waiver would be required VHA Office of Informatics and Analytics

Miscellaneous Information § Signature on the HIPAA authorization cannot be waived (e. g. ,

Miscellaneous Information § Signature on the HIPAA authorization cannot be waived (e. g. , a legally authorized representative must sign for comatose subjects) § Privacy breaches must be reported to the supervisor, Privacy Officer, and Information Security Officer within one hour. Examples include Ø No HIPAA authorization Ø No subject signature on HIPAA authorization Ø Sending unencrypted PHI by email Ø Disclosure to non-VA entity not listed on HIPAA authorization VHA Office of Informatics and Analytics

Miscellaneous Information § When emails are used for VA research Ø Only work email

Miscellaneous Information § When emails are used for VA research Ø Only work email addresses should be used o Home emails should not be listed due to privacy and security concerns Ø Encrypt any emails that contain IIHI VHA Office of Informatics and Analytics

Contact Information/Questions? Pat Christensen VHA Privacy Office VHA Privacy Specialist VHAPriv. Issues@va. gov patricia.

Contact Information/Questions? Pat Christensen VHA Privacy Office VHA Privacy Specialist VHAPriv. [email protected] gov patricia. [email protected] gov VHA Office of Informatics and Analytics