TRIBAL HEALTH ORGANIZATIONS AND THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)

By Molly Barnett, Esq.

Is my tribal organization subject to the requirements of HIPAA?

 

If you are a tribal organization which a) provides health care and transmits patient health information electronically OR b) is part of the Indian Health Service program under the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.), your organization must comply with the Health Insurance Portability and Accountability Act (HIPAA). [HIPAA applies to “covered entities”; refer to the following outside link for more information on “covered entities”: http://www.cms.gov/HIPAAGenInfo/Downloads/CoveredEntitycharts.pdf ]

 

Why is a tribal entity subject to federal requirements?

 

Interestingly enough, according to the Indian Health Service’s (IHS) website, “We have no official answer to that question [of whether Tribes are required to become compliant under HIPAA]… However, we urge all members of the Indian health community to begin work toward HIPAA compliance.” The issue has not yet been brought in court, although the federal agency which enforces HIPAA, the Office of Civil Rights, is requiring tribes to comply. Violations of HIPAA could result in fines. Thus, as a purely precautionary matter, tribal health care providers which transmit patient health information electronically and/or are part of an IHS program may want to seriously consider HIPAA compliance until the issue is resolved in court. Furthermore, compliance with HIPAA might help protect against damages lawsuits for privacy violation, even if HIPAA is determined by a court not to require tribal compliance.

 

            If the tribal organization would like to impose standards which are more stringent than HIPAA, it should feel free to do so.   

 

The basics of HIPAA:

 

            HIPAA requires organizations to safeguard patient health information and to restrict disclosure of patient health information. There are different rules for disclosure, depending on the person or organization requesting disclosure. Usually, the patient is entitled to receive their own health information (unless it will hurt them, another person or another exception applies). Usually, persons within the organization may access patient health information only if it is necessary to do their jobs (“need to know basis”). Disclosures to persons outside the organization is allowed only in certain circumstances, which may require an authorization/consent form from the patient (if there is an emergency or suspicion of child abuse, please consult HIPAA for specific disclosure rules in these circumstances). HIPAA has a number of requirements that must be included in the authorization/consent form for it to be valid. THIS IS ONLY A SUMMARY; PLEASE CONSULT HIPAA FOR A COMPLETE DESCRIPTION OF THESE REQUIREMENTS.

 

Other requirements of HIPAA:

 

            Patients must receive notice of the organization’s HIPAA policies and of their rights under HIPAA. A notice form is not valid unless it precisely complies with HIPAA’s notice requirements.

 

All employees of a health organization must be given training and a copy of written internal policies regarding HIPAA. Employees must report violations of HIPAA.

 

The Security Rule section of HIPAA requires certain precautions be taken regarding electronic patient health information (EPHI). Such precautions include encryption and restricting computer and software access to EPHI via secure log-on systems. THIS IS ONLY A SUMMARY; PLEASE CONSULT HIPAA FOR A COMPLETE DESCRIPTION OF THESE REQUIREMENTS.

 

            If your organization provides alcohol and/or substance abuse treatment, there are more stringent laws governing the protection of patient health information. See 42 C.F.R. Part 2.

 

HIPAA Resources

 

HIPAA Statute: P.L. 104-191, available online at http://www.hhs.gov/ocr/privacy/hipaa/administrative/statute/index.html .

 

HIPAA Regulations: 45 C.F.R. Parts 160, 162 and 164, available online at http://www.hhs.gov/ocr/privacy/hipaa/administrative/combined/index.html .

 

U.S. Department of Health and Human Services, Office of Civil Rights Website: http://www.hhs.gov/ocr/office/index.html .

 

Indian Health Services Website: http://www.ihs.gov/adminmngrresources/hipaa/index.cfm?module=faq .

 

For more information about HIPAA compliance for tribal agencies or to request HIPAA training, please email meb@ssr-lawyers.com .

 

 

 

This post is for informational purposes only; it is not intended to be legal advice. This post in no way creates an attorney-client relationship. Please consult with an attorney of your choice for advice about your particular case. 

A Christmas Poem from Indian Country

Complements of someone who emailed Attorney Lisa Yellow Eagle

 

T’was the night before Christmas and all thru the teepee 

Not an eyelid was shut because nobody was sleepy.

The Wal-Mart bags were hung by the fire so neat,

Hoping Chief Nick would fill them up with smoked meat.

The children were nestled all snug in their beds

While visions of fry bread men danced in their heads.

With ya-yah in her kerchief and my hair braided tight

We turned up the scanner to entertain us tonight.

Then all of a sudden a crash we did hear,

The rez dogs started barking but that’s the norm around here.

The moon on the breast of the new falling snow

Gave the luster of midday to my rez car below.

When what do my ndn eyes should appear

But an ndn sleigh with eight tiny reindeer!

With a little rez driver so stoic but quick

I knew in a moment it must be Chief Nick.

More rapid then Rez Ballers the reindeer they came

And he pointed with his lips then called them by name.

On Fancy Dancer, on Smoked Meat, on Thomas and Victor,

On Back Strap, on Philbert, on Black Cloud and Trixster.

Ssshhh! Land beside the teepee, quiet for good reason

We have to be careful it’s deer hunting season.

The stickers on his sleigh read “I love baloney”

Another one said “My other ride is a pony.”

The one in the middle said “NDN Power”

There was duct tape and bailing wire holding it together.

When the teepee flap opened I just hung my head,

For I just finished off his stew and fry bread.

He was dressed in full regalia from his head to his moccs,

His outfit fully beaded right down to his socks!

His huckleberry eyes twinkled, his braids were like WOW!

You have to see it for yourself, he was just … somehow!

The stump of his peace pipe held tight in his teeth

And the smoke signals encircled his head like a wreath.

His face was kind of greasy and he was ndn size,

He had a commod bod only a skin could recognize.

He spoke not a word just flashed his Tribal ID.

He left a block of cheese and new tape recorder under the tree.

He left hand drums and blankets and round dance CDs,

Huckleberry pies and the new Northern Cree!

Then he pointed with his lips, gave a big hearty AYYE!

And he danced out the door and jumped in his sleigh.

I heard him exclaim as he flew out of sight

Merry Christmas to all!  Let’s round dance tonight!

HO! HO! HO!

WHY IS YOUR CREDIT REPORT IMPORTANT?


A credit report is a document that contains information about where you live, who you have borrowed money from, whether you pay your bills on time, whether you have been sued, whether you have been arrested, and whether you have filed for bankruptcy.  Credit reports are compiled by consumer reporting companies.  The three nationwide consumer reporting companies are Equifax, Experian, and TransUnion.  Federal law requires each of these companies to provide you with a copy of your credit report free of charge, at your request, once every 12 months.

Your credit report is important for two major reasons.  First, information in your credit report is used to evaluate your applications for credit, insurance, employment, and housing.  Second, careful review of your credit report is a good way to spot identity theft.

It is important to request your credit report from each of the three companies because each report may contain different information.  The safest way to ensure that you receive these reports free of charge is to request them online at AnnualCreditReport.com.  Other sources for credit reports may require fees or trial memberships.

Once you receive your credit reports, review each one carefully to make sure the information they contain is accurate.  If a report contains wrong information, it may be because a creditor made a mistake when it reported the information or it may be because someone else has used your identity or personal information.  If you receive a credit report with inaccurate information, you should contact the credit reporting company and the creditor in writing to dispute the error, explain why the information in incorrect (providing copies of supporting documents is helpful), and request that the information be removed or corrected.  If your credit report contains information about accounts that are not yours, or if you have other reason to believe that your identity may have been stolen, you should place a “fraud alert” on your credit reports by calling at least one of the nationwide consumer reporting companies.  The phone numbers are:

  • Experian: 1-888-EXPERIAN
  • TransUnion: 1-800-680-7289
  • Equifax: 1-800-525-6285

You should also consult an attorney about additional steps you can take if this happens.

Consumer Rights Against Debt Collectors

YOUR RIGHTS AGAINST DEBT COLLECTORS

The Fair Debt Collection Practices Act (FDCPA) is a federal law that provides protections for consumers against harassment and improper behavior by debt collectors.  It is important to know your rights under this law even if you pay your bills on time, because creditors do make mistakes which can result in debt collection activities.

Under the FDCPA, a “debt collector” is someone (a third party) who regularly collects debts owed to others.  This means that FDCPA protections do NOT apply to activities of creditors (to whom the money is directly owed).  The FDCPA applies to personal debts – not to business debts.

Debt collectors CANNOT:

  • Call you before 8:00 am or after 9:00 pm without your permission
  • Call you at work, if you tell them you are not allowed to receive calls there
  • Contact you after you inform them in writing to stop contacting you (except to tell you that they will cease contacting you or that they intend to take a specific action, such as filing a lawsuit)
  • Contact other people about your debt (but they may contact other people for the limited purpose of finding out your contact information or where you work)
  • Threaten you with violence or harm
  • Publish a list of people who do not pay their debts
  • Use obscene or profane language
  • Call repeatedly to annoy you
  • Make false statements about who they are or who they work for
  • Misrepresent the amount you owe
  • Tell you that you will be arrested if you do not pay your debt

If a debt collector does any of these things, you may have a cause of action against them.  If this happens, you should keep a detailed record of the debt collector’s actions (a phone log of when calls were made and what was said can be helpful) and consult with an attorney immediately.

Please note that this list is not exhaustive, and the state in which you live may provide additional legal protections.  If you have questions about these issues, please consult an attorney.

WILLS, ESTATES AND TRUSTS PRACTICE INFORMATION


If you own property, a will and other estate planning tools like trusts can make decisions easier for your loved ones if something happens to you. Planning ahead by having the proper estate plan -just in case- can make it so that your final wishes about your possessions will be honored.  The alternative is to have the State determine what happens to your property.  Why risk leaving your loved ones to deal with a lengthy formal court proceeding to administer your estate? Why risk increased tax liabilities by not planning ahead?  Whether you need a will drafted for the first time or need to update a previous will or trust due to changes in family, tax or other life changing  circumstances, Smith, Shelton and Ragona, LLC, can assist clients in every stage of the estate planning process. The following are examples of estate planning tools we utilize:

1.      The appropriate estate planning documents to accommodate different family situations and different estate values

2.      Revocable and non-revocable trusts

3.      Planning and utilizing estate tax exemptions/credits and marital deduction formulas to reduce estate and gift taxes whenever possible

4.      Living wills

5.      Powers of attorney

6.      Medical Durable Power of Attorney

7.      Trusteeships, fiduciary, conservatorship, guardianship and personal representative issues

8.      American Indian wills, trusts and estates

In addition, we can help clients with the administration of a decedent’s estate, including probate of wills and intestate estates (estates without wills) and advising personal representatives with the administration of an estate.

Please call us at 303-255-3588 to set up an initial interview and to find out more about our wills, trusts and estates law practice.

Please NOTE: The information in this flyer is intended to inform you about our practice; it is not intended to be an advertisement. Please also note that the information in this flyer is not intended to be legal advice and that this flyer in no way creates an attorney-client relationship. An attorney-client relationship may only be created with Smith, Shelton and Ragona, LLC via a written contract of representation.

Snapshot of the American Indian Probate Reform Act and the Importance of a Will

            The American Indian Probate Reform Act (AIPRA) (P.L. 108-374; 118 Stat. 1773) was enacted in 2004.  AIPRA applies to American Indians who: (1) are members of a tribe or are eligible for membership, (2) meet the definition of “Indian”; (3) owned a trust interest as of October 27, 2004, and (4) died on or after June 20, 2006.  AIPRA does not apply to members of the Five Civilized Tribes or the Osage Tribe who own land that is in restricted fee status.  AIPRA applies if both: 1) a person did not have a will when he/she passed on and 2) if the tribe did not have an approved tribal probate code.  AIPRA applies to IIM accounts, to trust property where the tribe has NOT adopted an approved tribal probate code, and when the tribe has not adopted a probate code and the 5% interest rule applies.  AIPRA does not apply to non-trust property, personal possessions and/or money. 

 

            It is important to write a will, especially if you have property that will fall under AIPRA.  If you do not write a will, AIPRA may require that your trust property pass first to your spouse and children, followed by grandchildren, great-grandchildren, and if you have no heirs, then to your parents, or brothers and sisters as long as they meet the definition of Indian or are a descendant within two generations. 

 

If you do not write a will, and have less than 5% interest in a whole parcel of land, then your spouse may live in the family home on the parcel.  After your spouse passes on, that less than 5% interest will go to the eldest eligible child, then to the eldest eligible grandchild, and then to the eldest eligible great-grandchild.  You will not be able to leave your trust property to any other person.  Furthermore, if you have a less than 5% interest in a whole parcel of land, the DOI may purchase it for fair market value during the probate proceeding without the consent of your heirs. The property will not pass to your heirs at all in this case.   

 

The best way to ensure that your property will pass to the people you want is for you to have a will.

What if you are suspected of DUI or taken to the Police Station in Colorado?

KNOW YOUR RIGHTS IF…

YOU’RE SUSPECTED FOR DRUNK DRIVING IN COLORADO:

1. An officer has the right to request your driver’s license, registration, and proof of insurance.

2. If you are suspected of drunk driving (DUI) and refuse to take a breathalyzer test, your driver’s license will be suspended. If anyone suspected of DUI refuses to take a breathalyzer test, which is preceded by an “express consent” acknowledgement by the officer, it will result in an automatic one-year revocation of your driver’s license in Colorado.  Additionally, you have a limited amount of time to request a hearing before the Colorado DMV after a DUI citation.

3. As of July 1, 2010, a new law was passed that imposes stricter penalties on repeat offenders.  Now a ten day minimum jail sentence is mandated for one’s second drunk driving offense and a 60 day minimum jail sentence for third and subsequent offenses.

YOU’RE ARRESTED OR TAKEN TO A POLICE STATION IN COLORADO:

1. You have the right to remain silent and to talk to a lawyer before you talk to the police.

2. You have the right to ask for a lawyer. If you cannot afford a lawyer, one will be appointed to represent you at no cost (defendants of certain misdemeanors may not receive an attorney at no cost, but may hire an attorney).

3. Within a reasonable time after your arrest or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen in on the phone call.

This information should not be used to predict the outcome of any particular legal case. Rather, you should consult your own attorney about your individual case. This information is not intended to be legal advice and its inclusion on this website in no way creates an attorney-client relationship. Smith, Shelton & Ragona, LLC require that you enter into a written representation agreement before you become our client. Smith, Shelton & Ragona, LLC, does not guarantee that the content on this website is accurate, complete or up-to-date because the law changes over time. Please consult an independent attorney of your choice before taking legal action or relying on the content of this website. Finally, please note that Colorado does not certify attorneys as specialists in any field.

50 Year Land and Grazing Dispute on Navajo Reservation Resolved; Homesite Leases on McCracken Mesa Reaffirmed.

The Johnson family residing on the Navajo Reservation’s McCracken Mesa, located in the southeastern portion of Utah, can finally live in peace. After litigating a dispute over homesite leases and grazing permit rights, Attorney Keith C. Smith of Smith, Shelton & Ragona, LLC, (retained in 2007) secured the family’s right to reside on the Mesa without any further interference. On September 24, 2010, Justice Arene Black of the Navajo Nation Trial Court ruled against Helen Yellowman, a grazing permit holder, to stop interrupting homesite lease improvements, stop interference with a Johnson grazing permit, or otherwise interfering with the Johnson’s ability to improve their leases.

Attorney Smith, a full blooded member of the Navajo Nation, represented the Johnson family in the dispute. In deciding to take the case, Smith commented, “I have vested interest in land disputes, particularly this area, because I am not only a member of the tribe, but I am from that community. I feel somewhat duty-bound to do what I can to help those in my community protect their interests.” Moreover, Smith believed the issue needed to be resolved for legal purposes as well. He stated, “[T]his was a unique case because it involved a mix of land and grazing issues, which were intertwined. That aspect coupled with the fact the area in dispute was added to the Navajo Nation in 1958, with no formal resolution regarding permitted grazing, made it particularly salient and necessary for resolution.”

The facts of the dispute became quite convoluted and complex, rendering a 43-page order written by Judge Black. In short, the Johnsons were sued by Helen Yellowman (Plaintiff), who claimed she was the rightful heir to a grazing permit of a man named “Little Wagon,” which in turn granted her the right to Little Wagon’s alleged customary use area, which is now occupied by Smith’s client – the Johnsons.

McCracken Mesa was added to the Navajo reservation in 1958, as an exchange for the land taken when Lake Powell was created and Navajo land flooded to create the lake. Yellowman argued her permit should grant her priority over any other persons occupying the area she now claimed on McCracken Mesa. However, as the evidence was heard, it was determined that no grazing permits were ever issued for McCracken Mesa, much less one that was issued before it even became part of the reservation.

The main body of ruling stated that Yellowman cannot use a grazing permit to expel others from land; it can’t be used as a deed or similar instrument to claim “I own this land.” Moreover, the court stated that Yellowman waited much too long to make use of the grazing permit, and to now attempt to establish a use after 50 years after the fact is not plausible. While the court did say it did not have the authority to cancel the grazing permit, which was not a request made by the Johnsons, it did say you must put it to beneficial use or face the consequences, such as cancellation.

From a legal perspective, Smith commented, “This ruling is important because it makes a clear distinction between home site leases (leases obtained so you build or place a home in a given area on the reservation) and grazing permits, the respective legal authority granted with each, and how each one can be used by a member.”

However, from his personal vantage point, he added, “I do think this case will have an impact [on the community]. For so long, even since I was young boy living on the reservation, residents seemed to assume a grazing permit could be wielded like a sword to expel others from “their” grazing areas. I feel there is somewhat of a misunderstanding of ‘use and occupancy’ of trust land as opposed to outright ownership. I think the ruling will shed some light on how similar disputes ought to be resolved.
Reflecting on the non-monetary fulfillment a case like this can bring, Smith concluded, “Although the court did not grant everything in our clients’ counterclaims, which rarely happens, they were elated by the court’s ruling on what were clearly the most important issues germane to the case, namely the court’s reaffirmation of their home site leases and right to occupy their respective areas, without threat of eviction, harassment or delays in improving their homes. When I broke the news, I could hear one client get choked up and reply: ‘Finally, after so long this matter has been finished. We can now move on.’”

2010 Oglala Nation Pow-Wow and Rodeo Challenge

Smith Shelton and Ragona, council for the Oglala Sioux Tribe, was informed of a challenge issued at the Tribe’s most recent Tribal Council meeting. The Tribe informed all of the law firms representing it that one attorney donated $1,000.00 to help support the 2010 Oglala Nation Pow-Wow and Rodeo. That attorney, Mario Gonzales, extended the challenge for all other attorneys and law firms representing the Tribe do the same.

First, Smith, Shelton and Ragona would like to thank Mr. Gonzales for extending the challenge. Even though Smith, Shelton and Ragona already purchased an ad in the 2010 Oglala Nation Pow-Wow and Rodeo program, the firm still met the challenge. Not only did the firm agree to donate $1,000.00 to this year’s event, but it would like to return the challenge and double it.

Attorneys Smith, Shelton and Ragona pledge to donate $2,000.00 to next year’s Oglala Nation Pow-Wow and Rodeo, and hereby challenges the Gonzales Law firm to match its $2,000.00 donation next year.