Applies to all facilities and covered entities
Posted December 5, 2002
By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
I walked into the Serendipity Nursing Home. It was 6 pm on a dark, cold and drizzly Saturday evening in November. I was dateless as usual on this Saturday night (but that’s a story for another time), so I had decided to come visit all my grandparents and to put on one of my occasional “film festivals” for the residents of the Serendipity.
Mr. Heiligenthal, WWII veteran and successful business man in town, donated a big screen TV and a DVD player to the Serendipity. Every once in a while, I would rent a mess of movies and bring them to the home to play for everybody.
I walked into the living room, as everyone there calls it, and saw two of my grandparents sitting at the card table with another couple. These are my maternal grandparents, Grandmommy Audrey and Granddaddy Harold, and they were spending their Saturday night the same way they have spent it for fifty years, playing poker with Myrtle and Fred Guthmiller. I still have vivid memories of frequently visiting Grandmommy and Granddaddy for a weekend and hearing the foursome play far into the night, way past the time I’d gone to bed. Every once in a while, I’d be jerked awake by Myrtle shrieking: “D__mn it Harold!! Yer’ cheatin’ again!”
None of them figured that going to live in a nursing home should change how they spent their Saturday nights—so it didn’t. (Mr. Hershey, the owner/administrator of the home didn’t mind—after all, he ended up with the Serendipity after losing a game of poker.) The only difference now is that all four of them occasionally fall asleep in the middle of a hand. Myrtle will then wake them all up by shrieking: “D__mn it Harold!! Yer’ cheatin’ again’! I believe that when she falls asleep during one of those hands of poker she dreams about all those games from long ago.
As the foursome played poker, I looked over and saw my paternal grandmother, Grandma Clara looking over at the poker game with a baleful eye. Unlike, my Grandmommy and Granddaddy, who are casual Catholics, Grandma is a hard-shell Baptist. She takes her religion seriously and doesn’t approve of poker. When I was in junior high, I learned that she also doesn’t approve of dancing. She told me that dancing causes people to think about doing things they shouldn’t do. Back then, I didn’t understand what she was talking about. When I was 14, all I thought about when I tried to dance were five very important concerns:
- Do I look fat?
- Do I look silly to everybody when I dance?
- Do I look fat?
- Does my date look silly to everybody when he dances?
- Do I look fat?
My grandparents all greeted me warmly. They were all excited about the “film festival” that I had planned. They asked Betty Chavez, a CNA, to let everybody else know that I was there.
As the folks gathered, I set up the DVD player. I usually brought movies like How the West was Won or War Wagon, but tonight I had something special in mind. I had brought the full DVD set of all the episodes of this season’s prime time show The Bachelor. The folks there at Serendipity Nursing Home love The Bachelor. They had already watched every episode, but that didn’t matter. They were all looking forward to seeing it again. Besides, a good number of them had already forgotten what happened in those episodes.
For those who aren’t familiar with The Bachelor, it’s a show where a handsome, successful young bachelor spends seven or so weeks dating and weeding through a field of twenty five eligible young women in order to find his potential bride. Each week, he goes out on dates with the young women in order to get to know them. At the end of each episode, there is a Rose Ceremony where he gives roses the women he wants to continue courting. Each week, there are fewer roses to give. At the end, he is left with one rose. For this last season, the bachelor, a young man named Aaron, gave the last rose to and proposed to a young woman named Helene.
The dates between Helene and Aaron that led up to this proposal usually involved sitting in a hot tub having such scintillating conversation as:
Aaron: “Helene, even though we’ve only known each other for two weeks, do you think that you could see yourself moving to Springfield , Missouri to be with me?”
Helene: “Well that would depend on many things, and everything else.”
Aaron: “What kind of things?”
Helene: “Just whatever comes up, and everything else.”
From the beginning, we all knew that Helene was Aaron’s favorite. We knew because, while all the other girls would initiate kisses with Aaron, he always initiated the kissing with Helene. We could tell that Aaron was the initiator of the kisses with Helene, because Helene would continue talking throughout the kiss.
Aaron: “I really feel comfortable with you, Helene.” (Aaron leans over to kiss Helene)
Helene: “Well…ummf, muuuf, faaah, and everything else.”
As we sat there watching The Bachelor that evening, we started counting the number of times that Helene said “and everything else.” By the third episode, the count was forty five even though Helene had only been on the screen for a total of five minutes for all three episodes.
As we watched, I looked over at Grandma who was pretending not to watch because of all those hot tub scenes. I knew she really loved The Bachelor as much as everyone else in the room, and was just pretending. Grandmommy had reported to me that Grandma had made a point to be sitting in the living room every week when the show came on TV. I also knew Grandma liked The Bachelor because of an incident that had happened a few weeks before this night in the facility’s library.
The Serendipity has a little library for the use of the residents. The library also has a computer hooked up to the internet. I taught Grandma how to search the internet so that she could go to the religious sites she enjoys. One afternoon when I was at the Serendipity, I snuck up on her while she was on the internet. Before she realized I was there, I saw that she was visiting The Bachelor message board. There she was, posting a message to The Bachelor message board under the screen name—Biblebeltgal.
As we all sat there enjoying ourselves, I noticed that the rain was coming down harder. It had been raining for five straight days in our little Hill Country town, and I knew that the ground was thoroughly saturated. The rain got harder and harder, until the building seemed to shake under the onslaught. Suddenly, everything went dark as the electricity went out. The emergency generator kicked on, and the room lit up again.
Then, the double doors to the living room swung open and a grim faced Mr. Hershey, the owner/administrator of the Serendipity, entered the room in his wet rain gear. Dr. Eberhardt, the Medical Director came right behind him. Lastly, Sheriff Koepke entered the room. As the men removed their wet gear, they talked urgently and quietly to each other. Soon, they were joined by the Director of Nurses, Sanghamitra (Sammi) Chowdry, and others on the staff.
Sammi saw me and motioned for me to come over. “Suzanne Roberta, we are going to have to evacuate the facility,” she whispered “The creeks and rivers are already overflowing, and the word is that there is a big wall of water coming from the north down the Guadalupe River .”
“Sammi, I thought the facility is outside of the flood plain,” I said.
“Those flood maps are old, and there’s been a lot of construction and change to the terrain to the north that of us since the maps were made. We can’t risk it.” Sammi replied. “We’re moving everyone to the old hospital, south of town.”
Sammi and I go back a long way. We first met at Girl Scout day camp when we were still Brownies. We were assigned to be buddies as part of the buddy system that was set up by the troop leader. Everyone had to have a buddy to go anywhere in the camp. There were lots of rattlesnakes in the area, and we all carried hoes so we could chop off a snake’s head if we encountered one. The camp was really rustic. We had to dig our own little latrines and put lime in the holes. When Sammi and I had to go to the bathroom, we’d go with each other and take turns. One of us would go, while the other guarded the perimeter, enthusiastically brandishing her hoe. We were ready to chop off the head of any attacking rattlesnake audacious and fool enough to follow us to the latrine. I, for one was always hoping one would show up so that I could try out my hoe-slashing technique. For some reason, we were all smart enough not to tell our mothers about this aspect of Girl Scout camp. After all, when I was growing up my mother was convinced that I was about to be killed every second of the day no matter what I was doing.
Sammi is a first generation American, whose parents immigrated from India . Her family assimilated into our little Hill Country town really quickly. Sammi is the only Asian- Indian American I know who was also a champion barrel racer during junior high and high school. Astride her pony, Shiva, her black hair flowing behind her, she looked like a glamorous Asian Queen as she thundered around those barrels. After high school, she went to nursing school at the University of Texas . She came back and worked at the hospital for a while. After that, she started her career in long term care and became DON at the Serendipity. Calm and confident, she’s an inspiring leader and a caring nurse. Both staff and residents love her.
“Okay Sammi, what do we do?” I asked.
“Let’s start rounding everybody up and getting them ready to go,” she replied.
By then, staff members who were off the clock had started showing back up to help. Family members who live close by the facility begin appearing. We all pitched in and started helping the residents get dressed and ready to leave.
As we worked, the two town ambulances pulled up in the circular drive. Mr. Hardy, the manager of the bus station showed up with a Greyhound bus he had commandeered. Mr. Chrisman, the director of the local family owned and run funeral home, arrived with his son and two hearses. In the interest of discretion, the name of his funeral home was taped over with duct tape, so that the hearses just looked like old fashioned ambulances.
At one point, as I wheeled Mrs. Ivey Kukendahl out into the lobby, I noticed that everyone else had stopped and stood frozen as they stared open mouthed toward the front door. I looked over and my mouth dropped too. There stood a tall, shapely and beautiful blonde. It was Iris England, a TDHS surveyor who lives in town. Iris is an intelligent, eminently reasonable woman who is in her fifties—but seems much younger. She is a nurse who has actually run a long term care business. She understands the regulations, and interprets them with a large dose of common sense. She is also firm but fair. It has always been apparent that she cares about both the residents and those who labor in the facilities. She is always the first to volunteer with TAHSA and THCA to put on training sessions for people working in long term care.
When she noticed us all staring at her, she snapped out in a spirited fashion, “For goodness sakes! I’m on my own time and can pitch in and help if I want! Stop starin’, close your mouths, and let’s get on with it!
So we did.
As we loaded the last residents into the variety of vehicles that had appeared, the rain began to come down even harder. The volunteers like me got into our own cars and trucks and joined the bus, ambulances and hearses caravanning to the old hospital. The caravan crawled along the streets as the rain came down causing great sheets of water to wash over our windshields and obscure our vision. Sheriff Koepke led the way, his lights flashing. He had to lead us on a circuitous route so that we avoided the low water crossings that routinely sweep unknowing motorists into the swollen creeks during rainy seasons in the Hill Country. Because of this, and our snaillike progress, a ten minute trip ended up taking two and half hours.
As we slowly drove the winding and slippery country roads, I thought about why so many in our community had shown up to help without being called to do so. I knew it was because we all realized what precious cargo we carried. We were carrying our grandparents, our parents, our aunts and uncles to safety. We were carrying people who survived the depression and war to build a secure and prosperous country and community, where we, their children and grandchildren could grow up to be healthier, wealthier and freer than they were. None of us needed the government to tell us what we needed to do that night—we just did it.
We arrived, got the residents into the old hospital and into bed. Everyone had their vital signs checked and their medications given. Exhausted, I went into the hospital cafeteria to have a cup of coffee with the others. I sat down at a table with Dr. Eberhardt and Mr. Hershey.
As I sat sipping my coffee, Sheriff Koepke came into the cafeteria.
“Sam,” the sheriff said to Mr. Hershey, “My office is being besieged with calls from family members wanting to know how their relatives are. They are seeing what’s happening in this county on the news. Will you let me patch you through to my office so that you can answer their questions? Grover Gerhardt’s niece, Lillith is on hold wanting to know Grover’s medical condition.”
“I haven’t received the written authorization back from Grover’s guardian, Juanita . You know the authorization that lets me talk to Lillith about Grover’s condition. Lillith is not involved at all with Grover’s care or payment for related to Grover’s health care,” Mr. Hershey said with a sheepish look on his face.
Problem? Without a proper authorization, HIPAA appears to preclude the disclosure of medical information about Grover to Lillith in this situation. A facility can disclose information to Lillith in the absence of authorization if it is in Grover’s best interest. However, in this example, giving information would serve to give Lillith peace of mind—not Grover. I guess that Congress didn’t envision what an emergency situation is really like when it wrote HIPAA and the fact that relatives such as Lillith might be frantic even though they don’t have input into the resident’s health care. They put some emergency sections in HIPAA, but providers are going to have to go through complicated check lists to determine what information can be given out and to whom.
I think that Congress doesn’t know what it’s like to be in the middle of an emergency because our Congressmen haven’t watched any of those disaster movies from the 1970’s. You know, like the ones where a ship hits something, turns over and starts sinking and the passengers have to crawl up to what is now the top and some of them act noble while others act like big pains in the neck. Then there are the ones where the pilot on a commercial airliner has a heart attack and the stewardess (who doesn’t know spit about flying an airplane) has to land the plane on a football field. You might remember that those movies always featured a red-faced George Kennedy sweating profusely and looking really serious.
It is quite apparent from those movies that no one has time while a boat sinking and turning over to go through a checklist to see what you can and cannot tell friends and distant relatives about the people on a sinking ship. Besides, if in one of those airplane movies, George Kennedy told Lillith he couldn’t let her know how her Uncle Grover’s high blood pressure was while the plane was in emergency landing mode, she’d probably rip his red, sweaty head right off his shoulders.
And another thing , I guess Congress doesn’t get Lifetime Movie Channel where they could watch those “ripped from the headlines” movies about obsessive, lunatic ex-husbands of nurses taking hostages in hospitals because their nurse ex-wives got restraining orders on the basis that the ex-husbands were acting like obsessive lunatics. From what I see, Congress has created this long list of exceptions that you have to interpret to determine when and what you can tell the police about patients. Can’t you just imagine what will happen when they make one of those movies after HIPAA goes into effect and the obsessive lunatic ex-husband lets the Director of Nurses at the hospital talk to the hostage negotiator on the telephone?
Hostage Negotiator: “Nurse Ratchett, please tell us the condition of the patients in the hospital.”
Nurse Ratchett: “I don’t know if I can do that. That’s protected information under HIPAA. The evil pharmaceutical companies might get hold of the information and send advertisements about life-saving drugs to the patients. So, first, I have to ask you this long checklist about why you need this information. Now, are you representing to me that ‘the immediate law enforcement activity that depends on disclosure would be materially and adversely affected by waiting until the individual is able to agree to the disclosure’?”
Now how long do you think that the obsessive lunatic husband hostage taker is going to put up with that?
So, I think the thing that we should all do is write our Congressmen and suggest that they have their own film festivals featuring 1970’s movies starring George Kennedy and Lifetime Movie Channel “ripped from the headline movies”. Then they can go amend HIPAA to fit the situations portrayed in those movies.
Back to the story.
Mr. Hershey sat there for moment thinking. Then, he got a stubborn look on his face. He turned to Sheriff Koepke.
“Sheriff, give me that phone,” he growled. “Lillith, honey, is that you? Let me tell you about your Uncle Grover…”
As I sat there watching Mr. Hershey, all I could think about was that battlefield scene in Braveheart where Mel Gibson, playing William Wallace, threw back his head and bellowed, “Freeeedom!”
Disclaimer: The opinions expressed above are just that, my opinions. And you know what they say about opinions. “Opinions are like . . . ummm . . . weeell . . . noses . . . everybody has one.” Also, just because Mr. Hershey breaks the law in this story, please be advised that I am not suggesting that you do the same. You will have to make your own decisions about how you deal with situations HIPAA doesn’t contemplate like an emergency. To get some ideas about that, maybe you should rent one of those George Kennedy movies I was talking about earlier.
To be continued…
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
505 East Huntland Drive, Suite 335
Austin, Texas 78752-3714 USA