HIPAA continues as the gift that just keeps giving–to lawyers at any rate. Apparently, it is being misconstrued around the country to be an obstacle to families seeking to ascertain the condition of their loved ones. From an interesting editorial in the Idaho Mountain Express:
American medicine and its practitioners are among the finest anywhere in the world. However, getting to that treatment through the maze of government and insurance paperwork and waiting for an appointment is another matter entirely.
Now relatives and friends of patients are ruefully discovering an equally frustrating obstacle in the medical bureaucracy: medical professionals and health-care personnel who stonewall when asked even the most fundamental questions about a patient and his or her condition.
Investigators at the Department of Health and Human Resources have uncovered the culprit: widespread ignorance and misunderstanding about rules written into HIPAA, the Health Insurance Portability and Accountability Act, and a knee-jerk tendency of medical personnel to say “No” when asked for patient information.
The lack of understanding is widespread and profound. So profound that some nursing homes apparently stopped having birthday parties for residents because supervisors feared that revealing birthdates would violate HIPAA.
In another case, a woman had to rush from Oklahoma to Florida because the hospital staff wouldn’t tell her anything about her mother’s condition. The staff continued to stonewall after her arrival–an absurd interpretation of HIPAA–especially if the daughter has the power to make health care decisions for her mother.
May a hospital or other covered entity notify a patient’s family member or other person that the patient is at their facility?
Yes. The HIPAA Privacy Rule, at 45 CFR 164.510(b), permits covered entities to notify, or assist in the notification of, family members, personal representatives, or other persons responsible for the care of the patient, of the patientâ€™s location, general condition, or death. Where the patient is present, or is otherwise available prior to the disclosure, and has capacity to make health care decisions, the covered entity may notify family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also use or disclose this information to notify the family and these other persons if it can reasonably infer from the circumstances, based on professional judgment, that the patient does not object. Under these circumstances, for example:
A doctor may call a patientâ€™s wife to tell her that her husband was in a car accident and is being treated in the emergency room for minor injuries.
A doctor may contact a pregnant patientâ€™s husband to let him know that his wife arrived at the hospital in labor and is about to give birth.
A nurse may contact the patientâ€™s friend to let him know that his roommate broke his leg falling down the stairs, has had surgery, and is in recovery.
Even when the patient is not present or it is impracticable because of emergency or incapacity to ask the patient about notifying someone, a covered entity can still notify family and these other persons when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. See 45 CFR 164.510(b). For example, a doctor may, using such professional judgment, call the adult daughter of an incapacitated patient to inform her that her father suffered a stroke and is in the intensive care unit of a hospital
Does the HIPAA Privacy Rule permit a doctor to discuss a patientâ€™s health status, treatment, or payment arrangements with the patientâ€™s family and friends?
Yes. The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patientâ€™s care or payment for health care. If the patient is present, or is otherwise available prior to the disclosure, and has the capacity to make health care decisions, the covered entity may discuss this information with the family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also share relevant information with the family and these other persons if it can reasonably infer, based on professional judgment, that the patient does not object. Under these circumstances, for example:
– A doctor may give information about a patientâ€™s mobility limitations to a friend driving the patient home from the hospital.
– A hospital may discuss a patientâ€™s payment options with her adult daughter.
– A doctor may instruct a patientâ€™s roommate about proper medicine dosage when she comes to pick up her friend from the hospital.
– A physician may discuss a patientâ€™s treatment with the patient in the presence of a friend when the patient brings the friend to a medical appointment and asks if the friend can come into the treatment room.
Even when the patient is not present or it is impracticable because of emergency circumstances or the patientâ€™s incapacity for the covered entity to ask the patient about discussing her care or payment with a family member or other person, a covered entity may share this information with the person when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. See 45 CFR 164.510(b). Thus, for example:
– A surgeon may, if consistent with such professional judgment, inform a patientâ€™s spouse, who accompanied her husband to the emergency room, that the patient has suffered a heart attack and provide periodic updates on the patientâ€™s progress and prognosis.
– A doctor may, if consistent with such professional judgment, discuss an incapacitated patientâ€™s condition with a family member over the phone.
In addition, the Privacy Rule expressly permits a covered entity to use professional judgment and experience with common practice to make reasonable inferences about the patientâ€™s best interests in allowing another person to act on behalf of the patient to pick up a filled prescription, medical supplies, X-rays, or other similar forms of protected health information. For example, when a person comes to a pharmacy requesting to pick up a prescription on behalf of an individual he identifies by name, a pharmacist, based on professional judgment and experience with common practice, may allow the person to do so.
Note that in the editorial that HHS seems to have been investigating the failure of providers to give PHI to those who are entitled to it.