Clarification For Sharing Patient Information
A January 10, 2017 Issuance from
Heath and Human Services' (HHS) Office if Civil Rights (OCR) updating new
privacy guidance is aimed at clarifying that the HIPAA Privacy Rule does permit disclosures of health information to a patient's loved ones regardless of
whether they are recognized as relatives under applicable law. This guidance
for healthcare professionals is to help clear up confusion about allowable
disclosures of protected health information to spouses, relatives, and
patients’ loved ones.
The majority of healthcare
professionals are aware that the HIPAA Privacy Rule permits them, within the exercise of their own professional judgement, to share the protected health information of a patient
with a relative or loved one or if it is in the patient's best interest.
However, the 2016 Orlando nightclub shooting incident revealed that many
healthcare professionals are unsure about how the HIPAA Privacy Rule – 45 CFR164.510(b) – applies to same sex couples.
OCR has confirmed that the Privacy
Rule permits a covered entity to “share PHI with an individual’s family
member, other relative, close personal friend, or any other person identified
by the individual, the information directly relevant to the involvement of that
person in the patient’s care or payment for health care.” OCR has also
confirmed that covered entities are allowed to disclose relevant information
“to notify, or assist in the notification of (including by helping to identify
or locate), such a person of the patient’s location, general condition, or death.”
The recipient can be a “patient’s
family member, relative, guardian, caregiver, friend, spouse, or partner,” but
also any other individual that is a nominated personal representative of the
patient. A personal representative of a patient must, as far as the Privacy
Rule is concerned, be treated as the individual for purposes such as exercising
the patient’s Privacy Rule rights, including providing access to their health
information. There are limited exceptions, which are detailed in 45 CFR164.502(g).
OCR has confirmed that covered
entities are permitted to share a patient’s PHI with same-sex partners, and
explains that the list of potential recipients of PHI is in no way affected by
an individual patient’s sex or gender identity, and neither by the sex or
gender of the potential recipient.
OCR also sought to confirm who can
be classed as a personal representative of the patient, saying “the Privacy
Rule generally looks to state laws governing which persons have authority to
act on behalf of an individual in making decisions related to health care.”
For example, if a state grants
legally married spouses health care decision making authority for each other, a
covered entity would be in violation of the Privacy Rule if access to the
patient’s information was not granted if requested by a spouse, regardless of
the sex of that individual.
While the covered entity should
seek permission from the patient concerned prior to sharing information, in
cases when the patient is incapacitated or not available, covered entities
should use their professional judgement if the sharing of information is in the
patient’s best interest. Should a patient be deceased, information can be
shared with a person who has been involved in the patient’s care or who has
made payment for medical services prior to the patient’s death.
The new OCR privacy rule guidance,
issued in a frequently asked questions format, was developed in large part to
address confusion following the 2016 Orlando nightclub shooting about whether
and when hospitals may share protected health information with patients' loved
ones, OCR says in a statement. "In particular, the FAQ makes clear that
the potential recipients of information under the relevant permissive
disclosure provisions ... are not limited by the sex or gender identity of the
person," OCR says.
On that same topic, OCR also issued
updated guidance "that makes clear that the terms 'marriage, spouse and
family member' include, respectively, all lawful marriages - whether same-sex
or opposite-sex) - lawfully married spouses and the dependents of all lawful
marriages, and clarifies certain rights of individuals under the Privacy
Rule."
Source(s): HCSI, http://www.hipaajournal.com/, http://www.healthcareinfosecurity.com/, https://www.hhs.gov, https://www.law.cornell.edu
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