Tuesday, January 17, 2017

OCR Updates HIPAA Guidance on Sharing Information with Patients’ Loved Ones, Family and Friends

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."

Heathcare Compliance Solutions Inc. recommends consulting with your practice or organization's attorney and/or your state medical association/board to verify your state's legislation regarding the definitions and legal ramifications of terms relating to this regulation such as: "Personal Representative", "Lawful Marriage", "Family Member", etc..


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