HIPAA’s Use as Code of Silence Often Misinterprets the Law

How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:

 ■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.

Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog?

Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.

“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”

■ Years ago, Patricia Gross, then 56, and a close friend had taken refuge in a cafe at Brigham and Women’s Hospital in Boston, where Ms. Gross’s husband was dying of cancer. She was lamenting his inadequately treated pain and her own distress when a woman seated at a nearby table walked over.

“She told me how very improper it was to be discussing the details of a patient’s treatment in public and that it was a Hipaa violation,” Ms. Gross recalled.

■ In 2012, Ericka Gray repeatedly phoned the emergency room at York Hospital in York, Pa., where her 85-year-old mother had gone after days of back pain, to alert the staff to her medical history. 

“They refused to take the information, citing Hipaa,” said Ms. Gray, who was in Chicago on a business trip.

“I’m not trying to get any information. I’m trying to give you information,” Ms. Gray told them, adding that because her mother’s memory was impaired, she couldn’t supply the crucial facts, like medication allergies.

By the time Ms. Gray found a nurse willing to listen, hours later, her mother had already been prescribed a drug she was allergic to. Fortunately, the staff hadn’t administered it yet.

Each scenario, attorneys say, involves a misinterpretation of the privacy rules created under the Health Insurance Portability and Accountability Act. “It’s become an all-purpose excuse for things people don’t want to talk about,” said Carol Levine, director of the United Hospital Fund’s Families and Health Care Project, which has published a Hipaa guide for family caregivers.

Intended to keep personal health information private, the law does not prohibit health care providers from sharing information with family, friends or caregivers unless the patient specifically objects. Even if she is not present or is incapacitated, providers may use “professional judgment” to disclose pertinent information to a relative or friend if it’s “in the best interests of the individual.”

Hipaa applies only to health care providers, health insurers, clearinghouses that manage and store health data, and their business associates. Yet when I last wrote about this topic, a California reader commented that she’d heard a minister explain that the names of ailing parishioners could no longer appear in the church bulletin because of Hipaa.

Wrong. Neither a church nor a distraught spouse is a “covered entity” under the law.

Last month, Representative Doris Matsui, Democrat of California and co-chairwoman of the Democratic Caucus Seniors Task Force, who has heard similar complaints from constituents, introduced legislation to clarify who can divulge what and under what circumstances. The proposed bill would require the Department of Health and Human Services, which last year issued new Hipaa “guidance,” to make that statement part of its regulations and to create model training programs for providers and administrators, patients and families.

“A lot of times it’s just misunderstanding what is and isn’t allowed under Hipaa,” Representative Matsui said in an interview.

So, what is and isn’t?

Family members can provide information, as Ms. Gray attempted to do. “How does keeping information confidential stop you from listening to someone?” said Eric Carlson, the directing attorney for Justice in Aging, a legal advocacy group in California. “There’s no Hipaa privacy consideration there.”  (Continue Reading)

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Hipaa’s Use as Code of Silence Often Misinterprets the Law