Very Important Article In the Washington Post About HIPPA Myths

When you are a senior, sometimes it seems, rightly or wrongly, that your life is ruled by HIPPA.

So this article in the Washington Post, written by Charles G. Kels, who is a senior attorney at the American Medical Association, is particularly appropriate.

The article takes on and debunks myths of HIPPA, myths that we will probably all remember having been told to us when someone did not want to do something.  The first myth is by far the most important for most of us:

Myth #1.  HIPAA prohibits communicating with patients’ loved ones

The key language from the article is as follows:

.  .  .  .  In most cases, the privacy regulation permits doctors and nurses to communicate with a patient’s family, friends or caretakers. The rules were crafted to account for the realities of health care, including the integral role often played by those closest to the patient.

As the former head of HIPAA enforcement told Congress, “HIPAA is meant to be a valve, not a blockage.” When the patient is present and clearheaded, the law allows hospitals to share relevant information with loved ones so long as the patient does not protest. This can be accomplished through the patient’s agreement or acquiescence, or based on a doctor’s professional judgment that the patient does not object. If a person accompanies the patient to an appointment, for example, doctors can reasonably infer that discussing the patient’s treatment in front of that individual is appropriate.

When the patient is unavailable or incapacitated, doctors can also exercise professional judgment to determine whether disclosure is in the patient’s best interests. A clear example is when the patient is unconscious, but this provision can also apply if the patient is suffering from temporary psychosis and lacks the ability to make health-care decisions.

Still, studies have shown that confusion and fear over privacy laws often lead hospitals to unnecessarily withhold information and reflexively cite HIPAA as justification — an approach that can make families feel locked out of care.

But overall, HIPAA affords doctors significant flexibility to communicate with patients’ loved ones, whether about routine or time-sensitive matters. The only time the law truly forecloses the sharing of such information is when the patient is present, lucid and tells doctors not to — and even then, patients’ wishes can be overridden in the event that they pose a serious and imminent threat to health or safety. (bold added.)

So, as a general matter, push back when you are told information can not be shared, ask for the relevant regulation and whether the refuser has read the regulation (very unlikely), and then go up through the power chain.  Eventually you will get to someone who has or will read ithe reg and almost definitely do what you want.  Otherwise complain to HHS.  It is just as much a violation to refuse to provide information to which you are entitled, particularly as a patient, as it is to share it improperly. (Example here.)

The most relevant regs are here at 45 CFR 164.510.  They are actually quite lucid.