Best Interest Sharing of a Resident’s Medical Information

When the phone rang at 4 a.m. Pacific Standard Time and the caller I.D. read Briarcliff Caring and Rehabilitation Center, the woman picked up the phone and tentatively said, “Hello.” The person on the other end identified herself as the Director of Nursing (DON) at the facility and proceeded to inform the woman that her brother was now a resident in the facility and had asked them to call his sister and let her know where he was.

Obviously alarmed, the woman began to ask questions about why her brother is there.However, all the DON would tell her is that her brother just wanted her to know where he was and that he expressly asked the facility not to disclose any other details about the reason he was in an Atlanta, Georgia nursing home.

“Is my brother dying?” “Do I need to get on a plane and come there?” “You have to tell me more, I’m his only family! Don’t I have a right to know what’s wrong with him?”

The DON responded, “All I can tell you is that your brother is now being cared for at this facility, and he wanted you to be aware that he was here.”

An hour or so later, a crisis arose when the resident was found unconscious with a syringe in his hand, and it appeared that he overdosed (again) on an opioid. Not long after that, the resident’s sister called the facility and asked to speak with her brother. The receptionist called the DON to the phone and told her the resident’s sister was on the line.

Just how much can the DON tell the sister at this point about the resident’s medical condition? Does the fact that the resident had listed his sister as his contact person, but had specifically requested that she not be provided any information about his medical condition,prevent the DON from telling the sister that her brother has overdosed for a second time and is in serious condition?

This scenario could be applicable to any number of situations in a nursing home where a resident who previously had the capacity to make his own decisions regarding the sharing of his medical information is suddenly mentally incapacitated. The change may be short-term, long-term or permanent.

The Answer Lies with the Health Insurance Portability and Accountability Act (HIPAA) and the State’s Privacy Laws

The national attention and urging by the President to find solutions to the opioid crisis that he has “declared a nationwide public health emergency,” makes this a top priority for the U.S. Department of Health and Human Services (HHS)Office for Civil Rights (OCR). In response to this, Lori J. Strauss, RN, MSA and Chief Compliance Officer at Stony Brook Medicine, discussed in the January 1, 2018, Journal of Health Care Compliance, Privacy article some things that should be evaluated regarding the disclosure of private healthcare information with “family, friends and others.”

The OCR has provided new guidelines for sharing protected health information (PHI)in situations where the patient may be incapacitated when it comes to making decisions.Also, the OCR wants to encourage, and help concerned family members, friends and legal counsel have access to information they might need in order to intervene and help the patient without violating the Health Insurance Portability and Accountability Act (HIPAA) privacy rule.

It should be noted that “other state or federal privacy law or medical ethics rules that are more protective of patient privacy” are not replaced by HIPAA rules.

“HIPAA regulations allow health professionals to share health information with a patient’s loved ones in emergency or dangerous situations – but misunderstandings to the contrary persist and create obstacles to family support that is crucial to the proper care and treatment of people experiencing a crisis, such as an opioid overdose.”

HIPAA allows health care professionals to disclose some health information without a patient’s permission under certain circumstances when they are in the patient’s best interest and include the following:

A patient is incapacitated or unconscious and the information is shared in direct relation to the family or friend’s involvement with the patient’s health care or payment for care.
Sharing the information with persons who can “prevent or lessen a serious and imminent threat to a patient’s health or safety.”

To maintain an individual’s right to autonomy, HIPAA generally limits the sharing of PHI with family, friends and others; and,providers must give the patient with an opportunity to agree or object tos haring his or her PHI with family, friends and others, except as previously indicated regarding the patient’s best interest. HIPAA expects that a patient’s incapacity to make his or her own decisions is often temporary and situational.If the patient regains the ability to make decisions, the patient must be consulted about any additional sharing of PHI.

HIPAA generally recognizes and allows providing a patient’s PHI with his or her personal representatives. “Personal representatives are persons who have healthcare decision making authority for the patient under state law, i.e.,parents/guardian, written directive, health care power of attorney, or legally appointed guardian.

Nursing Home Responsibility

The nursing home must:

ensure that a resident has privacy in accommodations, medical treatment, personal care, visits and meetings of family and resident groups;
ensure that a resident’s mail is delivered to them unopened and that it is sent out unopened;
provide a resident,upon their request, with stationery, postage and writing materials (to be paid for by the resident) and assist the resident in reading or writing mail if the resident requests it;
provide, at the resident’s request, access to a telephone (and assist the resident in its use)that is private and, if necessary, wheelchair accessible and equipped for the hearing or visually impaired;
instruct all staff and ensure that all staff adhere to its instructions to fully honor and maintain a resident’s right to approve or refuse to approve release of their personal and clinical records to any outside individual;
instruct all staff involved in a resident’s care to maintain their personal and clinical record in the strictest privacy. Staff must restrict discussion of a resident’s medical, mental and psychosocial problems to appropriate forums only, for example, at facility interdisciplinary care team conferences or unit conferences. Staff must not discuss or otherwise divulge a resident’s medical mental and psychosocial problems with any other resident, even though discussion may be initiated by the other resident.

Resident Rights

Residents have the right to:

privacy and confidentiality of their personal and clinical records reflecting accommodations, medical treatment, written and telephone communications,personal care, associations and communications with people of their choice,visits and meetings of family and resident groups;
private meeting space for themselves and their family;
approve or refuse the release of personal and clinical records to any individual outside the facility except when they are transferred to another healthcare facility or when record release is required by law or health insurance company contract;
privacy in written communications, including the right to send and receive unopened mail promptly;
access to stationery, postage and writing implements (at the resident’s expense);
regular access to the use of a telephone where calls can be made without being overheard and which is wheelchair accessible and usable by residents who are visually and hearing impaired.

More information can be found at: https://www.hhs.gov/hipaa

An example of a state’s provisions regarding privacy and confidentiality is available from the New York Department of Health at the following link: https://www.health.ny.gov/facilities/nursing/rights/privacy_and_confidentiality.htm