HIPAA as a cover up.

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I am very proud to have participated in this informative, interactive training. It has already been very helpful to my work with patients in the hospital.

One of the things the training touched on was that HIPAA, the law that protects your privacy in regards to who you want your health information shared with, is often quoted as being the reason that your authorized representative cannot get answers to their questions when they are advocating for you. This week I had an experience that exemplified how this misuse of HIPAA can really hurt the patient.

My client, who was recently admitted to an assisted living facility from her home in another State and therefor did not have a signed NYS Health Proxy Form, was taken to the hospital after a fall. She did not want to go to the hospital, but her daughter was going with her, so we felt she should at least have it checked out. Before the daughter was asked anything about the patient’s health history, the hospital administered a shot of Haldol, an anti-psychotic. The daughter was shocked to see her mother in a catatonic state, especially since her mother’s diagnosis of Parkinson’s and prior hallucinations, which had been under control with medication, would have indicated that this type of drug should never have been administered.

The catatonic state lasted for weeks, with the doctors saying we should consider long term care placement in a nursing home. With advocacy from the daughter, who also happens to be an elder law attorney, and myself, we convinced the hospital physician to put in for a psychiatric evaluation. It was my feeling that the patient could benefit from a full discussion about medications that could balance her Parkinson’s medications with other medications for her confusion. The psychiatrist agreed that her confused state was much improved from the catatonic state she had been in upon being admitted. He suggested that we try other treatments quickly with the goal being to discharge the patient as soon as possible to normalize her surroundings. We left the hospital agreeing all around that this was the plan and even provided a commitment from a rehabilitation facility that they had a bed ready for the patient.

Two days later, thinking that the treatment had been underway and wondering when the patient would be transferred to the rehab facility, I received a call from the physician saying that he didn’t feel comfortable accepting the daughter and my verbal approval for the treatment and therefore, instead of proceeding as directed by the psychiatrist, he had gone to the legal department at the hospital. No treatment had been initiated. He now said that he would not proceed without speaking to the patient’s son, because since there was no Health Care Proxy Form he did not want to take my or the daughter’s approval to administer ADVIL, a commonly used over the counter medication for pain. This was ridiculous, first because the son had not been involved in the discussions with the doctors, and because the doctor had withheld beneficial treatment from the patient for some technicality which had already been approved by the daughter and in the presence of the psychiatrist and myself. This was especially egregious because the patient herself had been able to state her daughters full name and that I was the friend who was helping her.

We finally had to get the son on the phone to give his approval for his sister and I to make all necessary decisions for his mother. Not to mention that when we first wanted to talk to the doctor, he kept us waiting for two hours, and only came when we demanded to see the in-charge nurse who paged him, but taking direction from the training I had just completed, my next call would have been to the hospital administration to put in a complaint, or even a letter to the Department of Health.

Here is the section of the HIPAA law that talks about the problem, as shown on the US Dept of Health and Human Services https://www.hhs.gov/hipaa/for-professionals/faq/488/does-hipaa-permit-a-doctor-to-discuss-a-patients-health-status-with-the-patients-family-and-friends/index.html

The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient’s care or payment for health care. If the patient is present, or is otherwise available prior to the disclosure, and has the capacity to make health care decisions, the covered entity may discuss this information with the family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also share relevant information with the family and these other persons if it can reasonably infer, based on professional judgment, that the patient does not object. Under these circumstances, for example:

A doctor may give information about a patient’s mobility limitations to a friend driving the patient home from the hospital.
A hospital may discuss a patient’s payment options with her adult daughter.
A doctor may instruct a patient’s roommate about proper medicine dosage when she comes to pick up her friend from the hospital.
A physician may discuss a patient’s treatment with the patient in the presence of a friend when the patient brings the friend to a medical appointment and asks if the friend can come into the treatment room.

Even when the patient is not present or it is impracticable because of emergency circumstances or the patient’s incapacity for the covered entity to ask the patient about discussing her care or payment with a family member or other person, a covered entity may share this information with the person when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. See 45 CFR 164.510(b). Thus, for example:

A surgeon may, if consistent with such professional judgment, inform a patient’s spouse, who accompanied her husband to the emergency room, that the patient has suffered a heart attack and provide periodic updates on the patient’s progress and prognosis.
A doctor may, if consistent with such professional judgment, discuss an incapacitated patient’s condition with a family member over the phone.

In addition, the Privacy Rule expressly permits a covered entity to use professional judgment and experience with common practice to make reasonable inferences about the patient’s best interests in allowing another person to act on behalf of the patient to pick up a filled prescription, medical supplies, X-rays, or other similar forms of protected health information. For example, when a person comes to a pharmacy requesting to pick up a prescription on behalf of an individual he identifies by name, a pharmacist, based on professional judgment and experience with common practice, may allow the person to do so.

November 4, 2018 - Posted by GetHealthHelp | Uncategorized

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