Parents, children, siblings, and other relatives of unconscious or incapacitated patients are running into more and more brick walls when they ask for information or try to influence patients’ treatment decisions. They are being told that federal law prohibits doctors and nurses to provide any information unless there is a power of attorney or guardianship. Since the patient is unconscious or unable to make decisions, a power of attorney is out of the question and initiating guardianship may take weeks or months. Federal law does not prohibit the release of information to concerned relatives and friends as long as it is in the patient’s best interest.
The Health Insurance Portability and Accountability Act (HIPAA) includes heavy penalties for unauthorized releases of “Protected Health Information.” However, the law permits sharing information under certain circumstances.
The Office of Civil Rights of U.S. Department of Health and Human Services posts Frequently Asked Questions (FAQs) on its website. One of the FAQs is, “If the patient is not present or is incapacitated, may a health care provider still share the patient’s health information with family, friends, or others involved in the patient’s care or payment for care?”
The answer provided by the government is this:
If the patient is not present or is incapacitated, a health care provider may share the patient’s information with family, friends, or others as long as the health care provider determines, based on professional judgment, that it is in the best interest of the patient.
The answer goes on to state that the health care provider is not required to share the information, but why would they refuse if it is in the patient’s best interest to do so?There are penalties for unauthorized release of information, but health care providers are only penalized when they act unreasonably. A provider would be penalized for a massive loss or release of protected health information because a laptop or hard drive were allowed to fall into the wrong hands, or for illegally selling a database. A provider would never be penalized for talking to a family member or friend that the provider reasonably believes is concerned with the patient’s welfare. Refusal to talk under that circumstance would indicate bureaucratic paranoia, not a justifiable concern for the patient’s privacy.
A concerned family member or friend should not accept “HIPAA won’t let us speak to you.” Health care providers are permitted to talk to family members when the patient is unconscious or incapacitated. Ask to speak to the facility administrator and show him or her this article. If the facility administrator continues stonewalling, ask for the number of the facility’s general counsel or contact an attorney.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com ©2013 John B. Payne, Attorney