Misreading HIPAA privacy law blocks mental health discussions

A federal official at a congressional hearing says the statute provides opportunities for doctors to discuss mental health issues with a patient's family and friends.

By — Posted May 3, 2013

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In refusing to discuss mentally ill patients' conditions with family members or caretakers, physicians could be misinterpreting federal privacy rules, witnesses told a House panel April 25.

There's a concern that the Health Insurance Portability and Accountability Act is compromising patient care and public safety by interfering with these discussions, said Rep. Tim Murphy (R, Pa.), who chairs the House Energy and Commerce oversight and investigations subcommittee. The panel has been examining the nation's mental health system following the Sandy Hook Elementary School shootings in December 2012.

Witnesses at the April 25 hearing told stories that they said validate this concern. Gregg Wolfe, whose 21-year-old son, Justin, died from a heroin overdose in 2012, said he and his wife could have done more to help their son if health care professionals had given them access to important information about his treatment.

Family members often are in the best position to coordinate care with health professionals, yet physicians and nurses have been hesitant to talk about a patient's illness due to fears about violating the HIPAA privacy statute, Murphy said.

They may not be interpreting these rules correctly, said Mark Rothstein. He's the director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine who presented his individual views at the hearing. He said HIPAA is essential to patient care and public health and safety, yet “is a very misunderstood regulation. It's misunderstood by the public, it's misunderstood by providers.”

Best interests of the patient

Leon Rodriguez, director of the Dept. of Health and Human Services Office of Civil Rights, clarified that “HIPAA is meant to be a valve, not a blockage.” Unless a patient objects, HIPAA provides a clear path to communicate with family and friends, he said. Even if the patient isn't present or is incapacitated, health care professionals still could share information with friends and family members, if the physician or professional determines that this would be in the patient's best interest.

In instances where patients may pose imminent and serious threats to themselves or others, health care professionals may invoke their ethical “duty to warn” by alerting family members, enforcement officials or perhaps even the targets of those threats, Rodriguez said. He added that “we have never taken an enforcement action because a provider in the best interest of the patient disclosed information to a third party.” Only 12 of 80,000 cases involving potential HIPAA violations have resulted in penalties.

Rodriguez noted that in January, his office sent a letter to health care professionals to make them aware of these disclosure abilities under the HIPAA law.

The American Medical Association, in a series of “frequently asked questions” on HIPAA, said the privacy rule allows doctors to share patient information with family members or friends “so long as the information is limited to information directly relevant to that person's involvement in the patient's care. The physician should not share more information than the person needs to assist with the patient's care” (link).

Testifying before the House panel, Carol Levine, director of the United Hospital Fund's Families and Health Care Project, said doctors might be using HIPAA's privacy restrictions as a convenient excuse not to talk to families. “If families are kept at arm's length, the easier it is to avoid difficult conversations about prognosis or treatment options,” she said.

Richard Martini, MD, professor of pediatrics and psychiatry at the University of Utah's School of Medicine, countered that the vast majority of physicians he works with do want to share information with families. The way he sees it, “any recommendation I make as a clinician is going to be much more successful if I involve the family's input.”

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