Monday, December 15, 2008
By Dan Schulte, J.D.
MDA Legal Counsel
From the December 2008 issue of the Journal
Question: I frequently have patients in the office accompanied by family members or other caregivers. Often, these people ask questions regarding the patient’s care and treatment. What am I legally able to share with these individuals?
Answer: This continues to be a very frequently asked question. Recently, the U.S. Department of Health and Human Services Office for Civil Rights posted a guide clarifying when health care providers may discuss a patient’s health information (with the patient’s family members, friends or others identified by the patient as involved in the patient’s care) without violating the HIPAA Privacy Rule. These guides provide welcome clarification that even though HIPAA’s Privacy Rule requires dentists and other health care providers to protect patient privacy, disclosures are permitted in most circumstances in order to properly communicate with the patient’s family, friends or others involved in their care.
The following questions and answers are based on the information provided in the guide. A full copy of the guide is available at www.hhs.gov/ocr/hipaa.
If the patient is present and is able to make his/her own health care decisions, may I discuss the patient’s treatment with his/her family, a friend or others involved in the patient’s care?
The guide states that you may share information with a family member, friend or other person even when the patient is present and has the capacity to make health care decisions if the patient has agreed or, when given the opportunity, does not object. The guide goes on to state that you may share information with a family member, friend or other person if, using your professional judgment, you decide that the patient does not object.
In any case, you may only share information that the recipient involved needs to know about the patient’s care. Also remember that if at any time the patient directs you not to discuss his/her condition with anyone you are prohibited from doing so.
If the patient is not present or is incapacitated may I share his/ her information with family, friends or others involved in the patient’s care?
You may if you have determined, based on your professional judgment, that it is in the best interest of the patient. The guide points out that when the person seeking the patient’s information is someone other than a person you know to be the patient’s friend or family membe,r you must be reasonably sure that the patient desires this person to be involved in his or her care. Again, the information disclosed must be limited to only the specific information the recipient needs to know about the patient’s care.
May I discuss a patient’s information over the phone with the patient’s family, friends or others involved in the patient’s care?
Yes, but only when you would be allowed (as discussed above) to share the patient’s health information with the person face-to-face.
If the patient’s family member, friend or other person involved in his or her care calls the office seeking information regarding the patient’s condition, am I required to obtain proof of the person’s identity prior to making a disclosure?
If the caller identifies himself or herself and states that he/she is a family member, friend or caregiver of the patient, HIPAA does not require that you obtain proof of his or her identity. If not initially disclosed by the caller, you must ask for a name and the person’s relationship or other connection to your patient. It would be advisable for you to establish rules in the office for verifying who is on the phone and documenting how they identified themselves and their connection to the patient.