November 1, 2017

How much can providers tell a patient's family during an opioid crisis? HHS seeks to clarify the rules

Daily Briefing

    HHS' Office for Civil Rights on Friday released new guidance that clarifies a federal privacy rule that may prevent health care providers from notifying a patient's family about a drug overdose.

    Your top resources for combatting the opioid epidemic in one place

    The clarification, according to the Wall Street Journal, centers on a HIPAA rule that prohibits drug treatment centers from sharing information about an individual's treatment with outside medical providers, family, members, or others without the patient's explicit consent. While legal analysts have said the rule does not apply to EDs, most health care providers have opted against sharing such information even in emergency situations to avoid legal complications.

    HHS in the guidance said misunderstandings in the health care community can "create obstacles to family support that is crucial to the proper care and treatment of people experiencing a crisis situation, such as an opioid overdose."

    Guidance details

    In the guidance, HHS clarified that HIPAA regulations allow health care providers to share a patient's health information with the patient's family, friends, or legal representative when the patient is in "certain emergency or dangerous situations."

    The guidance explicitly states that health care professionals can disclose certain health information without a patient's consent when the disclosure is determined to:

    • Be in the best interest of a patient who is incapacitated or unconscious, such as during an opioid overdose; and
    • Prevent or lessen a serious and imminent threat to a patient's health or safety.

    According to the guidance, "If a patient regains the capacity to make health care decisions, the provider must offer the patient the opportunity to agree or object before any additional sharing of health information."

    Comments

    Industry stakeholders have long debated the federal privacy law and its implications for patients dealing with complications of substance misuse. Supporters of easing federal restrictions say doing so would allow providers to share critical information with family who could potentially help the patient, while opponents say the protections are necessary to ensure individuals with substance use disorders do not avoid needed care over fears that information will be turned over the law enforcement officials or employers.

    Roger Severino, the director of the HHS' Office for Civil Rights, said the "clarifying guidance will give medical professionals increased confidence in their ability to cooperate with friends and family members."

    Jessica Hulsey Nickel, president and CEO of the Addiction Policy Forum, said the clarifying guidance will allow families to help their relatives who have a substance misuse disorder, while still maintaining core privacy protections that allow individuals to receive substance misuse treatment. Nickel said, "This is a really thoughtful way to approach this without dissuading our patients from seeking care" (Hackman, Wall Street Journal, 10/27; Paavola, Becker's Hospital Review, 10/30; Muchmore, Healthcare Dive, 10/30; HHS release, 10/27). 

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