With patients becoming ill or exposing others to COVID-19, your practice is going to be faced with more requests for Protected Health Information (PHI).
To comply with health department and local requests without facing HIPAA privacy fines, be sure to know your and your patients’ rights.
Here are your legal disclosure allowances form privacy expert and healthcare attorney, Daphne Kackloudis, JD.
HIPAA Updates Confirm Privacy Rights Still Apply
The U.S. Department of Health and Human Services (HHS) provided guidance to ensure that HIPAA covered entities and business associates are aware of the ways that patient information may be shared under the HIPAA Privacy Rule during this emergency. As a provider, always remember that protections of the Privacy Rule are not set aside during an emergency.
Patient Authorization Disclosure Not Required in Course of Treatment
Under the Privacy Rule, covered entities may disclose, without a patient’s authorization, protected health information about the patient as necessary to treat the patient or to treat a different patient. Treatment includes the coordination or management of health care and related services by one or more health care providers and others, consultation between providers, and the referral of patients for treatment.
Some Public Health Release Exempt from Patient Authorization Requirement
The Privacy Rule permits covered entities to disclose needed protected health information without individual authorization under the following circumstances:
- CDC/Health Department: To a public health authority, such as the CDC or a state or local health department, that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury or disability.
Definition: A “public health authority” is an agency or 27 authority of the United States government, a State, a territory, a political subdivision of a State or territory, or Indian tribe that is responsible for public health matters as part of its official mandate, as well as a person or entity acting under a grant of authority from, or under a contract with, a public health agency.
Example: A covered entity may disclose to the CDC protected health information on an ongoing basis as needed to report all prior and prospective cases of patients exposed to or suspected or confirmed to have COVID19.
- Foreign Government: At the direction of a public health authority, to a foreign government agency that is acting in collaboration with the public health authority.
- At-risk Persons: To persons at risk of contracting or spreading a disease or condition if other law, such as state law, authorizes the covered entity to notify such persons as necessary to prevent or control the spread of the disease or otherwise to carry out public health interventions or investigations.
- Relief Organizations: With disaster relief organizations that, like the American Red Cross, are authorized by law or by their charters to assist in disaster relief efforts, for the purpose of coordinating the notification of family members or other persons involved in the patient’s care, of the patient’s location, general condition, or death. It is unnecessary to obtain a patient’s permission to share the information in this situation if doing so would interfere with the organization’s ability to respond to the emergency.
Verbal Authorization Best If Possible Before PHI Release to Family
Yes. A covered entity may share protected health information with a patient’s family members, relatives, friends, or other persons identified by the patient as involved in the patient’s care. A covered entity also may share information about a patient as necessary to identify, locate, and notify family members, guardians, or anyone else responsible for the patient’s care, of the patient’s location, general condition, or death. This may include, where necessary to notify family members and others, the police, the press, or the public at large.
The covered entity should get verbal permission from individuals or otherwise be able to reasonably infer that the patient does not object, when possible; if the individual is incapacitated or not available, covered entities may share information for these purposes if, in their professional judgment, doing so is in the patient’s best interest. For patients who are unconscious or incapacitated, a health care provider may share relevant information about the patient with family, friends, or others involved in the patient’s care or payment for care, if the health care provider determines, based on professional judgment, that doing so is in the best interests of the patient.
Minimum Needed Disclosure Standard Applies to COVID-19
For most disclosures, a covered entity must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose (this standard does not apply to disclosures to health care providers for treatment purposes). Covered entities may rely on representations from a public health authority or other public official that the requested information is the minimum necessary for the purpose, when that reliance is reasonable under the circumstances.
Example: A covered entity may rely on representations from the CDC that the protected health information requested by the CDC about all patients exposed to or suspected or confirmed to have COVID-19 is the minimum necessary for the public health purpose. In addition, internally, covered entities should continue to apply their role-based access policies to limit access to protected health information to only those workforce members who need it to carry out their duties.
HIPAA & COVID-19 Online Training and Resources