Texas Patients, Families May Be Unwitting Victims Of Federal Privacy Laws

While the Health Insurance Portability and Accountability Act, a federal law enacted in 1996, is primarily designed to allow Americans, including those in Texas cities of Dallas, Austin and Houston, the right to take health insurance coverage with them, some provisions of the law that protect the confidentiality of information are causing confusion.

Observers are seeing evidence of the issue arise in cases where relatives are being denied access to medical charts, the health care providers citing provisions of the law--commonly known as HIPAA.
The problem, say experts in the field, appears to be confusion as to the intent and actual wording of HIPAA privacy rules, which were introduced in 2003.

Some healthcare providers are said to be applying the regulations in a way that may be seen to be overzealous, even arbitrary in nature.

On the other hand, medical professionals and privacy experts extol the legislation, saying it has helped to make confidentiality of health information a priority, something they argue is important as the nation moves toward a system that is more and more focused on computerized medical records.

At the same time, ensuring electronic privacy has produced what some say is a tangle of regulations--the result being confusion as to what is allowed under HIPAA and what is not.

The confusion may itself lead to more government involvement, with Massachusetts Senator Edward M. Kennedy, a sponsor of the original legislation, proposing an office within the Department of Health and Human Services (HHS) that would serve to interpret medical privacy rules.

The extent of the problems related to HIPAA are largely unknown since the only complaints investigated relate to patients being denied access to their own medical information, which is a violation of the law.

Officials from HHS say that health care providers, either innocently or purposefully, will cite HIPAA as an excuse for not making permitted disclosures. Some examples of HIPAA misinterpretations have included:
--The cancellation of birthday parties in nursing homes for fear that revealing a resident's date of birth could be a violation.

--Patients being assigned "code names" in doctor office waiting rooms so they could be summoned without identification.
--The refusal of nurses in an emergency room to telephone parents of ailing students for fear of passing out confidential information.
--Delays in creating immunization registries for children.

One key word in the legislation that seems to invoke confusion is "may"-- the law saying medical staff "may" disclose but not requiring that they do so.

Medical professionals on the side of commonsense in the world of HIPAA are distinguishing different categories of secrecy.

So-called "good faith nondisclosures" might include a nurse taking a phone call from someone claiming to be a member of the family. Not being able to verify the relationship might be a cause for refusing to give out medical information to that caller.

On the other hand, using HIPAA as an excuse for not taking time to gather records required by public health officials investigating a case of suspected child abuse might fall under the category of a "bad faith nondisclosure."

The fear by those in the medical field of being penalized for improper disclosures might seem to be unwarranted--especially considering there have been no penalties levied since the legislation was enacted.
In fact, according HHS officials, medical professionals are permitted to talk freely to family friends, as long as the patient does not object. Those discussions can be held without a signed authorization and it is not necessary to have the legal standing of a health care proxy or power of attorney. On the issue of investigation of crimes such as child abuse, HIPAA defers to state laws, which may require such disclosure. Health care workers may not reveal confidential information about a patient or medical case to reporters, but they can discuss general health issues.

Many decisions related to HIPAA issues are made by employees of health care providers who feel safer saying "no" than "yes"-- especially if the rules do not appear to be clear.

When the answer is "no, I can't tell you because of HIPAA," some consumers simply don't object.

Healthcare privacy is an issue that's not likely to go away anytime soon. At the same time, Americans have a deep concern for the ability to stay healthy.

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