PATIENT PRIVACY RIGHTS: GENERAL GUIDELINES FOR HOSPITALS AND THE MEDIA

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2 PATIENT PRIVACY RIGHTS: GENERAL GUIDELINES FOR HOSPITALS AND THE MEDIA The Michigan Health & Hospital Association (MHA) Media Guide is designed to assist hospital administrators, nurses, physicians and the media with the communication of facts and data about patients. It also provides reporters with general information regarding hospitals legal and ethical responsibilities to patients in reporting admission, condition and other patient data. This guide does not constitute legal advice, and anyone seeking answers to specific legal questions should consult an attorney. The Privacy Rule of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its subsequent amendments govern healthcare providers policies regarding the privacy and security of personal healthcare information. The HIPAA Privacy Rule guides how healthcare organizations handle all facets of information management and sets minimum standards that hospitals and other healthcare providers must follow when releasing patient information. In cases where a hospital s policies or other state and federal laws establish stricter guidelines, the more restrictive policy takes precedence. For more information about this publication or questions about the content contained in this guide, contact the MHA Communications division at (517) Last updated August 2014 TABLE OF CONTENTS About the MHA...3 MHA Media Policy...3 The Rights of Patients...4 Other State and Federal Laws...4 Release of Patient Information...5 Patient Condition...5 Rights of the Media...6 Penalties for HIPAA Violations...6 Gaining Access to Hospitals & Patients...6 Frequently Asked Questions MHA Hospital Media Guide

3 ABOUT THE MHA The MHA represents all community hospitals in the state and maintains a strong tradition of successfully advocating in Michigan and Washington, DC, on behalf of healthcare providers and the communities and patients they serve. The MHA is a nationally recognized leader on initiatives that protect and promote quality, cost-effective and accessible healthcare. The association focuses on ensuring patient access, improving the quality of care delivered, pursuing community health improvement, protecting mission-driven funding, and promoting and providing best information. MHA MEDIA POLICY Media calls to the MHA should be directed to the MHA Communications division at (517) As a statewide association, the MHA can typically provide: Comment on issues generally affecting hospitals or patients Anecdotal or historical background General trend information (if applicable) Comment on reports/studies that address healthcare As a statewide organization, the MHA is unable to provide: Comment on individual hospital business decisions Hospital-specific data MHA Hospital Media Guide 3

4 THE RIGHTS OF PATIENTS Hospitals and their employees and volunteers have legal and ethical responsibilities to preserve patient confidentiality. Patients have specific legal rights to privacy as governed by several state and federal laws. According to standards from The Joint Commission (an accreditation and certification body for U.S. healthcare organizations and programs), related patient rights include: Respect and Dignity the patient has the right to considerate, respectful care at all times and under all circumstances, with recognition of his/her personal dignity. Privacy and Confidentiality the patient has the right, within the law, to personal and informational privacy, as manifested by the following rights: To refuse to talk with or see anyone not officially connected with the hospital, including visitors, or persons officially connected with the hospital but not directly involved in his/her care To expect that any discussion or consultation involving his/her care will be conducted discreetly and that individuals not directly involved in his/her care will not be present without his/her permission To have his/her medical record read only by individuals directly involved in his/her treatment (or in the monitoring of its quality) and by other individuals only after his/her written authorization (or that of his/her legally authorized representative) is provided To expect all communications and other records pertaining to his/her care, including the source of payment, to be treated as confidential In addition, many Michigan hospitals have individual policies governing patient rights and responsibilities, which include confidentiality issues. This information is available by contacting the hospital s public relations department. OTHER PERTINENT FEDERAL AND STATE LAWS In addition to the HIPAA Privacy Rule, federal law prohibits hospitals from releasing any information regarding a patient being treated for alcohol or substance abuse (the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970; the Drug Abuse Office and Treatment Act of 1972; and 42 C.F.R. Part 2). There are also state laws that address the privacy of health information with regard to certain conditions, such as HIV and mental health. 4 MHA Hospital Media Guide

5 RELEASE OF PATIENT INFORMATION HIPAA privacy regulations allow the release of limited patient information when someone specifically asks about a patient by name. This information is usually placed in a hospital directory and includes the following information: Patient name Patient location in the facility Patient condition, described in general terms (see Patient Condition below) that do not communicate specific information about the individual Patient religious affiliation (may not be released to anyone but clergy members who may be given this information even if they do not have the patient s name) Patients must be informed about the hospital directory and given the opportunity to limit information or opt out of it entirely. If a patient is unable to communicate, directory information can be released only if the use or disclosure is consistent with any preference the patient expressed in the past, and the disclosure is in the best interest of the patient (in the professional judgment of the medical services provider). PATIENT CONDITION Only a physician can determine a patient s prognosis. The following terms are generally used to describe a patient s condition*: Undetermined patient currently being evaluated Good vital signs are stable and within normal limits; patient is conscious and comfortable; indicators are excellent Fair vital signs are stable and within normal limits; patient is conscious, but may be uncomfortable; indicators are favorable Serious vital signs may be unstable and not within normal limits; patient is acutely ill; indicators are questionable Critical vital signs are unstable and not within normal limits; patient may be unconscious; indicators are unfavorable Treated and released received treatment, but no longer being treated at the facility Treated and transferred received treatment; transferred to a different facility With prior, written consent from the patient or legal representative, a more detailed condition statement may be drafted and approved for use by the hospital. * According to the American Hospital Association, the term stable should not be used as a condition, nor should it be used in combination with other conditions that, by definition, often indicate a patient is unstable. Note: A patient s death is considered protected health information under the HIPAA Privacy Rule and may only be released for patients who have not opted out of the hospital directory. Before releasing information, hospitals are advised to notify the next of kin or legal guardian (or make a reasonable attempt to do so). Information regarding the cause of death must come from the patient s physician and be approved by a legal representative of the deceased. When the county coroner is involved in determining the cause of death, questions should be referred to the coroner s office. The coroner s office may also have information about which funeral home is handling arrangements for the deceased. MHA Hospital Media Guide 5

6 RIGHTS OF THE MEDIA Under the HIPAA Privacy Rule, the media have the same rights as anyone else to information contained in the hospital directory as long as the patient has not limited or opted out of having that information made available. For example, knowing the name of a patient involved in an accident or a crime does not give reporters any additional rights with respect to confirming the patient s treatment, admission or other patient-related information. However, the HIPAA Privacy Rule only applies to healthcare providers, including hospitals, clinics, other hospital and healthcare employees whether or not they are involved in direct patient care, physicians, and emergency medical or ambulance personnel. Fire, police and other officials who may be at the scene of an accident or crime are not governed by HIPAA regulations and may be able to release additional information. Patients, family members and other nonhealthcare providers are also not governed by the HIPAA Privacy Rule and are free to provide their own information. PENALTIES FOR HIPAA VIOLATIONS Federal fines up to $50,000 and/or imprisonment for up to one year for criminal offenses Federal fines up to $100,000 and/or imprisonment for up to five years for disclosure under false pretenses Federal fines up to $250,000 and/or imprisonment for up to 10 years for offenses committed with the intent to sell, transfer or use patient information for commercial advantage, personal gain or malicious harm GAINING ACCESS TO HOSPITALS & PATIENTS The hospital spokesperson is familiar with media requests and is the best person to arrange interviews and provide patient information when appropriate. Calls made to others in the organization will be routed to the official spokesperson. If planning to visit a hospital, the media must contact the hospital spokesperson for access assistance prior to their visit. Hospitals require a hospital representative to accompany reporters at all times during site visits, and it is not possible to grant open access to some areas of the hospitals due to laws and regulations. Areas most likely to fall into the restricted category include operating rooms, intensive care units, labor and delivery units, emergency departments, psychiatric departments, nurseries and substance abuse units. At times, circumstances may necessitate other areas being designated as off-limits. Written permission from the patient or patient s representative is needed to obtain photos or interviews. If the patient is a minor, permission must be obtained from a parent or legal guardian. Consent forms are available through the hospital spokesperson. Hospital personnel and physicians with hospital admitting privileges may deny the media access to a patient if the presence of photographers or reporters would aggravate the patient s condition or interfere with appropriate clinical care. 6 MHA Hospital Media Guide

7 FREQUENTLY ASKED QUESTIONS Do reporters have the right to obtain information regarding a hospitalized patient? If the patient has not restricted the hospital from releasing hospital directory information to the media and has been informed that such information is routinely released to the media, then the hospital may give the directory information (absent religious affiliation) to reporters inquiring about the patient by name. How should hospitals handle requests from news reporters regarding admissions, discharges, births and deaths? This information should not be released to reporters except as allowed in directory information as provided by the HIPAA Privacy Rule. If a hospital is obligated by statute to report certain information to a governmental agency, is the hospital then allowed to release that information to reporters? No. There are numerous federal and state laws requiring reporting of child abuse, gunshot wounds, etc. A hospital s obligation to report certain confidential information to a governmental agency does not mean that information can be made available to the media. The hospital may refer reporters to the public entity that receives such reports, such as the police, fire or health department. The public entity will be guided by the applicable statute as to whether it can release any or all of the information received. Do HIPAA patient privacy rights extend to covered entities use of social media? Yes. Covered entities, such as hospitals, physicians and other healthcare personnel, may not make any unauthorized disclosure of protected health information, including via social media sites such as Facebook, Twitter, etc. Due to the increasing use of social media among hospital employees, it is in a hospital s best interest to regularly monitor the organization s social media sites and adopt employee social media policies to prevent inadvertent violations. In addition, hospitals should immediately remove (never edit) and address social media content that discloses protected health information. Hospitals should consult with their legal counsel to make sure their social media policies comply with current HIPAA regulations. Patients and their friends and family members, if not acting as a representative of a healthcare provider, healthcare plan or healthcare clearinghouse, are not covered entities. Therefore, posting protected health information about oneself or a family member/friend on social media sites is not a HIPAA violation. If a patient arrives unconscious or is incompetent, can the hospital create directory information on that patient and release it to reporters? This practice requires discretion. If a patient is not able to opt out of listing directory information due to condition or emergency treatment, HIPAA regulations allow hospitals to disclose some or all of the allowed directory information if such use/disclosure is consistent with the patient s prior expressed preference with the facility and if the medical care provider determines such use/disclosure is considered in the patient s best interest. In these cases, the patient should be informed of the use/disclosure as soon as it is practical to do so. MHA Hospital Media Guide 7

8 Healthcare facilities should consider the following when deciding whether to include some or all of the patient information in the directory: Whether disclosing that an individual is in the facility could reasonably cause harm or danger to the individual (e.g., if it appeared that an unconscious patient had been abused and disclosing the information could give the attacker sufficient information to seek out the person and repeat the abuse) Whether disclosing a patient s location within a facility implicitly provides information about the patient s specific medical condition (e.g., whether a patient s room number reveals that he/she is in a psychiatric ward) Whether it is necessary or appropriate to give information about a patient s status to family or friends (e.g., if giving information to a family member about an unconscious patient could help a physician administer appropriate medications) Whether an individual had expressed a preference not to be included in the directory prior to becoming incapacitated If a reporter has a patient s name and is calling to confirm that the patient has been treated or admitted, or is asking for other information regarding the patient, may the hospital confirm the identity or respond to the specific questions? The rights of the reporter in this scenario are limited to the information contained in the hospital directory as long as the patient has not limited or opted out of making that information available. If a reporter cannot provide a patient s first and last name, the hospital cannot provide any information on that patient, even if the patient approved being included in the hospital directory. For example, if a parent and child are both admitted to the hospital, but the parent and child have different last names, the reporter must provide the correct first and last name of each individual. Only then can the hospital supply the information requested to the extent that it is available in the hospital directory. For more information about this publication or questions about the content contained in this guide, contact the MHA Communications division at (517) University Park Drive Okemos, MI

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