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HHS Issues Patient Privacy Guidance for Crisis Situations

November 02, 2017

The U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights released new guidance on when and how health care providers can share a patient’s health information with his or her family members, friends, and legal personal representatives when that patient may be in crisis and incapacitated, such as during an opioid overdose.

Misunderstandings about privacy rules contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) can create obstacles to family support that is crucial to the proper care and treatment of people experiencing a crisis situation. In the midst of an opioid crisis, family members and caregivers are relying on health care providers to share crucial health information such as opioid overdose, to encourage proper treatment and support during recovery, without violating HIPAA privacy regulations.

This document explains how health care providers have the ability to share health information with patients’ family members during certain crisis situations without violating HIPAA privacy regulations, such as:

  • Patient without decision-making capabilities—A patient who is incapacitated or unconscious, a health care provider may share health information that is directly related to the patient’s health care or payment of care with individuals that are involved in the patient care. Health care providers also may share health information if it determined that doing so will prevent or lessen serious threat to the patient’s safety and health.
  • Patient with decision-making capabilities—A health care provider must give a patient the opportunity to agree or object to sharing health information with family, friends, and others involved in the individual’s care or payment for care. The provider is not permitted to share health information about patients who currently have the capacity to make their own health care decisions, and object to sharing the information, unless there is a serious and imminent threat of harm to health.
  • Patient’s legal representative—HIPAA allows for a patient’s legal representative to access to a patient’s complete medical record. Under state law, a legal representative has been appointed with health care decision making authority for that patient.

This HHS guidance follows the recent HHS declaration announcing the opioid crisis as a public health emergency.

HAP continues to monitor and share information about state and national efforts to fight substance use disorder and the opioid epidemic, including legislative and regulatory policy developments and treatment strategies.

For more information, contact Kate Routledge, MJ, HAP’s senior director of compliance support.

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