Privacy Officer's Roundtable

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  • 1.  Seeking Out Collateral Information

    Posted 3 days ago

    I really need some help with this scenario!  I appreciate any input you can provide!

     

    ·         Licensed social worker (LSW) is requested by Emergency Department physician to assess the mental health status of patient in crisis (no previous mental health issues)

    ·         During the assessment, LSW has a gut feeling that the patient isn't being forthcoming and cannot make determination whether or not to "pink slip" the patient (transfer to psychiatric facility for further evaluation).

    ·         LSW then seeks "collateral" information (information from a relative, spouse, family friend) to help her.

    ·         LSW contacts the patient's mother, however does not give the patient an opportunity to allow or object to the contact.

    ·         Patient's mother is tearful, begging the LSW to pink slip her son – she is certain that he will commit suicide if he isn't pink slipped.

    ·         LSW pink slips the patient and the patient is transferred to a psychiatric facility for further evaluation.

     

    Did the LSW commit a HIPAA violation?  My thoughts:

     

    ·         HIPAA doesn't prevent health care providers from listening to family members or other caregivers who may have concerns about the health and well-being of the patient, but contacting that family member and letting them know the patient is in the emergency department does go against HIPAA, unless certain criteria are present:

     

    #1 – patient is incapacitated or doesn't have the mental capacity to make a decision

    #2 – patient gives permission

    #3 – patient poses a serious, imminent threat to himself or others

     

    ·         If a provider truly believes that the patient poses a serious, imminent threat to himself or others, they can seek out collateral information from someone who is able to lessen that threat.  However, it is my belief that It shouldn't be standard operating procedure to collect collateral information on every patient a LSW assesses.  Also, reasons for seeking out collateral information should be thoroughly documented.

    ·         There are HIPAA provisions about mental health but the patient hasn't been diagnosed yet as having any mental health issues.   But if patients are in crisis, then can you say the patient does have mental health issues?

     

    From: https://www.hhs.gov/hipaa/for-professionals/faq/2089/health-care-provider-permitted-discuss-adult-patients-mental-health-information-patients.html

     

    Is a health care provider permitted to discuss an adult patient's mental health information with the patient's parents or other family members?

     

    In situations where the patient is given the opportunity and does not object, HIPAA allows the provider to share or discuss the patient's mental health information with family members or other persons involved in the patient's care or payment for care. For example, if the patient does not object:

     

    • A psychiatrist may discuss the drugs a patient needs to take with the patient's sister who is present with the patient at a mental health care appointment.

    • A therapist may give information to a patient's spouse about warning signs that may signal a developing emergency.

     

    BUT:

     

    • A nurse may not discuss a patient's mental health condition with the patient's brother after the patient has stated she does not want her family to know about her condition.

     

    In all cases, the health care provider may share or discuss only the information that the person involved needs to know about the patient's care or payment for care. See 45 CFR 164.510(b). Finally, it is important to remember that other applicable law (e.g., State confidentiality statutes) or professional ethics may impose stricter limitations on sharing personal health information, particularly where the information relates to a patient's mental health.

     

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  • 2.  RE: Seeking Out Collateral Information

    Posted 2 days ago
    It doesn't sound like the patient identified mom as being involved in his health care and it doesn't sound like she was present nor did the person have opportunity to object to talking with mom. So with that I would consider it a breach.  However, if the LSW did determine that the patient was a serious threat to self or others, it may be allowed as noted below.  And, again, check state law.

    The HIPAA Privacy Rule permits a covered entity to disclose PHI, including psychotherapy notes, when the covered entity has a good faith belief that the disclosure: (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is to a person(s) reasonably able to prevent or lessen the threat.  This may include, depending on the circumstances, disclosure to law enforcement, family members, the target of the threat, or others who the covered entity has a good faith belief can mitigate the threat.  The disclosure also must be consistent with applicable law and standards of ethical conduct.  See 45 CFR § 164.512(j)(1)(i). 

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    Diane Bennett
    QI/Compliance-Privacy Officer
    NorthCare Network
    Marquette,MI
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  • 3.  RE: Seeking Out Collateral Information

    Posted 2 days ago

    Thanks Diana!  I had the same perceptions.  I have also looked at state law (it's always so hard to find anything in Ohio's law – I wonder if it's just me?  LOL!).

    Cinda

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