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Confidentiality and HIPAA

By

Charles Sabatino

, JD, American Bar Association

Last full review/revision May 2021| Content last modified May 2021
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Traditionally, ethical health care has always included the need to keep patients’ medical information confidential. However, the Health Insurance Portability and Accountability Act (HIPAA—see www.hhs.gov/ocr/privacy/) has codified the responsibility of health care providers, health plans, health care clearinghouses, and their business associates who electronically transmit health and related information (eg, health records, enrollment, billing, eligibility verification). Collectively, these are covered entities under HIPAA. Key provisions of HIPAA are embodied in three rules (now contained in an omnibus rule): the Privacy, Security, and Breach Notification rules, all of which are intended to protect the privacy and security of individually identifiable health information, referred to as protected health information (PHI).

The Privacy Rule sets standards for the protection of PHI and gives patients important rights with respect to their health information. The Security Rule establishes safeguards that covered entities and their business associates must implement to protect the privacy, integrity, and security of electronic PHI. The Breach Notification Rule requires covered entities to notify affected individuals, the federal government, and in some cases, the media of a breach of unsecured PHI. The Office for Civil Rights in the US Department of Health and Human Services enforces these three rules and provides guidance on complying with the rules.

Key aspects of the Privacy Rule are elaborated below.

Access to medical records

Typically, patients or their authorized representatives should be able to see and obtain copies of their medical records and request corrections if they identify errors. For purposes of the Privacy Rule, an authorized "personal representative" of the patient is a guardian with authority over health decisions, a proxy appointed in a power of attorney for health care Durable power of attorney for health care Advance directives are legal documents that extend a person's control over health care decisions in the event that the person becomes incapacitated. They are called advance directives because... read more , or a family member or friend authorized to serve as a surrogate for health decisions under state law. Patients also have the right to give another person access to all or part of their medical records by a signed, written authorization.

Notice of privacy practices

Health care providers must provide a notice about their possible uses of personal medical information and about patient rights under HIPAA regulations.

Limits on use of personal medical information

HIPAA limits how health care providers may use PHI. The act does not restrict physicians, nurses, and other practitioners from sharing information needed to treat their patients. Disclosures to health information exchanges and public health agencies for public health purposes during events such as the COVID-19 pandemic are also permissible disclosures under guidelines of the Office for Civil Rights in the US Department of Health and Human Services. However, practitioners may use or share only the minimum amount of protected information needed for a particular purpose. In most situations, personal health information may not be used for purposes unrelated to health care. For example, a patient must sign a specific authorization before a health care provider can release medical information to a life insurer, a bank, a marketing firm, or another outside business for purposes unrelated to the patient’s current health care needs.

Marketing

Marketing is communication designed to encourage people to purchase a particular product or service. HIPAA requires that the patient’s specific authorization must be obtained before disclosing information for marketing purposes. Health care providers must disclose any payments that will be received as a result of marketing. However, health care providers can freely communicate with patients about treatment options, products, and other health-related services, including disease-management programs.

Confidential communications

Practitioners should take reasonable steps to ensure that their communications with the patient are confidential and in accord with patient preferences. For example, physician-patient medical discussions generally should be in private, or a patient might prefer that the physician call their office rather than home. Nonetheless, unless the patient objects, practitioners can share medical information with a patient’s immediate family members or someone known to be a close personal friend if the information relates to that person’s involvement with the patient’s care or payment for care and the information is limited to what is necessary to that person’s involvement. Practitioners are expected to exercise professional judgment.

An authorized personal representative Access to medical records Traditionally, ethical health care has always included the need to keep patients’ medical information confidential. However, the Health Insurance Portability and Accountability Act (HIPAA—see... read more of the patient should be treated the same as the patient with respect to access to information and participation in decision-making. Thus, the representative has the same access to information and may exercise the same rights regarding confidentiality of information. Nevertheless, practitioners may restrict information or access if there are reasonable concerns about domestic violence, abuse, or neglect by the representative.

Some communication cannot remain confidential. Health care practitioners are sometimes required by law to disclose certain information, usually because the condition may present a danger to other people. For example, certain infectious diseases (eg, COVID-19, HIV, syphilis, TB) must be reported to state or local public health agencies. Signs of child and, in many states, adult or elder abuse or neglect, typically must be reported to protective services. Conditions that might seriously impair a patient’s ability to drive, such as dementia or recent seizures, must be reported to the Department of Motor Vehicles in some states.

Complaints

Patients may file complaints about compliance with these privacy practices. Complaints can be made directly to the health care practitioner, the Office for Civil Rights in the US Department of Health and Human Services, or the privacy compliance officer designated by the institution in compliance with HIPAA. Patients do not have a right to file a private lawsuit under HIPAA. There are civil and criminal penalties for improper disclosure of personal health information. The soundest course for health care practitioners is to be well informed about HIPAA, to act in good faith, and make reasonable attempts to comply.

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