The HHS Office for Civil Rights (OCR) continually provides guidance to covered entities and to patients and their family members on important HIPAA-related topics, says Iliana Peters of the Polsinelli law firm in Washington, D.C. One such item is how healthcare providers can share information about mental and behavioral health issues. The guidance includes decision trees for providers and family members.
Also of note is that OCR is undertaking two deregulatory rulemaking efforts—a proposed rule titled “Changing Requirement to Obtain Acknowledgment of Receipt of the Notice of Privacy Practices,” and a proposed rule regarding “Presumption of Good Faith of HealthCare Providers.”
The first proposed rule would ease the burden associated with attempting to obtain an acknowledgement from individuals when they receive a Notice of Privacy Practices. There has been a fair amount of confusion about whether the acknowledgment amounts to consent (it doesn’t) and whether it is a prerequisite to treatment (it isn’t).
The second proposed rule would make clear—absent evidence to the contrary—that the OCR would presume good faith when healthcare providers share information with incapacitated individuals’ family members. This presumption would be similar to those already in the Privacy Rule that permit HIPAA covered entities to disclose information to avert a serious threat to health or safety. The OCR has stated publicly that the presumption is implied by the Privacy Rule and is consistent with OCR’s current enforcement practices, but the proposed revision would clarify the point for healthcare providers and would help to ensure that they feel comfortable making such disclosures to family members.
J. Stuart Showalter, JD, MFS, is a contributing editor for HFMA, and is an HFMA member.
