HIPAA Changes for Opioid Overdoses?

The privacy requirements which maintain the confidentiality of patients’ opioid use may change to allow exemptions for cases of overdose. Governor Chris Christie, who chairs the President’s opioid commission, has recommended that HIPAA be amended so relatives can be alerted when a family member has an overdose reversed by the opioid antagonist Narcan.

During an event in Morristown, New Jersey, Christie recently said: “I don’t think we should make it right to kill yourself easily without the intervention of your loved ones.” He told reporters that he was met with the U.S. Secretary of Health and Human Services and attorneys in the Justice Department about this proposal.

Christie already has many supporters. Dr. Deborah Peel, the president of the Patient Privacy Rights organization, said it should be very clear to physicians that they may call family members if a patient needs help.

“When someone is unconscious, you should violate their privacy to save a life,” Peel said.

At the New Jersey event, Christie told the story of a couple who learned of their son’s previous six overdoses only after a fatal overdose killed him. On this issue, Christie said, “It is unacceptable to me, and it makes no sense.”

Efforts to amend HIPAA’s current protections do not have unanimous support among those battling the opioid crisis.

Joy Pritts, a former chief privacy officer of the Office of the National Coordinator for Health IT, explained that the national guidelines already permit physicians to notify close relatives if a patient has overdosed. Pritts explained that if a patient has overdosed and is unconscious (or barely conscious), a physician may contact the family members.

“There is very much a lack of understanding of all the exemptions in HIPAA, even among health care providers,” Pritts said. She explained that the statute probably does not need to be amended but that administration could instead offer further guidance on the issue.

Pritts is correct; HIPAA already contains such exceptions, so Christie’s suggestions are more political posturing than advocating for change.

As needed to treat a patient, providers may disclose protected health information without the patient’s permission. In this context, “treatment” includes the management and coordination of healthcare between providers and the referral of patients for treatment. (45 CFR 164.502(a)(1)(ii), 164.506(c), 164.501). Providers are also already permitted to share protected health information with a patient’s relatives or friends if those people are involved in and necessary to the patient’s care, if the sharing is necessary to identify, locate, or notify family members. Before making these types of notifications, however, the providers should obtain the patient’s verbal permission or reasonably infer that the patient doesn’t object to the sharing. If the patient is unconscious, the provider can still share the protected health information if their professional judgment indicates that it is in the patient’s best interest. (45 CFR 164.510(b)).

These disclosures must always include only the minimum amount of information necessary to accomplish the purpose of sharing. These situations do not suspend HIPAA’s requirements – rather, they permit some limited exceptions to allow providers to respond to emergencies. Providers should be familiar with these exceptions so that they can respond in an ethical, legally-compliant, and clinically sound manner to emergencies.  Refer to your HIPAA policies and procedures for details – or, if you don’t have them, contact us (they’re required!).

Read more:

Katherine Landergan, Christie: Opioid commission may propose changing HIPAA rules, Politico (June 12, 2017).

NJ Gov. Seeks Ease in HIPAA Regulations for Opioid Fight, HealthITSecurity (June 14, 2017).

U.S. Department of Health and Human Services, Office for Civil Rights, BULLETIN: HIPAA Privacy in Emergency Situations (Nov. 2014).

about the author

Erin K. Jackson is Jackson LLP’s Managing Partner. She is responsible for all aspects of firm management, is a sought-after speaker for healthcare conferences, and is a published author. She is specifically focused on the intersection of the patient experience in healthcare with the legal and ethical responsibilities of providers.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

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