The Office for Civil Rights has issued new guidance on when and how healthcare providers can share a patient’s health information with his or her family members, friends, and legal personal representatives when the patient may be in crisis and incapacitated, such as during an opioid overdose.
The following information will explain how a practice can share patient information (without patient authorization) with family members or designated friends during certain crisis situations, such as the opioid situation.
- Sharing health information with family and close friends who are involved in care of the patient if the provider determines that doing so is in the best interest of an incapacitated or unconscious patient and the information shared is directly related to the family or friend’s involvement in the patient’s healthcare or payment for care. For example, a provider may use professional judgment to talk to the parents of someone incapacitated by an opioid overdose about the overdose and related medical information, but generally could not share medical information unrelated to the overdose without permission.
- Informing persons in a position to prevent or lessen a serious and imminent threat to a patient’s health or safety. For example, a doctor whose patient has overdosed on opioids is presumed to have complied with HIPAA if the doctor informs family, friends, or caregivers of the opioid abuse after determining, based on the facts and circumstances, that the patient poses a serious and imminent threat to his or her health through continued opioid abuse upon discharge.
For patients with decision-making capacity: 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 (generally or with respect to specific people), unless there is a serious and imminent threat of harm to health as described above.
Decision-making incapacity may be temporary and situational, and does not have to rise to the level where another decision maker has been or will be appointed by law. If a patient regains the capacity to make health care decisions, the provider must offer the patient the opportunity to agree or object before any additional sharing of health information.
For example, a patient who arrives at an emergency room severely intoxicated or unconscious will be unable to meaningfully agree or object to information-sharing upon admission but may have sufficient capacity several hours later. Nurses and doctors may decide whether sharing information is in the patient’s best interest, and how much and what type of health information is appropriate to share with the patient’s family or close personal friends, while the patient is incapacitated so long as the information shared is related to the person’s involvement with the patient’s health care or payment for such care. If a patient’s capacity returns and the patient objects to future information sharing, the provider may still share information to prevent or lessen a serious and imminent threat to health or safety as described above.
While HIPAA provides a patient’s personal representative the right to request and obtain any information about the patient that the patient could obtain, and under state law, a personal representative designation generally authorizes the person to make healthcare decisions for the patient, there may be conflict with existing state laws regarding information related to substance abuse treatment. If a state’s law is more restrictive regarding the communication of patient information (for example, state law might state that substance abuse treatment information can only be shared with treatment personnel involved in treatment), then your practice should rely on the requirements of the more restrictive law (in this example state law).