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HIPAA Disclosures in Crisis Situations, Including Opioid Overdose Situations

Monday, January 21st, 2019

By: Elizabeth Jepson, J.D.

Providers must be cognizant of their ability and/or responsibility to share protected health information (PHI) of patients suffering from opioid addiction. Recently, U.S. Health and Human Services Office for Civil Rights (OCR) published guidance regarding the disclosure of PHI for patients in crisis, including those experiencing opioid addiction and/or overdose. In providing this guidance, OCR intended to “give medical professionals increased confidence in their ability to cooperate with friends and family members to help save lives.”

A provider’s ability to share PHI without the consent of the patient greatly depends on the patient’s mental capacity. If the patient is capable of making decisions, he or she must be provided with the opportunity to agree or object to sharing of his or her PHI. However, HIPAA provides an exception to a mentally competent patient’s right to agree or object to the disclosure of PHI if the provider reasonably believes that the patient presents a serious and imminent risk to himself or herself. Such imminent risk may include the continued abuse of opioids, such that the provider believes disclosure of certain, limited PHI may be necessary to preserve the patient’s life.

For a patient that is not capable of making decisions, a provider may determine that sharing the patient’s PHI with a family member or other personal representative is in the best interest of the patient. In this case, the PHI disclosed should be limited to the information that is directly related to the individuals’ involvement with the patient.

At times, providers’ obligations under federal and state law to maintain patient privacy may compete with the responsibility to act in the best interest of patients. In emergency or crisis situations, sharing PHI may be advisable and appropriate. Any such disclosure should be conducted in a manner that is compliant with the HIPAA Privacy Rule and applicable state law.

Elizabeth Jepson is a member of a team at Brown & Fortunato, P.C. that routinely represents hospitals and health systems on a broad spectrum of corporate, regulatory and operational issues. The team is led by Beth Anne Jackson (bjackson@bf-law.com), Elizabeth Jepson (ejepson@bf-law.com), Lisa Smith (lsmith@bf-law.com), and Allison Shelton (ashelton@bf-law.com). You can reach the Hospitals and Health Systems team at Brown & Fortunato at 806-345-6300.