HIPAA and the Opioid Crisis

by  Wyn Staheli, Director of Content - innoviHealth
Jan 24th, 2018

In response to the opioid crisis, the Trump administration and the Department of Health and Human Services (HHS) have issued additional information relevant to both providers and patients. A December 18, 2017 press release included the following highlights of these actions:

Two new HIPAA webpages focused on information related to mental and behavioral health, one for professionals and another for consumers. These webpages reorganize existing guidance to make it more user-friendly and provide a one-stop resource for our new guidance and materials. This guidance is an important step forward in clarifying the circumstances under which HIPAA permits a covered entity to disclose information to family members and caregivers. For consumers: https://www.hhs.gov/hipaa/for-individuals/mental-health/index.html For professionals: https://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/index.html These webpages contain new HIPAA guidance on sharing information related to mental health and substance use disorder treatment with a patient's family, friends, and others involved in the patient's care or payment for care. The new information includes: a package of fact sheets; an infographic; decision charts, including materials specifically tailored to the parents of children who have a mental health condition; and scenarios that address sharing information when an individual experiences an opioid overdose. New collaboration with partner agencies within HHS to identify and develop model programs and materials for training healthcare providers, patients, and their families regarding permitted uses and disclosures of the protected health information of patients seeking or undergoing mental health or substance use disorder treatment, and to develop a plan to share the programs and materials with professionals and consumers. Updated guidance on HIPAA and research, as called for in the Cures Act: https://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/index.html Launch of a working group to study and report on the uses and disclosures under HIPAA of protected health information for research purposes. The working group will include representatives from relevant federal agencies as well as researchers, patients, healthcare providers, and experts in healthcare privacy, security, and technology. The working group will release a report addressing whether uses and disclosures of PHI for research purposes should be modified to facilitate research while protecting individuals’ privacy rights.

There are some misconceptions about HIPAA and the disclosure of information in certain emergency type situations such as:

• When the patient is incapacitated or unconscious
• To prevent or lessen a serious and imminent threat to a patient’s health or safety

See the Reference "How HIPAA Allows Doctors to Respond to the Opioid Crisis" for additional information.

The key here is the status of the patient and the amount of information released. It is also important to recognize that there can be state requirements which differ from HIPAA. It is up to the provider to know and understand the state privacy rules when it comes to these situations. Another important factor to consider is that the patient's capacity to make decisions can change during the course of treatment. For example, the patient may be unconscious or delirious upon arrival at the facility, but then later on, they are capable of making decisions. Healthcare providers need to use their best judgment as to when that changes and be sure the patient's best interest is served.