Another unintended consequence of health "privacy" laws [priv]

[Declan McCullagh <declan () well com>]

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From: "J.D. Abolins" <jda-ir () njcc com>
Reply-To: jda-ir () njcc com
To: Declan McCullagh <declan () well com>
Subject: Another unintended consequence of recent health privacy laws.
Date: Fri, 3 Oct 2003 12:12:01 -0400
Cc: "Jim Harper - Privacilla.org" <jim.harper () privacilla org>

An interesting article below about HIPAA and one of its side effects not
generally covered in newspapers and TV reports in my area of the USA
(NYC-Philadelphia metro). Jim Harper touched upon it briefly on the
Privacilla.org site. (See
http://www.privacilla.org/business/medical/medicalbackfire.html)

My further comment follow the article snippets. -JDA

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http://www.jewishworldreview.com/0803/clergy_privacy.php3

Jewish World Review Sept. 24, 2003 / 27 Elul, 5763

Privacy law hinders clergy's access to parishioners who are hospitalized
By Sarah Carr and Scott Williams

Religious and ill? An expanding government is making it harder for you to
receive "spiritual healing" along with your medical treatment

MILWAUKEE — Rabbi Leonard Lewy worries about what could be lost in the name of
privacy.

Gone are the days when members of the clergy could walk into a hospital, open
the patient files and scan the names for their parishioners.

New federal rules designed to protect patient privacy have complicated one of
the traditional roles of the clergy: visiting and aiding the sick and the
dying in the hospital. In most cases, patients must now consent to having
their names and conditions released before the hospital may do so.

In one instance, Lewy said, three members of a group for Jewish adults with
special needs fell ill and died in the hospital without the Jewish Chaplaincy
Program even finding out they had been hospitalized.

He believes his organization would have been aware of the illnesses before the
latest version of the federal Health Insurance Portability and Accountability
Act took effect in April. The law is aimed at preserving patients' rights by
ensuring their names and conditions are not released against their will.

"Sometimes in protecting privacy, we can cut off our nose to spite our own
face," Lewy said.
[...]

Because of the complexity of the act's regulations and their relative newness,
hospitals have interpreted the rules in varying ways.

Some no longer allow clergy access to computerized databases of patients, for
instance. Others now compile lists of patients who have agreed to release
their names and present them to clergy.

Clergy members have responded by educating their flocks - posting notices in
newsletters instructing them to call religious leaders directly if a family
member is hospitalized.

Still, they worry that a newly admitted patient without the ability to ask for
a clergy member may never be discovered.
[...]

"In some situations, I think there has been confusion and concern that the
hospital is holding back a name when in reality the family and patient have
requested that it be held back," said Mary Kay Grasmick, Wisconsin Hospital
Association spokeswoman.

No rabbi or priest expressed a wish to visit parishioners against their will -
or publicize to a congregation information about an illness that a member
wishes to keep quiet. But they are concerned that amid all the confusion of
being admitted to a hospital, a patient may forget or be incapable of
requesting clergy.
[...]

Sarah Carr and Scott Williams are reporters for Milwaukee Journal Sentinel.

© 2003, Milwaukee Journal Sentinel Distributed by Knight Ridder/Tribune
Information Services
<snip>
End of article snippets


My comments:

Besides the interpretation of HIPAA by various hospitals blocking clergy
access, the article shows how the combination of confusion about what it
takes for a hospital to comply with HIPAA and the stiff liability potential
pushes aside many other, worthwhile, functions.

Keep in mind that the fear, uncertainty, and doubt (FUD) are not lingering
over the egregious scenarios (hospitals leaking juicy patient info to the
tabloids, staff telling patient employers of substance abuse problems without
consent/authorization, etc.) but over the interpretation of petty disclosures
that can occur in day-to-day operations. Things such as a pharmacist talking
with a customer and Mr. Nosey-with-Excellent-Hearing picks up bits and pieces
to blab about town; somebody in hospital recognizing a neighbor in the
hospital's ER and calls the neighbor's family to tell of the news, etc.

How much is "reasonable" of a safeguard to provide defense against a
HIPAA-based penalty or suit? Nobody seems to know and nobody wants to be the
"lucky one" to be in the early cases that begin to give some answer, of
sorts, from the courts. But if the cases settle outside of court, then we are
still in the dark.

Oh, incidentally, one of the revenge effects of this approach to medical
privacy is that the rewards/penalties are pushed towards cutting various
communications that were generally beneficial or tolerable in favor of legal
defensibility. Acts of kindness, such as a hospital volunteer helping a
clergy member find a congregant who did give all kinds of overt
authorizations, threaten death by a thousand lawyers. <grin & groan>

I believe that the HIPAA approach has made negotiations about medical privacy
and information handling much more complicated and often impossible for
patients and physicians, at least without going underground, going oversees,
or to the few physicians who can work in the areas outside of HIPAA. (I am
not an expert of HIPAA but I see some limitations in its applicability
whereby a physician could provide care without the hindrances. The
practitioner and her patients would have to forgo certain resources common in
medical care, but it can be done. Marcus Welby, where are you when we need
somebody like you? <grin; 1970s reference>

J.D. Abolins
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