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HIPAA/LAW:
December 2003
"HIPAA, Ethics & The New York Times"
by Steve Fox & Rachel Wilson, Esqs., Pepper
Hamilton LLP
In the November 16th installment of "The Ethicist," a
column appearing weekly in the New York Times Magazine, the Grey
Lady addressed an issue near and dear to our hearts: the use and
disclosure of protected health information (PHI). Ah, how we love
the smell of HIPAA wafting gently by our noses on a Sunday morning
along with the aroma of freshly brewed gourmet coffee and scones.
Okay, perhaps we are overstating it just a bit, but hey, we got
your attention, didn't we?
The column was a response to an ethical question posed by an emergency
room (ER) physician. A school-bus driver was admitted to the ER
three times over the course of six months. Each time, the driver
was agitated, paranoid, threatening, and tested positive for recent
cocaine use. The physician counseled the driver, advising him that
cocaine use could endanger his young passengers. But to the physician's
dismay, the driver shrugged off the information, stating that his
drug use was recreational and limited to off-hours. The physician
wanted to report the driver to the school-bus company, but the hospital's
lawyers directed him not to, citing patient confidentiality. The
physician, torn between his desire to protect the children and other
drivers on the one hand, and maintaining patient confidentiality
on the other, asked The Ethicist (a noted HIPAA expert) for advice.
Noting that although it may put the physician "in legal peril,"
The Ethicist advised the physician to breach patient confidentiality
because the driver presented a serious, imminent threat to himself
and others. Who was right? The Ethicist or the hospital lawyers?
The Ethicist got it right. At least as far as HIPAA is concerned.
Under the HIPAA Privacy Rule, covered entities are not required
to obtain patient authorization prior to using or disclosing PHI
for the purpose of averting a serious threat to health or safety.
However, the disclosure can only be made if the covered entity has
a good faith belief that:
- the use or disclosure is necessary to prevent or lessen a serious
and imminent threat to the health or safety of a person or the
public; and
- the use or disclosure is directed at a person or persons reasonably
able to prevent or lessen the threat.
Because the physician was concerned about the safety of the children
using the bus and could not reasonably trust the driver's declarations
that his drug use was limited to off-hours, the disclosure would
be permissible under HIPAA. Moreover, the disclosure would be made
to the driver's employer, a person (or entity) with the power to
prevent or lessen the threat posed by the driver's drug use.
We hope that you enjoy a safe and happy holiday season.
Read past HIPAA Legal Q/A articles.
Steve Fox, Esq., is a partner at the Washington, DC office of Pepper
Hamilton LLP, www.pepperlaw.com  .
This article was co-authored by Rachel H. Wilson, Esq., an associate
of Pepper Hamilton LLP. They may be reached at foxsj@pepperlaw.com. Disclaimer: This information is general in nature and should
not be relied upon as legal advice.
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