Attorney Cathrine Hunter was recently featured in The Florida Bar Health Law Section Newsletter. Read on to learn how the opioid crisis affects information sharing.
President Donald Trump issued a declaration on October 26, 2017, stating that the opioid crisis is now a national public health emergency. The HHS Office for Civil Rights subsequently released new guidance on when and how healthcare providers can share a patient’s health information with family members, friends, and legal personal representatives when a patient is in opioid crisis.
The new HHS guidance allows healthcare professionals to disclose some health information without a patient’s permission under certain circumstances, for example:
• A healthcare 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 the patient’s permission.
• A healthcare provider may inform family, friends, or caregivers of a patient’s 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.
HHS also noted in the guidance that if the healthcare provider’s state law is more restrictive on the communication of health information, then the healthcare provider must abide by the more restrictive law. Florida has three laws that appear to stand in the way of HHS’s new guidance.
• First, Fla. Stat. 456.057(7)(a), provides, in part, that medical records “may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient.”
• Second, Fla. Stat. 395.3025(4) prohibits hospitals from disclosing patient records “without the consent of the patient or his or her legal representative.”
• Third, Fla. Stat. 397.501(7) provides, in part, that “individuals receiving substance abuse services from any service provider are guaranteed protection,” and the records of such service providers which pertain to the “identity, diagnosis, and prognosis of and service provision to any individual are confidential” and “may not be disclosed without the written consent of the individual to whom they pertain.” The exceptions noted in Florida Statutes 456.057, 395.3025(4), and 397.501(7) do not address the permitted disclosures in the new guidance when a patient is in an opioid crisis.
Since Florida law is more restrictive than the new guidance from HHS, practitioners in this area of law should be cautious when advising clients. All of the protections under HIPAA and Florida’s more restrictive laws are still critical, because people who experience and seek treatment for opioid abuse may experience discrimination from healthcare providers and others. Opponents to the new HHS guidance are concerned that the personal information may get in the hands of a patient’s employer or police, who may want to punish the patient instead of making sure the patient receives proper care.
Cathrine Hunter is a practicing attorney in Florida since 2003 and an Associate with Woodward, Pires & Lombardo in Naples. One of her areas of focus is healthcare law, including HIPAA and the HITECH Act. She is a member of The Florida Bar Workplace Health & Safety Committee and the Wage & Hour Administration Committee.
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