Are patient privacy laws being misused to protect medical centers?

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HIPAA

This story was co-published with NPR’s “Shots” blog.

In the name of patient privacy, a security guard at a hospital in Springfield, Missouri, threatened a mother with jail for trying to take a photograph of her own son. In the name of patient privacy , a Daytona Beach, Florida, nursing home said it couldn’t cooperate with police investigating allegations of a possible rape against one of its residents.   In the name of patient privacy, the U.S. Department of Veterans Affairs allegedly threatened or retaliated against employees who were trying to blow the whistle on agency wrongdoing.

When the federal Health Insurance Portability and Accountability Act passed in’96, its provisions included preventing patients’ medical information from being shared without their consent and other important privacy assurances.   But as the litany of recent examples show, HIPAA, as the law is commonly known, is open to misinterpretation “ and sometimes provides cover for health institutions that are protecting their own interests, not patients’.

Sometimes it’s really hard to tell whether people are just genuinely confused or misinformed, or whether they’re intentionally obfuscating,” said Deven McGraw, partner in the healthcare practice of Manatt, Phelps & Phillips and former director of the Health Privacy Project at the Center for Democracy & Technology.

For example,  a frequent health privacy complaint to the U.S. Department of Health and Human Services Office of Civil Rights is that health providers have denied patients access to their medical records, citing HIPAA. In fact, this is one of the law’s signature guarantees.  œOften they’re told HIPAA doesn’t allow you to have your records, when the exact opposite is true, McGraw said.

Here is a little more on that story from Missouri mentioned earlier:  Wilson was taken to an office where she was questioned by a security guard. The video of the incident records him asking for her phone to verify that the pictures she took had been deleted. The video, which Wilson took secretly, doesn’t show faces but includes audio.  The secretly recorded video shows that when Wilson refused to hand over her phone, the officer told her she would be barred from returning to Mercy property and could be taken to the Greene County Jail if she came back.  œYou’re being trespassed for violation of HIPAA, the officer said, referring to the federal regulation governing privacy rights for patients. œ¦I’m informing you now that you’re being trespassed. If you come back on the property, you will be detained and taken to the Greene County Jail.

œBecause I took a picture of my son? Wilson asked.  Click here to read an update on this Missouri story: http://www.news-leader.com/story/news/local/ozarks/2014/08/04/mom-sues-mercy-photo-flap/13603445/

In our practice, we see this federal law misused, abused and misinterpreted time after time.  Many times, we request records, on behalf of our clients, which will be held for an inordinate amount of time because of inaccurate claims of HIPPA.  It is our hope that health care providers will educate themselves on the law and not abuse the law as we’ve seen recently.

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