With Law Enforcement, Be Courteous but Follow HIPAA Rules
By Greg Freeman
With violent crime on the rise, especially in inner-city metropolitan areas, hospital EDs are experiencing more interactions with law enforcement personnel, says Richard F. Cahill, JD, vice president and associate general counsel with The Doctors Company, a malpractice insurer based in Napa, CA. Generally, the exchanges are professional and courteous but can be stressful and time-consuming.
Employees should know prompt compliance with inquiries should be honored in accordance with applicable law, and facility protocols must be followed consistently. When victims of crime arrive, police officers usually arrive shortly thereafter to interview witnesses and even healthcare providers to determine what occurred, identify potential suspects and their culpability, ascertain the extent of an individual’s injuries, and evaluate the most appropriate charges to file, Cahill notes.
Particularly in clashes between rival gangs or illicit drug transactions gone bad, many of the patients are in custody when they are transported to EDs for care that may create the need for carefully crafted responses and implementation of additional security measures.
“A variety of difficult challenges confront hospitals facing such circumstances. Medical and nursing staff are legally obligated to cooperate with law enforcement acting within the course and scope of their official duties,” Cahill says. “Investigative delays can impair the timely apprehension of the criminals responsible for the violence, thereby further endangering the public at large.”
Adhere to Privacy Laws
Frequently, patrol officers and detectives request access to protected health information, Cahill notes. Federal and state privacy laws invariably recognize the importance of these inquiries, but healthcare providers should be reminded they are required to follow confidentiality protections governing these details and should be aware of the applicable limitations as well as ramifications if the rules are violated.
The nature and extent of the inquiry must be assessed at the outset of the encounter and proper procedures should be implemented and consistently followed to ensure adherence to disclosure requirements.
Unless a patient voluntarily provides oral permission to the practitioners to release the clinical findings and assessments, Cahill advises strict conformity with existing statutes to prevent a complaint to state licensing agencies, the imposition of civil and administrative sanctions (including monetary fines), and an investigation by the Office for Civil Rights that could lead to enforcement actions and related penalties.
Staff should chronicle what transpired with the request, including when and why, in the medical record to preserve a contemporaneous log in case of a complication, adverse event, or a subsequent investigation by prosecuting authorities, Cahill advises. All participants should be clearly identified by name and title in the progress notes.
“Proper medical care and treatment, as well as respectful cooperation with law enforcement, is critical. Individuals seeking access to protected health information should be politely requested to produce their department photo identification and agency badge,” Cahill says. “Depending upon the urgency of the situation, asking that a written statement setting forth the scope of what is being sought by fax transmittal on department stationery is preferable. Notifying the patient, if feasible, when the request is made helps to prevent later misunderstandings and conflict.”
Cahill says staff should follow the “minimum necessary” rule outlined in HIPAA and provide the record set that minimally complies with the inquiry. After evaluating the nature of the information involved, it may be necessary to advise the officer in a polite and professional tone the inquiry is beyond the scope of the recognized law enforcement exception and a search warrant or other court order is necessary.
“The situation may escalate rapidly, and ED personnel may need to request support from hospital administration,” Cahill notes.
Patients in custody create a unique obstacle for healthcare providers and require special precautions to prevent injury to staff, other patients, or visitors, Cahill says. Hospitals should periodically audit their procedures to help ensure conformity with expected community standards and modify, as necessary.
• Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368.
When patrol officers or detectives request access to protected health information, healthcare providers should be reminded they are required to follow confidentiality protections governing these details and should be aware of the applicable limitations as well as ramifications if the rules are violated.
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