HIPAA: Are We Making it Stronger or More Lenient?

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As someone who follows HIPAA things pretty closely, I’ve been a bit fascinated in this week’s announcements. Let me start by saying this post is not meant to spark a political discussion about gun control. The recent events in Connecticut are beyond belief to all of us, and no one would not want children to be safe in schools. My heart goes out to those families and parents, both of the children and the school staff. We saw another example of horrific loss in Colorado last summer with the Aurora theater shooting.

So this week, we saw an announcement by President Obama of his proposal to strengthen the gun control laws in our country, citing the need for increased safety. One that particularly caught my eye was this: “Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.” The very next point says: “Improve incentives for states to share information with the background check system.”

What does that really mean? It really doesn’t say. Would it mean that there would now be a state database of any individual who has been treated for a mental health condition? And if so, that information would then be easily accessible to those doing background checks? Would patients have any control over how and when their information was shared?

I also have to wonder how “mental health issues” will really be defined. In my world, things like anxiety and depression have generally been considered mental health issues. Now that I have been working in a release of information world, I am learning that most healthcare facilities do not consider those kind of diagnoses a “mental health” diagnosis. What that means is if a patient doesn’t authorize the release of “mental health information,” and they have been treated for depression by their family practitioner, those records can and may very well be released when their records are sent somewhere. In my own personal example, when I lost my grandmother last year, I was given an antidepressant at one point in the grieving process. Does that now label me as having a mental health disorder? Do I, as a patient, then lose control over who has access to that information?

Two more points in this list state:

Clarify that no federal law prevents health care providers from warning law enforcement authorities about threats of violence: Doctors and other mental health professionals play an important role in protecting the safety of their patients and the broader community by reporting direct and credible threats of violence to the authorities. But there is public confusion about whether federal law prohibits such reports about threats of violence. The Department of Health and Human Services is issuing a letter to health care providers clarifying that no federal law prohibits these reports in any way. (This has already been published as of this writing.)
• Protect the rights of health care providers to talk to their patients about gun safety: Doctors and other health care providers also need to be able to ask about firearms in their patients’ homes and safe storage of those firearms, especially if their patients show signs of certain mental illnesses or if they have a young child or mentally ill family member at home. Some have incorrectly claimed that language in the Affordable Care Act prohibits doctors from asking their patients about guns and gun safety. Medical groups also continue to fight against state laws attempting to ban doctors from asking these questions. The Administration will issue guidance clarifying that the Affordable Care Act does not prohibit or otherwise regulate communication between doctors and patients, including about firearms.

So what happens here? Every physician will now be expected to ask all patients if they have a gun in their home? Frankly the first point isn’t something that I believe has ever been in question. Those who treat patients with mental health issues have always had a duty to report potential threats of violence. It’s the second one I wonder about. What then happens to that information? Are we asking physicians to become the ones who now collect information on who owns a gun and then report it? And if so, report it to who? If the patient is being treated for a mental disorder, psychiatrists have made it pretty clear that they already ask that question. Of interest, that letter telling physicians they can and should report known threats has already been issued since the press conference this week. If I’m not being treated for a mental disorder, then I don’t see how that is a discussion that really impacts my health care treatment with my physician.

And then on Thursday it got even more interesting. The Department of Health and Human Services announced their revisions to the HIPAA Privacy and Security Rules–many of them designed to strengthen the protection we are all supposed to have under this law related to our health information. As I read through this document, I wondered how they will still be able to tell patients they have control over where their information is disclosed.

So if we have all of these things, what happens to the doctor patient relationship? Will fewer people actually seek the help they need because they fear being put into some kind of national database? Does our right to privacy related to our health information become eroded?

As I said in the beginning, the recent events in our country are nothing short of true tragedy. Yet, in the end, would any of these things stopped what happened in Connecticut? That man didn’t own or buy those guns, someone else did. He would not have had to have a background check done, none of his physicians would have had to report he had weapons, and I’m not sure we would have stopped it.

What I hope is that we can find ways to reduce serious crimes in our country, be sure our laws are enforced, and do that without eroding the protection I believe I should have as a patient and the privacy that so many felt they were afforded under HIPAA regulations. I don’t believe I need to discuss with my physician if there is a gun in my home (there isn’t, by the way). And before you tell me it’s about “safety,” does that mean the physician should also ask how may sharp knives I have, or whether I burn candles at night and sometimes fall asleep? It’s a slippery slope in my opinion and I hope we don’t see patient’s privacy protections eroded in the name of a political battle.

And now it’s your turn. Your thoughts?

Tagged with: HIPAA • HITECH Act • patient privacy

Filed under: HIPAA • HITECH Act

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