HHS Offers New HIPAA Guidance in Light of Opioid Crisis

Shortly after President Donald Trump declared a nationwide public health emergency to combat the opioid crisis, the HHS Office for Civil Rights released new guidance on when and how healthcare providers can share a patient’s health information when that patient may be in crisis and incapacitated, such as during an opioid overdose.

HIPAA regulations already allow health professionals to share health information with a patient’s loved ones in emergency or dangerous situations. However, sometimes there is confusion among healthcare professionals as to when such information can be shared, which HHS noted might hamper proper care.

HHS outlined several scenarios in which healthcare providers could disclose a patient’s health information without their permission.  Such situations include:

• Sharing health information with family and close friends who are involved in the care of the patient if the provider determines that doing so is in the best interests of an incapacitated or unconscious patient and the information is directly related to the family or friend’s involvement in that patient’s healthcare or payment of care.
• If the person being informed can lessen a serious and imminent threat to a patient’s health or safety.

In instances where a patient can make a decision, a healthcare provider must give the patient the chance to agree or object to sharing health information, unless there is a serious and imminent threat of harm to a patient’s health or safety. This includes instances where a patient who previously was not able to make a decision regains that capacity, at which time a healthcare provider must allow the patient to agree or object before sharing any additional information.

HHS notes, however, that if the provider’s state law is more restrictive, then the provider must follow the more restrictive law.

Preliminary estimates from the National Center for Health Statistics suggest that there were more than 64,000 drug overdose deaths in 2016 with traditional opioid painkillers, such as OxyContin and Percocet, accounting for approximately 14,400 of those deaths.

At the same time that HHS is making its recommendations, the U.S. Government Accountability Office released three of its own recommendations on the need for Medicare to expand oversight efforts to reduce the risk of harm from opioids.

• CMS’ administrator should collect information on the number of beneficiaries at risk of harm from opioids as part of assessing progress over time in reaching the agency’s goals relating to reducing opioid use.
• CMS’s administrator should require its contractor (National Benefit Integrity Medicare Drug Integrity Contractor), to identify and conduct analyses on providers who prescribe high amounts of opioids separately from providers who prescribe high amounts of any Schedule II drug.
• CMS’s administrator should require plan sponsors to report to CMS on investigations and other actions taken related to providers who prescribe high amounts of opioids.

More than 14 million people received opioid prescriptions in 2016 through the Medicare drug benefit program, Part D.

As we wrote about in August, efforts are underway to pass legislation that would allow physicians to gain access to a patient’s complete medical records – including their addiction treatment history – before making any prescribing decisions.

The Health Law Offices of Anthony C. Vitale’s highly skilled team of experienced legal professionals can help you to create a HIPAA Privacy and Security compliance program designed to meet your unique needs. Give us a call at 305-358-4500 or send an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.