Irrespective of ROI, irrespective of jail time, irrespective of public shaming, irrespective of patient rights and privacy, we often hear from our colleagues: “I am emailing and texting patient stuff. I asked the patient! After all, I am a medical professional and acting on their behalf."
When I hear this, I feel real fear for my colleagues -- and dismay. The HIPAA rules are clear and the law is being enforced. The fines are big, and a year in jail is not appealing.
That is why we were confused about reports surrounding the recent tragedy in Orlando. Orlando Mayor Buddy Dyer told television reporters that he had asked the White House to waive HIPAA.
We certainly applaud the motivation in terms of caring for people -- but the reality is that even a tragedy of that magnitude, and likely even a White House clearance, would not keep providers safe. We all know that the law has real teeth, not the least being that anyone in a chain of events is liable (the administrator for the doctor, the doctor for the administrator). So how could a waiver be granted? The law becomes both complex and obtuse about the release of patient information to family members and the media. We are very aware of cases where grown children with an admission for psychiatric disease are isolated and essentially jailed while the parents with whom they live are not allowed to learn and intervene. In a chaotic situation, the difficulties compound.
As the dust settled, we found out that indeed, there was no waiver. None have been granted since the Katrina disaster -- and that includes the 9/11 attacks. None was actually needed, as the U.S. Department of Health and Human Services Office of Civil Rights (OCR) outlines that professional discretion is allowed for 72 hours when there is an emergency situation.
Ultimately, it's appropriate that patients' privacy is protected, even in times of uncertainty and emergency -- as so much of medicine exists in.
HIPAA waivers can't -- and likely shouldn't ever -- be granted. Especially when there are legal ways to communicate and collaborate that are easy and fast. It can be simple to stay HIPAA compliant.
The waiver asked for was not necessary. However, it is clear that texting a consult, emailing a picture, and talking about a case in the elevator are all violations.
We understand the problem, we created a solution, and we are doing our best to make it available to everyone because that is truly “care on behalf of the patient”.
Learn more about your HIPAA rights and risks here: