SOME COMMON LAWS WHICH AFFECT PATIENT CARE
There are a number of laws at both the federal and state levels that affect patient care. This list is not meant to be complete, HIPAA The Health Insurance Portability and Accountability Act (HIPAA) was initially enacted as a means to prevent employers from denying employees health insurance coverage because of pre-existing conditions. In 2003, a privacy rule was published to mandate a consistent level of protection for all health information housed or transmitted electronically that pertains to an individual. This rule applies to “covered entities,” including nurses, other employees in healthcare facilities or agencies, health insurance companies, and medical-billing or data- collection companies (Wacko Guido, 2020). Covered entities include nearly all healthcare providers regardless of whether they work in outpatient, inpatient, or residential settings, as well as other persons or organizations that bill or are paid for healthcare (Wacko Guido, 2020). The HIPAA Privacy Rule is the first comprehensive federal protection initiative to protect the privacy of health (including mental health) information. The purpose of the rule is to provide significant legal protection to ensure the privacy of individual health information without interfering with access to treatment or quality of care (Wacko Guido, 2020). Basic principles of the HIPAA Privacy Rule Here is a summary of some of the basic principles of the HIPAA Privacy Rule (Wacko Guido, 2020): ● The privacy rule protects all protected health information (PHI) including any electronic PHI. Protected health information includes “individually identifiable health or mental health information held or transmitted by a covered entity in any format, including electronic, paper, or oral statements.” Protected health information includes: name, address ( all geographic subdivisions, smaller than state (so street zip code, city or country), all elements of dates, telephone numbers, fax numbers, email addresses, social security numbers, medical record number, health plan beneficiary number, certificate or license number, vehicle identifiers, device identifiers and serial numbers, Wed URL, Internet Protocol (IP) address, finger or voice print, and photographic images (not just face) and other characteristic that could uniquely identify the individual. ● A covered entity, such as a nurse, may not use or disclose PHI information to others except as the privacy rule allows or as authorized by the person or the person’s representative who is the subject of the health information. ● A covered entity must provide individuals (or their personal representatives) access to their own PHI unless there are permitted grounds for refusal. The covered entity must Case study #3 Mrs. Davidson is a 60-year-old investment banker who has been diagnosed with Stage II breast cancer. Her mother and grandmother are breast cancer survivors. Mrs. Davidson has a 35-year-old daughter from whom she is estranged. After undergoing genetic testing, Mrs. Davidson was found to have a genetic mutation that significantly increases the risk of breast cancer. Mrs. Davison has made it clear to her physician and the nursing staff that she will not be sharing the results of the genetic testing with her daughter, Victoria. One of Mrs. Davidson’s nurses knows Victoria; they attend the same church. Questions: 1. Victoria asks the nurse if any test results have come back on her mom. What should the nurse say and why? 2. If she tells Victoria, are there ethical and legal concerns? If so, what are they? 3. If Victoria did not ask the nurse, should the nurse still say anything? Why or why not?
however it presents two of the federal laws that directly affect nurses.
provide an accounting of the disclosures of the PHI to others upon request. ● The privacy rule supersedes state law. However, state laws that provide greater privacy protections or give individuals greater access to their own PHI remain in effect. Disclosures to other persons Nurses and other healthcare professionals are often in the difficult position of having to refuse to give information to a patient’s family, friends, or others involved in the patient’s care in order to adhere to confidentiality and privacy mandates. However, under certain circumstances, the privacy rule does allow disclosures to family, friends, and others involved in the patient’s care or payment for care (Wacko Guido, 2020). ● Disclosures to family and friends is allowed if the patient is present and has the capacity to make healthcare decisions. A provider may disclose pertinent information to family and friends if the provider does one of the following: ○ Obtains the patient’s permission. ○ Gives the patient an opportunity to object and the patient does not object. ○ Decides from the circumstances (based on professional judgment) that the patient does not object. ● Disclosure may be made in person, over the telephone, or in writing if the patient is not present or is incapacitated if, based on professional judgment, the disclosure is in the patient’s best interest. Examples of such professional judgment include allowing someone to pick up a filled prescription or other types of similar health information for the patient. ● Disclosures to other persons are allowed if the patient is present and has the capacity to make healthcare decisions if the provider does one of the following: ○ Obtains the patient’s permission. ○ Gives the patient an opportunity to object and the patient does not object. ○ Decides from the circumstances (based on professional judgment) that the patient does not object. ● Disclosures to other persons may be made in person, over the telephone, or in writing if the patient is not present or is incapacitated. A provider may disclose relevant information if the provider is reasonably sure that the patient has involved the person in the patient’s care and, using professional judgment, the provider believes the disclosure to be in the patient’s best interests. Discussion The nurse cannot tell Victoria if there were any tests and if there were any results. The nurse would be best saying “I am not allowed to say anything, including if there are test results as your mom’s medical information is private.” Mrs. Davidson expressed clearly that she did not want her daughter to know. Mrs. Davidson’s results are protected under HIPAA; no one has access to the results without Mrs. Davidson’s expressed permission. From an ethical point of view, autonomy is not limited to physical autonomy but the autonomy to decide who has access to information. Finally, if Victoria does not ask, the nurse has no obligation for letting her know the results for the reasons above. While some could say, given the nature of the results (genetic), the daughter has a right to know, even genetic results are considered private and require permission from the patient to be disclosed.
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Book Code: ANCCUS2423
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