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this post was submitted on 18 Jun 2024
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The following post my be completely wrong based on new updates to HIPAA and previous suggestions that were not added as expected to revisions. There is one reply below this saying it's wrong, and they are probably right. This whole post is probably mostly wrong, therefore. I'm leaving it here for now, but it's incorrect.
It's not a textbook HIPAA violation.
HIPAA has a good-faith exception allowing medical professionals to disclose private medical information when it's in the best interest of the patient.
What is in the best interest of the patient?
Well, following all the rules of the government, which are all there for people's safety, of course!
For example, Norma gets pregnant and abortion is legal and she has an abortion. She is relying on HIPAA to keep her medical privacy.
Abortion then becomes illegal after she had her abortion. A hospital worker, knowing that abortion is illegal, provides this information to the police so that they can monitor Norma to make sure she doesn't get more abortions. This would be a good-faith exception to HIPAA because the medical worker is breaching Norma's privacy in Norma's best interest because he is worried she could break the law by having more abortions, and following the law is always in the interest of safety, no matter what. (Have doubts? Just ask ChatGPT if it's ever safer to not follow public rules and regulations because of having a different personal belief system.) Norma then sues the medical worker and claims the good-faith exception violated HIPAA, and a court then is left to decide whether this worker was acting in Norma's best interests, by helping make sure she follows the law, or doing something bad. If the court finds against the worker, it's at best a slap on the wrist and small fine, but if the hospital worker is in a conservative court, the worker is going to win anyway.
Worst of all, as a patient, Norma can not opt-out of the good-faith exception. There is no mechanism in the HIPAA rules that allows her to say "You know that good faith exception? I am explicitly requiring you to close that loop-hole for me because I'm a private person, my family and I have different values, and it's just easier for me this way. I don't want to have to worry about you deciding something that would make me uncomfortable. If I want you to talk to someone, I'll give explicit consent beforehand and even emergencies or unusual exceptions don't change this." There is no way to opt-out of this awful ambiguous rule. In the medical industry, you either accept their rules and regulations or you walk away and don't get medical care.
So sadly, you're actually totally wrong. I hope this doctor who breached patient privacy claims HIPAA wasn't violated in just this way so that legislators realize how much they fucked up and so that patients no longer have to hope and pray their doctor doesn't decide to break privacy in a patient's supposed best interest. There are so many exceptions and rules change so much that it's no wonder that women will no longer talk with doctor's about periods, and women are even afraid to tell therapists about having been raped in certain states.
It's honestly better for patients, especially women, to start seeing the medical establishment for what it is: a highly regulated arm of the government who does exactly what it's told in order to keep getting high salaries and wages. Don't adhere to the government rules? Goodbye high salaries! They don't dare bite the hands that feeds, and women are luckily wising up to it.
If this doctor gets convicted, it will be because of the false pretenses he allegedly used. He is also only being charged by the federal government which is more liberal and if it were up to the state government of Texas this person never would have been charged. The situation is far more dire that this feel-good idea that there's real enforcement over this sort of thing when the reality is there explicit loopholes written into the laws to allow it.
You seem very confident in your answer, but the actual text doesn’t seem to match your assertions?
https://www.hhs.gov/hipaa/for-professionals/breach-notification/index.html
But they cited ChatGPT. Surely that should lend them some authority, right?
You're either partly right at least or I'm at least not up to date on things. It looks like there are recent additions to the rules based on the abortion case Dobbs and in addition, some of the proposed changes I read about in an article may not have been added in. Many people were complaining about HIPAA preventing them from finding out about family members who were hospitalized and there were discussions about changing things, but you may be right and none of those changes were incorporated into the actual HIPAA rules.
When I read about proposed changes to HIPAA, I figured they would be passed because it seems like the trend is erosion of individual privacy always in the interest of whatever the government says, and I didn't verify everything prior to my reply.
Good catch. It appears at least initially I'm wrong and you're right. I'm going to research it more later, but it likely won't change things.
Also to clarify, under the rules, certain actions may not constitute a breach to begin with and therefore the breach rules may not apply and also the exceptions may not apply.
The big difference is that all those exceptions only apply to an authorized party, i.e. a health care provider authorized to care for the patient. In this case, the doctor in question was never authorized - none of the patients were in his care.
good point
It looks like there are updates to HIPPA based on concerns about Dobbs, so I am probably wrong overall.
But:
https://www.hhs.gov/hipaa/for-professionals/faq/488/does-hipaa-permit-a-doctor-to-discuss-a-patients-health-status-with-the-patients-family-and-friends/index.html
"Even when the patient is not present or it is impracticable because of emergency circumstances or the patient’s incapacity for the covered entity to ask the patient about discussing her care or payment with a family member or other person, a covered entity may share this information with the person when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. See 45 CFR 164.510(b)."
i may not be wrong after all?
https://www.law.cornell.edu/cfr/text/45/164.510 (3) Limited uses and disclosures when the individual is not present. If the individual is not present, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the individual's incapacity or an emergency circumstance, the covered entity may, in the exercise of professional judgment, determine whether the disclosure is in the best interests of the individual and, if so, disclose only the protected health information that is directly relevant to the person's involvement with the individual's care or payment related to the individual's health care or needed for notification purposes. A covered entity may use professional judgment and its experience with common practice to make reasonable inferences of the individual's best interest in allowing a person to act on behalf of the individual to pick up filled prescriptions, medical supplies, X-rays, or other similar forms of protected health information.
It doesn't seem like this exception can be waived. What are emergency circumstances or incapacity? What if I don't want anything disclosed based on someone else's professional judgment?
I just still think there is way too much leeway to allow things to be shared based on the ambiguous language of the text.
*HIPAA