What Are The Privacy Laws Regarding Communication Between A Health Care Facility And A Patient’s Family?

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“My mother is in a private care facility for dementia/alzheimers’ patients. The facility recently advised me to bring in Hospice, which I consented to do. Before contacting Hospice, however, I asked (I am power of attorney and health care power of attorney) that my brothers not be contacted. The nursing facility then faxed information to Hospice including contact information for my brothers. Needless to say, they (my brothers) were contacted before I was – and very much against my wishes.

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Is this a violation of the privacy law, and if so, what can I do about it?”

The release of certain information about the patient to unauthorized people may itself be a violation of applicable state or federal medical privacy laws. But the mere fact that someone is in a healthcare facility may itself not necessarily be actionable, especially if the notice was being given to next of kin.

Depending on your state, there may also be laws or regulations governing hospices that may permit (or perhaps even require) the notification of next-of-kin when certain actions are taken. For example, the holder of a health care power of attorney may have rights to make decisions on behalf of a patient, however those decisions don’t necessarily happen in a vacuum. As a matter of public policy, it’s possible that other interested parties may have a right to know certain facts about the disposition of a family member so that they can, if necessary, seek to protect the best interests of the incapacitated patient, or to protect their own rights, by challenging the validity or appropriateness of the actions of the appointed decision-maker.

In addition, under federal law certain information can be disclosed for purposes of payment-related considerations, and knowing the identity of family members who could be held responsible for any unpaid bills is not inconsistent with the hospice’s need to protect its rights to be paid.

It’s possible that the hospice may have erred in failing to contact you first, or perhaps the original facility may have erred in failing to pass along your instructions. But whether there was a privacy law violation would depend on exactly what information they specifically provided to your brothers, and under what legal or procedural basis they would claim the right to have done so. Fitting this specific situation into the protections of federal and state medical privacy laws could be tricky in terms of bringing some kind of enforcement action against the hospice.

I’m sure you have your reasons for keeping information about your mother away from your brothers. But in these final difficult days, trying to find a basis for a lawsuit may not be the most productive use of your resources at this stressful time.

Recommended reading (click on the picture for details):
Internet Privacy for Dummies

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Author: Ray Everett-Church, Esq.

Ray Everett-Church is a privacy and security consultant with PrivacyClue LLC and is co-author of "Internet Privacy for Dummies"

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