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What should we do if we are unable to properly inform the patient of the "opt-out" of the facility directory due to the patient's condition?

HIPAA Weekly Advisor, September 12, 2005

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The regulations provide that if you cannot practically provide the opportunity to opt-out of the facility directory listing due to the patient's incapacity or emergency treatment situation, you may use/disclose some or all of the allowed information if such use/disclosure is consistent with a prior expressed preference of the patient that is known to your facility, or if you consider such use/disclosure in the best interest of the patient. In these cases, inform the patient of the use/disclosure as soon as it is practical to do so.

The commentary to the rule encourages you to take the following into account when deciding whether to include some or all of the patient information in the directory:

• Whether disclosing that an individual is in the facility could reasonably cause harm or danger to the individual (e.g., if it appeared that an unconscious patient had been abused and disclosing the information could give the attacker sufficient information to seek out the person and repeat the abuse)
• Whether disclosing a patient's location within a facility implicitly would give information about the patient's condition (e.g., whether a patient's room number revealed that he or she was in a psychiatric ward)
• Whether it is necessary or appropriate to give information about patient status to family or friends (e.g., if giving information to a family member about an unconscious patient could help a physician administer appropriate medications)
• Whether an individual had, prior to becoming incapacitated, expressed a preference not to be included in the directory

Go to Section 164.510(a) Use and Disclosure for Facility Directories of the Bricker & Eckler Web site for more information.

Editor's note: Attorneys from Bricker & Eckler, LLP, answered this question. This is not legal advice. Consult with your attorney for legal matters.

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