Is Saying Someone Died a HIPAA Violation?
In answer to the question is saying someone died a HIPAA violation, it depends on who is making the statement, who the statement is made to, and what other information is disclosed with the statement. Saying someone died can be a HIPAA violation, but – as this blog discusses – in most cases it is not.
Among other purposes, the HIPAA Privacy Rule protects the privacy of individually identifiable health information relating to the past, present, or future health condition of an individual. Organizations subject to the HIPAA Privacy Rule – and their workforces – must comply with this requirement with respect to a deceased individual “for a period of 50 years following the death of the individual”.
However, not all organizations are subject to the HIPAA Privacy Rule. If, for example, an employee of a private nursing home which does not qualify as a HIPAA “covered entity” revealed somebody had died, it is not a HIPAA violation because the nursing home is not required to protect the privacy of individually identifiable health information (Note: although this might not be a violation of HIPAA, disclosing private information of this nature may violate state privacy laws in some circumstances).
Even when an organization is subject to the HIPAA Privacy Rule, it is not automatically the case that saying someone died is a HIPAA violation. “Covered entities” are permitted to disclose individually identifiable health information to specific people, subject to the disclosure being limited to the minimum necessary to achieve the purpose of the disclosure, and subject to any prior expressed wish of the deceased relating to what information can be disclosed. Healthcare providers should receive HIPAA training on permitted disclosures of this nature.
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Who Can Be Told Someone Has Died Under HIPAA?
The HIPAA Privacy Rule stipulates who can be told when someone has died in sections §164.510(b) and §164.512(g). The first section allows covered entities to disclose information about deceased individuals to family members, other relatives, close personal friends, or any other individual identified by the deceased individual while they were alive. All disclosures to people in this group are subject to the verification requirements of §164.514(h).
Persons or entities that were involved in the deceased person´s care or payment for health care can also be told the patient has died under §164.510(b), while §164.512(g) permits covered entities to disclose individually identifiable health information to a coroner or medical examiner to identify the deceased person, determine the cause of death, or other duty as authorized by law. Under this section, covered entities can also tell funeral directors somebody has died.
In all permitted circumstances, the information disclosed must be the minimum necessary to achieve the purpose of the disclosure, and must respect any wishes known by the covered entity prior to the patient’s death. If a patient died (say) due to injuries sustained in a road accident, but also suffered from a lung condition, covered entities are not permitted to disclose the lung condition or any other related treatment or payment for the treatment.
When is Saying Someone Died a HIPAA Violation?
There are not many circumstances when saying someone died is a HIPAA violation and usually violations of this nature only occur when a member of a covered entity’s workforce:
- Discloses information to somebody not permitted by the HIPAA Privacy Rule,
- Discloses more than the minimum necessary information about the deceased, or
- Discloses information it is known the deceased did not want disclosed.
However, it is important to note the HIPAA Privacy Rule generally applies to a deceased person’s health information in the same way as a living person’s health information. In the same way as an individual’s “personal representative” can authorize disclosures of health information not permitted by the HIPAA Privacy Rule on the individual’s behalf when they are alive, a personal representative can do the same when the individual is deceased.
In most states, a deceased individual’s “personal representative” is the next of kin. If the next of kin authorizes a disclosure to somebody not permitted by the HIPAA Privacy Rule, a disclosure of more than the minimum necessary information, or a disclosure of information the deceased did not want disclosed, these events are no longer HIPAA compliance violations. If you are still uncertain about when is saying someone died a HIPAA violation, you should seek professional compliance advice.
