HIPAA and Advocacy: the Sequel

Our last article concerning HIPAA highlighted the potential for empowering patients by allowing them choice with regard to clergy visits. In order for HIPAA to enjoy the positive fruits of that intention, however, it is important that the spirit in which those protections were conceived be part of HIPAA’s interpretation and implementation as well. This deserves some careful consideration.

Hospitalized patients in today’s healthcare environment are admitted sicker and stay for fewer days than ever before. In order to provide today’s hospital patients with a healing environment, it is important that healthcare practices converge to support patients’ needs for medical, emotional, and spiritual support. Since these sometimes conflict, it is a task fraught with challenges.

HIPAA’s regulations were an attempt to create parity between the patient and the healthcare facility, since the balance of power has traditionally favored the institution over the individual. Whenever institutional power is used to avoid or circumvent practices that benefit patients’ right to dignity and autonomy, it risks doing so at the expense of critical mental, spiritual, and emotional energies patients need for healing.

In terms of local clergy access to patients, the intention of HIPAA was to offer patients a clearly stated opportunity on admittance to ‘opt out’ of the list shown to clergy, thus protecting the patient’s right to disclose/not disclose their hospitalization. When the institutional interpretation of “opting out” involves any form of indirect assent (i.e., burying the question of inclusion in a wordy “patients’ rights” document); piggy-backing the patient’s willingness to identify his/her religious preference with the question “Would you like to see a Chaplain;” or the patient is forced to “opt in” (to declare his/her desire to be on the clergy list rather than simply be given the opportunity to opt out), then the intent of HIPAA has been violated, even if the institution believes it is meeting the letter of the law.

The relational imbalance of power between the patient and the institution becomes particularly skewed if the institution chooses to pursue a purely legalistic interpretation of any regulation, HIPAA included, rather than thoughtfully applying common sense. Complicated rules, intended to protect patient’s rights, are rendered impotent if the spirit of the rules are not followed. HIPAA is a complex set of rules, subject to varying interpretations, and fraught with legal and financial consequences for nearly all healthcare institutions. The ability of the HIPAA Regulations to protect patients’ rights is dependent on all parties pursuing the spirit of these regulations. To date, the rights of patients continue to be highly vulnerable.

Do you have thoughts about advocacy you’d like to share with your colleagues? Send an e-mail to info@PlainViews.org.