--- In hipaaems@yahoogroups.com, "Will Dunn" <dunnww@...> wrote:
>
> Hello everyone.
>
> I am (relatively) new to an agency that does not leave field patient
> care reports at the hospital once care has been handed over. I
> complained about this for a variety of reasons.
>
> I am told that there was an instance in the past where following a
> formal records release from the hospital for purposes of litigation,
> our PCR turned up--a surprise since there had been no formal records
> request from us.
>
> I have been under the impression that once we left that PCR with the
> hospital it's part of the medical record.
>
> The management here, after an opinion from our legal counsel, supports
> the practice of not leaving PCRs with the hospital since we know they
> could release it without patient consent, a HIPAA violation, except in
> the instances where it is required by law.
>
> I believe that this practice isn't doing the patient any favors, and,
> perhaps, contributing to worse patient care downstream.
>
> Anyone have any thoughts?
>
> Thanks very much.
>
> --wwd
>
Hi, Will. Welcome to the group!

I agree that not leaving the PCR at the hospital could work to the
detriment of the patient. Docs in my area probably don't use the PCR
much, but they do use them. We get an occasional call from the
hospital when the PCR doesn't show up, especially from inpatient units
like ICU.

Where is your medical director in this discussion? Maybe he/she can
bring some weight to bear.

I probably should add this next statement to the group's home page. I
am not a lawyer, and I suspect most list members won't be either.
Even the lawyers that might choose to join here probably will tell you
their response is not legal advice for a specific situation. So your
own legal counsel's guidance is what you should follow. They have to
defend you if they're wrong, so presumably they will have researched
and considered the issue thoroughly before rendering an opinion.

Having said that, I don't see a HIPAA issue with leaving a PCR at the
hospital. It serves a legitimate treatment purpose, and we never want
to let HIPAA stand in the way of treatment. Once we turn it over it
becomes part of the hospital's medical record. If the hospital gets a
subpoena for the record, then they must comply, assuming the subpoena
meets HIPAA requirements for patient notification and applicable state
laws. That is one of several occasions where HIPAA allows release of
PHI without patient authorization. (FYI, there is a subtle but
significant difference between the terms "authorization" and "consent"
in HIPAA. But that's for another day.) If the hospital follows all
laws in the process, obviously everyone is OK legally. If they're
not, it's their record and their HIPAA violation, not yours, IMHO.

What do your state EMS regulations and state law have to say? I would
hope your attorney considered them. If your state's laws are more
stringent in restricting disclosure, then they prevail over HIPAA.
(HIPAA prevails if it is more restrictive.) EMS regulations may have
a say in whether you leave a PCR. In Virginia, the regulations
require a PCR copy to be delivered to the ER within 24 hours of the
patient's delivery.

Hope that helps. Others?

Jim