This blog is going to contain much more of my opinion
than previous blog posts. I was looking for something to write about, and came
across a story about HIPAA with regards to Organ Procurement Organizations
(OPO). (Healthitsecurity). An ex-employee, Patrick McHahon, claimed that the
New York Organ Donor Network, Inc. had removed patient organs before the
patients were clinically dead. He claimed he was fired because he "blew
the whistle". The company claimed he was fired due to poor performance.
Part of Mr. McMahon's evidence he claimed were evident in the patient's case
files which showed the patients were still alive. He was requesting the release
of the records to prove his case to which the OPO stated due to confidentiality
they could not release the records. They also stated that though the
organizations are not covered by HIPAA, they need to maintain the patients'
confidentiality since they signed memorandums of understanding (MUO) with the
hospitals so they can retrieve pertinent information to help the organ donor
process. If they released the records "it would defeat the purpose of
HIPAA if it were required to comply with plaintiff's request" (McHahon V.
New York Organ Donor Network, Inc. 2016). In this case the plaintiff won the
case with the court stating that since it is not a HIPAA covered entity it must
turn over the records.
This led to me thinking as to why they are not HIPAA
protected. First, how can a hospital release records to an entity not covered
under HIPAA? This is a little easier to understand. In order for an organ donor
group to do its job, it needs vital information about a patient to make sure
that the organ goes into a viable recipient. Having to wait for an
authorization from a family member would waste valuable time since some organs
are only vital for so long. This part makes sense and I completely agree with
this. I think this is why you annotate you are on organ donor on your ID. This
lets hospitals know they already have your approval.
So why aren't organ donors covered under HIPAA then? This
isn't covered too well. From what I have read basically it comes down with the
need for them to know the information to do their job. They can also share
information with the donor family such as the age, health, gender, and sex of
the recipient. With HIPAA they might not be able to provide that information to
the donor. This can help the donors feel a little better knowing general info
about who is being helped. It could also cause issues though if the OPO started
discussing non health pertinent information as it may make the family more
reluctant to donate if the recipient were a different religion for example.
This is where I am conflicted myself. For myself, I am an organ donor, so I
authorize anyone to use my organs. However, someone who may have to decide for
another family member may feel reassured it is going to someone who needs it.
By making an OPO a protected entity they could not give that information
without the recipient family's allowance which may make the family doing the
donation more reluctant to donate. Also by having to wait for the recipient's
approval you are adding more delay to the process. For example, if the
recipient has to say yes then the information is provided to the donor, who
then says no, valuable time was just wasted.
With all that being said I agree with the court's ruling
that the medical records should be allowed. A health care provider may use or
disclose information if and as required by law (42 CFR § 482.45). I believe in
a matter of law no information should be kept private, if it is strictly used
for purpose of the case and only parts that are required. I.e. in this case
only the pertinent info at the time of the patient's death.
References:
Condition of Participation: Organ, Tissue, and Eye
Procurement. (2013). 42 CFR § 482.45.
Health IT Security (2017). Judge Says HIPAA Regulations Do
Not Apply in Organ Donor Case. Retrieved
from: http://healthitsecurity.com/news/judge-says-hipaa-regulations-do-not-apply-in-organ-donor-case
McMahon v. New York Organ Donor Network, Inc. (2016). New
York Supreme Court Op 32707. Retrieved from: http://nycourts.gov/reporter/pdfs/2016/2016_32707.pdf
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