Confidentiality and the HIV positive client

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Confidentiality and the HIV positive client Allison J. Rice Supervising Attorney Duke AIDS Legal Project September 18, 2008

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Confidentiality and the HIV positive client. Allison J. Rice Supervising Attorney Duke AIDS Legal Project September 18, 2008. Confidentiality: What’s at stake?. There are Positive & Negative effects of disclosure of HIV status - PowerPoint PPT Presentation

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Page 1: Confidentiality and the  HIV positive client

Confidentiality and the HIV positive client

Allison J. Rice Supervising Attorney

Duke AIDS Legal Project

September 18, 2008

Page 2: Confidentiality and the  HIV positive client

Confidentiality: What’s at stake?

There are Positive & Negative effects of disclosure of HIV status

Goal: To the extent possible, the person with HIV should decide who gets information

Reality: There are limits to the patient’s right to control information about HIV

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Potential Consequences of Disclosure

Rejection, embarrassment, ostracism, harm to relationships, social isolation, emotional rejection, threats to personal safety

Same as above for client’s children Discrimination – job, housing, public services,

insurance, education, etc. One person tells another – further breaches of

confidentiality & above consequences Potential loss of custody of child

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Potential Benefits of Disclosure

Better access to services, health care Emotional & social support Possible job accommodation Public health benefits (Compliance with

control measures, improved health)

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Sources of Law

North Carolina Rules of Professional Conduct, 1.6 HIPPA (Health Insurance Privacy & Portability Act)

(Privacy Rules: 45 CFR Part 164) Americans with Disabilities Act, 42 U.S.C. § 12101 et

seq. North Carolina laws

Control Measures, 10 NCAC 41A Confidentiality law, NCGS §130A-143 Medical malpractice N.C. “Common” Law (“Torts”) N.C. Criminal Law

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Lawyer’s Obligation of Confidentiality

Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information

acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

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Heightened confidentiality

Go beyond standard client confidentiality procedures Practices to protect confidentiality of HIV information

Never assume client’s friends/family know about HIV Even if client has given the name of someone as a witness,

don’t assume the witness knows about the HIV. ALWAYS ask the client

Disability third party witness; potential standby guardian Be careful with any paperwork in your office that references HIV

status Don’t refer to HIV in correspondence unless authorized by client

(explicitly or impliedly) Be extra careful in discussing HIV with other staff members Train staff about HIV stigma, procedures to protect

confidentiality,

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Exceptions to Confidentiality

(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:

(1) to comply with the Rules of Professional Conduct, the law or court order;

(2) to prevent the commission of a crime by the client;

(3) to prevent reasonably certain death or bodily harm;

(4) to prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services were used;

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So, what about this?

You are representing a client in a disability case. The client has a partner with whom he’s living. You ask the client about having the partner as a witness at the hearing and the client reveals that he hasn’t told his partner about his HIV.

What do you do?

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Comments to MRCP 1.6

[6] . . . Paragraph (b)(2) recognizes that a lawyer should be allowed to make a disclosure to avoid sacrificing the interests of the potential victim in favor of preserving the client's confidences when the client's purpose is wrongful.

Similarly, paragraph (b)(3) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.

Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.

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Control Measures - HIV

10A NCAC 41A.0202:

(1)Infected persons shall:a) Refrain from sexual intercourse unless

condoms are used…..

*****

e) Notify future sexual intercourse partners of the infection;

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NCGS § 130A-25

“A person who violates a provision of this Chapter or the rules adopted by the Commission or a local board of health shall be guilty of a misdemeanor.”

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Unavoidable Disclosures

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North Carolina Public Health Law Public Health Laws – Gen Statutes Ch 130A,

Administrative Code: 10A NCAC 41A Confidential Testing Testing requires informed consent Names-based reporting to the State Public Health

Department (name address, demographics) Public health investigation and contact tracing Mandatory notification of spouse and partners Mandatory control measures for infected persons

The name-based system and contact tracing contribute to fear and reluctance to test

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Failure to disclose to partners:

Failure to abide by control measures is misdemeanor punishable by up to 2 years in prison, NCGS § 130A-26

Potential for other criminal charges for unprotected sex, spitting, etc. Example: In a court-martial, an HIV+ Army Private

pled guilty to assault and other charges based on having unprotected sex with a 17-year-old. (November 2007)

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When HIV information can legally be sought and considered

Life insurance: Insurer can ask. Applicant must answer

truthfully. Mostly likely will be denied if HIV+ Individual health insurance:

Plan can refuse to cover or have high premiums

(but not employee group health insurance) Group insurance – can’t refuse coverage

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Employer Medical Inquiries

ADA: 42 U.S.C. § 12112(d) 29 CFR §§ 1630.13, 1630.14 EEOC Enforcement Guidance Health information can only be requested

after job offer if required of all employees in the class If business necessity If employee is asking for a “reasonable accommodation”

Information obtained: 29 CFR 1630.14(d)(1) “shall be collected and maintained on separate forms

and in separate medical files and treated as a confidential medical record”

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Privacy Protections

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Confidentiality Law in NC

“All information and records, whether publicly or privately maintained, that identify a person who has AIDS virus infection . . . Shall be strictly confidential. The information shall not be released except under the following circumstances…”

NCGS §130A-143

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Penalty for violation of NC law

Misdemeanor (NCGS §130A-25) “A person who violates a provision of this

Chapter….shall be guilty of a misdemeanor.” Enforcement problems

District Attorney must agree to prosecute To my knowledge, this misdemeanor has never

been prosecuted in NC

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HIV in Schools:

No requirement to tell school or day care about HIV, but doctor must inform local health director if child poses significant risk of transmission (e.g. open sores, biting) (10A NCAC 41A.0202 (3))

If school is informed, information should only be shared on a “need to know” basis.

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Federal Laws – HIPPA

Who is covered by HIPPA? Health care providers (doctors, nurses, other

employees) that transmit info electronically Some Ryan White grantees may be covered – e.g. if you

submit to Medicaid Health insurance plan

Any person or organization that provides or pays cost of medical care, including Medicare, Medicaid, HMO, PPO

Health care clearinghouse Organizations that process data or transactions

“Business Associates” of covered entities also have to agree to keep information private

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What does HIPPA do?

Limits disclosure of “individually identifiable health information” Includes info in paper, electronic, or oral form Includes information that was created or received from another

source Relates to physical or mental health, condition, or payment for

health care Identifies a person, or can be used to identify a person

Allows certain disclosures without patient’s consent: Among health care providers To health insurance companies for claims documentation Public health Research uses

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Key Requirements

Allows uses or disclosures of health information incidental to providing medical care

As long as: Only “minimum disclosure” necessary “Reasonable safeguards” are in place to protect

information Definition of “reasonable safeguard” leaves wide open what

is reasonable – not clear whether this rule will have any teeth

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What complies with standards?

Providers can leave phone messages on answering machine or with family members But use professional judgment to assure that such

disclosures are in best interest of individual and that information is limited

Can mail appointment or prescription refill reminders to patient’s homes

But: if patient has requested communication in confidential manner (eg alternative means or location) request must be accommodated “if reasonable”

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HIPPA Compliance

Can use patient sign-in sheets or call out names of patients in waiting rooms But must have reasonable safeguards No medical info displayed that’s not necessary for the

purpose of signing in. Can place patient charts on exam room door

As long as reasonable and appropriate measurers to safeguard information, e.g., limiting access to certain areas, placing chart in box with front cover facing wall.

Can put patient’s name on door of hospital room

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HIPPA Compliance

Offices don’t have to be soundproof Consider privacy vs patient care, financial burden Reasonable:

Pharmacies – ask waiting customers to stand back a few feet from counter used for patient counseling

Curtains, screens, dividers may be reasonable Providers can talk to one another – eg at nursing

station, in semi-private hospital room, Reasonable precautions:

Lowered voices, talking apart from others.

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Enforcement of HIPPA

Complaint to provider/health plan Complaint to the Office of Civil Rights,

Department of Health & Human Services http://www.hhs.gov/ocr/hipaa/ Complaint form in materials and available over

internet (and at end of these materials) Must be made within 180 days of learning of violation

(unless good cause shown) Penalties = fines of up to $100 per incident (paid to

government, not to patient) up to $25,000 per person per year per violation.

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Tort remedies

If health care provider discloses, could sue for medical malpractice

Other Torts No tort for invasion of privacy by public

disclosure of private facts. There is a privacy tort for intrusion into

seclusion Available tort theories: negligent or intentional

infliction of extreme emotional distress

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Obstacles to Legal Recourse

Further invasion of privacy through filing lawsuit or making complaint

Fear of alienating important resources, e.g. health care or service provider, DSS, etc.

Availability of lawyers Time & cost of legal help, especially lawsuit. Inadequacy of remedies –

have to have severe harm, which can be documented difficulties of proving case – her word against his word Can’t put the cat back in the bag

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To tell or not to tell: What we advise clients

Short answer: From a legal standpoint, when in doubt, don’t tell

there are some protections for misuse of info re HIV+ status, or discrimination against person with HIV, but

protections are few, weak, and probably will take a lawyer to enforce – if they can be enforced at all.

Enforcement likely to result in further disclosure

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Summary: Protecting Privacy

Clients must understand customs and practices of medical personnel re privacy –

Adjust expectations; request special confidentiality measures re HIV

limit disclosure to absolutely those necessary – trusted friends, relatives, providers, public health officials, legal requirements

don’t disclose to employer unless seeking accommodation under ADA or legally required (e.g. health care workers doing exposure prone procedures), or part of legal medical inquiry by employer

make timely complaints under HIPPA, ADA, when violations occur

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What lawyers can do for HIV+ clients

Challenge those in charge of agency/facility privacy policies to go beyond HIPPA requirements in safeguarding sensitive medical information such as HIV+ status.

Help clients understand the risks of disclosure and counsel to make the right disclosures in a safe way

For disclosures by health care providers: HIPPA complaint & letter to health care provider

Seek discipline for employees involved Policy changes Training for staff

Disclosures in employment: If appropriate, EEOC complaint

Consider tort theories if serious injuries Others - Stern letter from lawyer to person disclosing

Reference criminal statute, tort law

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Contact Information

Allison RiceSupervising AttorneyDuke AIDS Legal Assistance ProjectBox 90360Durham, NC 27708

(919) [email protected]