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MAX Facts: Patient's HIPAA Privacy Notice
2/23/04
Provided by
Kendra S. Kleber JD
President, Director of Legal Services
Michigan Advocates Exchange, Inc.
Since HIPAA took effect on April 14, 2003, each of your health care providers
(including dentists) should have provided you with a Privacy Notice. If you read
it, you would discover the ways that the HCP will "use" your protected health
information WITHOUT asking your permission.
Using your health info for "operations, payment and treatment" without your
permission is okay, according to HIPAA. This means that the HCP can submit
claims to your insurance, or review your records for quality assurance, or rely
on your data in an internal health care training or disciplinary function. These
things are fine under HIPAA.
PROBLEM: I have not yet seen a HIPAA Privacy Notice, however, that recognizes
that the Michigan HIV confidentiality law is more strict than HIPAA is, and I
think that is a problem. If your HCP treats all of your health information the
same, it is quite possible that information about HIV, AIDS or even your mental
health could be released in violation of Michigan state law.
SOLUTION: Here's a surprise: I have one. (Below to cut and paste) is a
letter for you to sign, date and give to your health care providers that puts
them on notice that you are paying attention, and that they may not release
information about you that refers to HIV, AIDS or your mental health. In fact,
they may not even release the letter.
SUGGESTION: Every single person in Michigan should print this out, sign as many
copies as they have health care providers, and give it to them. The HIV
confidentiality law applies to everyone, regardless of HIV status, and if every
person were to make sure that this letter were on file with their doctors,
HIV-positive or not, then it might help reduce a little stigma.
If you have any questions about this letter, about HIPAA, or about whether you
really need to be concerned about your own privacy, call and ask Michigan
Advocates Exchange (MAX):734-484-6900.
P.S. Ann Fisher at the AIDS Legal Council in Chicago started this project,
and it is (slowwwwwly) sweeping the country. There are versions written already
for many other states, and if you contact the CARE Act Title II-funded legal
services provider in a particular state (assuming there is one) you can probably
track it down. If that doesn't work, drop me a note and I will post a query and
try to track it down for you.
You may contact the author at
kkleber@positiveoutlook.org
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TO MY HEALTH CARE PROVIDER:
I have received your notice telling me when you may disclose my personal medical
information. Your notice does not mention whether or not you think you can
disclose information regarding my HIV/AIDS status or my mental health status.
I am writing to remind you that HIPAA provides that state laws which are more
protective than HIPAA are still in force, and take precedence over HIPAA. 45 CFR
160.203 provides that HIPAA protections do not replace state laws that are "more
stringent" than HIPAA's own requirements.
Both the Michigan HIV Confidentiality law (MCL 333.5131 et seq) and the Michigan
Mental Health Code (MCL 330.1100 et seq.) provide more protection than HIPAA for
particular types of protected health information. As a result, health care
providers must continue to comply with the provisions of those laws.
In particular, both laws require that information about the diagnosis or
treatment (of HIV/AIDS or mental health) may not be disclosed without a specific
written consent from me, explicitly authorizing the disclosure of the
information.
In fact, this letter falls within the confidentiality protections because it
creates the implication that there is information about HIV and my mental health
in your records. This letter is therefore protected by these laws as well, and
should not be released to any other party or entity.
Both laws clearly provide penalties for health care providers who disclose
information without specific consent.
Please note that, regardless of the contents of the privacy notice which you
have sent or given me, and regardless of any revisions you make to that privacy
notice in the future, you may not disclose any information pertaining to HIV or
AIDS including the fact that I may have been tested for HIV, or information
about my mental health, without my explicit and express written permission.
Thank you for continuing to respect my privacy in these important matters.
Signed,
date:
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