HIPAA & Privacy:

Regulations Impacting Spiritual Care in Health Care

Michele LeDoux Sakurai

Chair, JCAPS

I received a call from a Director of Spiritual Care who had serious concerns about the provision of pastoral/spiritual care in her facility. An administrator in her hospital had informed her that the new HIPAA (Health Insurance Portability and Accountability Act of 1996) regulations restricted chaplains from the bedside, and that chaplains would need permission of the patient before entering that patient’s room. The administrator’s interpretation of HIPAA’s regulations did not take into account the difference between hospital/health care facility employees and guests or business associates of the institution. Basically, this interpretation is incorrect.

The focus of this article is to provide chaplains with a short history and context of patient confidentiality regulations as applied to pastoral care. References to those federal regulations that have the greatest significance for chaplains are included.

Issues of patient confidentiality have been a concern of the federal government for several years. According to the U.S. Department of Heath and Human Services (see http://aspe.hhs.gov/admnsimp/final/pvcfact2.htm):

Congress recognized the need for national patient record privacy standards in 1996 when they enacted the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The law included provisions designed to save money for health care businesses by encouraging electronic transaction, but it also required new safeguards to protect the security and confidentiality of that information. When Congress did not enact legislation after three years, the law required the Department of Health and Human Services (HHS) to craft such protections by regulation.

In November 1999, HHS published proposed regulations to guarantee patients new rights and protections against the misuse or disclosure of their health records. During an extended comment period, HHS received more than 52,000 communications from the public. In December 2000, HHS issued a final rule that made significant changes in order to address issues raised by the comments.

This final rule implements the privacy requirements of the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996. The regulations identified in the final rule focus primarily on transmission and sharing of health care information. Compliance by institutions is slated for 2003.

The final rule distinguishes between staff in the health care entity and those who operate outside the walls of the entity. The impact of the final rule for pastoral care focuses on the parameters by which health care providers may share information with clergy who are not employees of a health care facility. (The following information on Section 160.510 of the Final Rule on Standards for Privacy of Individually Identifiable Health Information is taken from the Preamble, Section II. Section-by-Section Description of Rule Provisions at http://aspe.hhs.gov/admnsimp .)

Under the final rule, we also establish provisions for disclosure of directory information to clergy that are slightly different from those which apply for disclosure to the general public. Subject to the individual’s right to object or restrict the disclosure, the final rule permits a covered entity to disclose to a member of the clergy: (1) the individual’s name; (2) the individual’s general condition in terms that do not communicate specific medical information about the individual; (3) the individual’s location in the facility; and (4) the individual’s religious affiliation. A disclosure of directory information may be made to members of the clergy even if they do not inquire about an individual by name . . . Individuals are free to determine whether they want their religious affiliation disclosed to clergy through facility directories.

The preamble continues:

For example, restricting the disclosure of an individual’s religious affiliation, room number, and health status to a priest could cause significant delay that would inhibit the ability of a Catholic patient to obtain sacraments provided during the last rites. We believe this accommodation does not violate the Establishment Clause, because it avoids a government-imposed restriction of the disclosure of information that could disproportionately affect the practice of religion. (Section 164.510 (a)—Use and Disclosure for Facility Directories.)

HIPAA and the Administrative Simplification subtitle are initiatives of the Department of Health and Human Services (HHS)/Health Care Financing Administration (HCFA).

HCFA grants JCAHO (The Joint Commission on Accreditation of Health Care Organizations) federal deemed status in regard to having and enforcing standards that meet the federal Conditions of Participation in the Medicare or Medicaid certification process. As a result, JCAHO takes seriously the issue of patient confidentiality. With regard to providing spiritual care, the hospital has the duty to provide screening of each patient as a means of determining denominational preference, parish/temple/congregational affiliation, and whether the patient’s faith community can be given information about the patient’s admission. The patient has control of release of information, and without the patient’s expressed permission, the hospital cannot provide patient information to clergy or their representatives. As a result of this emphasis on patient confidentiality, JCAHO has limited the clergy’s access to patient lists.

JCAHO does not extend this limitation to hospital/facility chaplains. JCAHO differentiates between staff in health care facilities and those clergy members who serve congregations. At a recent JCAHO survey in southern California, the survey team asked each of the chaplains if they were employees of the hospital. JCAHO was interested in the chaplains’ employment status, FTE, and training. The survey team also wanted verification that, as members of the interdisciplinary team, chaplains charted in the progress notes of the patient.

Chaplains must become familiar with the laws and regulations that encompass confidentiality. Chaplains may find themselves advocating for their position as members of the interdisciplinary team; understanding the intention of the final rule on Standards for Privacy of Individually Identifiable Health Information is a first step to this advocacy. (More information on this rule is available at http://www.hhs.gov/ocr/hipaa.)

(This article appeared in the NACC Vision, October 2001, Vol. 11, No. 9, page 4.)