Hiding Behind HIPAA

There’s a great New York Times story today  (registration may be required) about how the Health Insurance Portability and Accountability Act, or HIPAA, is both misunderstood and misinterpreted by nurses and other health care professionals. The result is that family and friends of patients frequently can’t get basic information they need and are stymied by a system that seems bent on emphasizing secrecy and confidentiality at all costs.

From the NYT story by Jane Gross: "HIPAA was designed to allow Americans to take their health insurance coverage with them when they changed jobs, with provisions to keep medical information confidential. But new studies have found that some health care providers apply HIPAA regulations overzealously, leaving family members, caretakers, public health and law enforcement authorities stymied in their efforts to get information.

"Experts say many providers do not understand the law, have not trained their staff members to apply it judiciously, or are fearful of the threat of fines and jail terms—although no penalty has been levied in four years. Some reports blame the language of the law itself, which says health care providers may share information with others unless the patient objects, but does not require them to do so. Thus, disclosures are voluntary and health care providers are left with broad discretion."

But here’s the part that really caught my eye in the NYT story: "Susan McAndrew, deputy director of health information privacy at the Department of Health and Human Services, said that problems were less frequent than they once had been but that health care providers continued to hide behind the law. ‘Either innocently or purposefully, entities often use this as an excuse,’ she said. ‘They say "HIPAA made me do it" when, in fact, they chose for other reasons not to make the permitted disclosures.’ "

This kind of thinking is all too common, especially among managers and HR people. Too often they choose to hide behind "rules" that they misinterpret or misuse in an attempt to keep from being completely truthful and honest with workers. Their default position is that they are legally prohibited from talking, when in fact that may not be the case.

I’ve encountered this behavior on many occasions, but one sticks out. A respected longtime employee leaves suddenly and co-workers don’t know why. Senior management and the HR department won’t talk about it, leaving the impression among the remaining workforce that the respected longtime employee may have been fired because they did something terrible. Weeks later, someone finally connects with the departed employee and finds out the real reason for the departure—a health emergency within the departed employee’s extended family. When the word spreads among concerned co-workers, everyone wonders aloud, "Why couldn’t management be a little more open rather than leaving us hanging and thinking the worst?"

It’s a good question I don’t have an answer for. In my book, management does itself no favors by being so secretive. If I were a CEO, I’d push my HR people and senior managers to work as hard as possible to be as transparent and open as possible all the time. There are always some things that need to be kept secret, but the fewer there are, the better the company will ultimately be.

Have a comment on this? I’d love to hear what you have to say. Until we get the comment posting function on this blog operational, send me comments at jhollon@workforce.com. I will publish as many of them as I can.