The debate over the use of the “ICE” designation is raging in EMS circles. “ICE” is an acronym for “in case of emergency,” and the Internet is buzzing with exhortations to program an emergency contact number and other information into your cell phone under the name ICE, with the intent that it be a universally-recognized mechanism to provide prompt notification to a family member or other designated contact of an ill or injured patient, and perhaps obtain information about a patient’s medical history.
What are the privacy implications of ICE? Although state laws may impact this question, and, of course, state laws may vary, federal HIPAA regulations offer some guidance on this issue. We have seen and heard many interpretations of the HIPAA issue as applied to the ICE debate, and many, in our view, have been inaccurate. Just the same, here is our take. Remember, HIPAA regulations apply only to “covered entities,” which, in the EMS context, generally consist of those organizations that bill electronically for the services they render. The ICE question invokes one of the more convoluted sections of HIPAA, but we will try to reduce it to a somewhat understandable form.
Section 164.510(b) of the HIPAA Privacy Rule governs this issue. First, this section permits covered entities to disclose to a family member, “other relative,” or a “close personal friend” of the individual, or “any other person identified by the individual,” the protected health information (PHI) that is “directly relevant to such person’s involvement with the individual’s care.” This section also permits a provider to disclose PHI to notify a family member, a personal representative of the patient, or “another person responsible for the care of the individual” of the individual’s location, general condition, or death. The rule goes on to state some additional requirements for these types of disclosures, depending upon whether or not the patient is able to make decisions.
If the patient is capable of making medical decisions, the Privacy Rule states that the health care provider must either:
- Obtain the individual’s agreement;
- Provide the individual with an “opportunity to object” to the disclosure prior to making it; or
- Use professional judgment to “reasonably infer” from the circumstances that the individual does not object to the disclosure. What this means in practical terms is that where your patient is conscious and competent, simply ask the patient if they would like you to contact their “ICE” designee. If the patient agrees, there is no HIPAA problem. PWW would recommend documenting that agreement on the patient care report.
On the other side of the coin, the rule also contains provisions for those cases where the patient is incapable of making medical decisions, for instance, because the patient is unconscious, mentally incapacitated or a minor. In these cases, the rules state that the provider may, “in the exercise of professional judgment,” determine whether the disclosure is in the best interests of the individual and, if so, disclose “only the PHI that is directly relevant to the person’s involvement with the individual’s health care.”
Taken together, these sections of the Privacy Rule seem to suggest that an emergency health care provider, acting in good faith, can reasonably infer from the circumstances that a designated ICE contact is someone the patient wishes to have involved in his or her health care in the event of a medical emergency. It is probably also reasonable to infer from the circumstances that the ICE contact is a family member, other relative, close personal friend, legal representative or person involved with the individual’s care. Again, it is impractical to think that an EMS provider could verify these assumptions with certainty at the scene of an emergency, but the Privacy Rule uses terms like “reasonably infer” and “exercise of professional judgment,” making it apparent that there will be times when complete certainty is impossible.
In these cases, it would be hard to argue that an EMS provider attempting in good faith to notify a designated emergency contact person of a medical emergency involving a loved one or close friend knowingly and willfully violated HIPAA. Even if turns out after the fact that the patient didn’t want his or her ICE contact to receive their PHI, and such a PHI disclosure were to result in a complaint to the federal agency that enforces HIPAA, the rule as written provides ample defense to a health care provider who reasonably exercises his or her judgment and acts in good faith.
Of course, nothing in HIPAA, or any other applicable federal law, requires an EMS provider to check a patient’s cell phone and attempt to make contact with the patient’s ICE designee. Moreover, EMS agencies are normally not the ones who make notifications to family members or others that someone was involved in an emergency. That is normally done by law enforcement, hospitals or others involved in the situation. Making notifications, whether to an ICE contact or other third party, should never delay assessment, treatment, transport or other patient care activities. In addition, some have suggested that there are certain risks in attempting to obtain a patient’s ICE contact information, such as the risks of being stuck with a needle in the patient’s pocket when searching for a cell phone. Some have even suggested that cell phones can be triggering devices for explosives or otherwise used as weapons against the unwary.
The bottom line is that the ICE issue should be kept in perspective: having emergency contact information on someone’s cell phone is but one piece of information available to EMS providers on the scene of an emergency. In a sense, it is no different than a bystander giving the same information to the EMS crew. Sometimes time and circumstances permit the providers to act on that information, sometimes they do not. As long as reasonable care is exercised and providers act in good faith, there is no reason under HIPAA or other federal law that an EMS provider cannot make a notification to an ICE contact if they choose to do so.
For other EMS Tips of the Week, visit http://www.pwwemslaw.com/ACTIVE/Tips/TipArchivesDefaultPage.htm.
Courtesy of Page, Wolfberg & Wirth, LLC.
