While writing “The Ambulance Service Guide to HIPAA Compliance – Second Edition,” as well on a few occasions since then, we have internally debated whether patient refusal situations require covered entity ambulance services to furnish a Notice of Privacy Practices (NPP) and attempt to obtain a signed acknowledgment from persons who refuse care. This continues to be a “frequently asked question” of us under the HIPAA Privacy Rule.
The regulations (Section 164.520(c)(2)) say that a covered entity health care provider with a “direct treatment relationship” must furnish its NPP “no later than the date of the first service delivery” (subject, of course, to the “emergency” exception, which for the sake of argument we will assume is not applicable since we are dealing with a refusal situation in this example). “Service delivery” is rather broad, and, interestingly enough, the regulations did not use the term “health care services” here. It can certainly be argued that a proper refusal interaction is still the delivery of a “service” — it is an emergency health care response, an evaluation (hopefully) and a set of recommendations from the EMS personnel based on their findings.
Furthermore, EMS personnel should generate a patient care report or other refusal documentation, which would certainly constitute Protected Health Information (PHI).
It has been suggested that someone who refuses care is not a “patient” — and therefore that a HIPAA-covered ambulance service therefore need not furnish their NPP to such a person. The question of “who is a patient” is much-debated in EMS (and, incidentally, was a question that we undertook to address in an article on MergiNet.com titled “Who Is a Patient? A Commonsense Take on Consent, Refusals, and Negligence in EMS.” While in that article we made the argument that persons who refuse care might indeed not be classified as “patients,” we also argued that the question may really be moot since the documentation issues don’t stop with that determination.
Also, add this to the argument: the mere fact that EMS care or services were not requested does not necessarily mean that the person is not a “patient.” It is often the case in health care where providers render services to patients involuntarily under several legal premises (e.g., implied consent, persons in custody, mental health commitments, etc.) so it would not seem that “refusing” care versus “vountarily accepting” services is necessarily the deciding factor either.
In short, we have always advocated that EMS providers in a refusal situation should obtain a patient refusal signature whenever possible. While it is debatable, it appears that the HIPAA Privacy Rule certainly can be read to require that an ambulance provider furnish an NPP to and make a good faith attempt to obtain a signed acknowledgment of receipt from a person who refuses care after an evaluation. Providing the NPP and attempting to obtain the signature doesn’t pose that much of an additional burden under the circumstances, and there is no reason under HIPAA that you can’t include the NPP acknowledgment language, such as “I acknowledge receipt of ABC Ambulance Service’s Notice of Privacy Practices,” directly on your refusal form in order to minimize the additional paperwork in a refusal situation.
For more information from Page, Wolfberg & Wirth, LLC about effective documentation, visit the Tip of the Week Archives for previous Tips on documentation and patient refusals.
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