I'm working in the lab of a large hospital while waiting to start the nursing program at my local community college this fall.
I was on phlebotomy tonight and before one of my draws the patient's RN pulled me aside outside the room (in the hall) and told me to "be careful because she's HIV positive." Another phlebotomist related that the RN had also advised him of the patient's HIV status before he drew the patient earlier in the evening.
As a phlebotomist, you'd have to be point-blank stupid not to approach every draw as if the patient had a blood-borne pathogen. That's why we have things called personal protective equipment and universal precautions. A patient's HIV status is and should be irrelevant when it comes to drawing blood since you should be taking the same degree of precaution with every draw that you do.
I believe that the RN needlessly compromised the patient's right to confidentiality, especially with such a highly confidential diagnosis. In addition to what seems to be to be a serious breach of ethics on the part of the RN, it also sounds like a big, glaring HIPPA violation.
I'm not even in RN school yet and it's setting off alarms with me. Am I off base in my assessment of the situation? I'm seriously considering reporting it to our compliance officer, my motivation not being to "nail" the RN, but rather to take advantage of the situation as a teaching opportunity for the RN, and also advocate for the patient who probably has no idea that her confidentiality was breached.
Any thoughts from you seasoned professionals would be most appreciated!
That being said, in today's world, anyone choosing not to use condoms is responsible for the outcome of that decision. I have a responsibility to take care of my own body, and just as I choose whether or not to smoke tobacco, eat fast food, or sit in front of the TV rather than go for a walk, I choose whether to use protection when having sex, and I am the one accountable for the results of those decisions, whether they be COPD, CAD, or HIV.
i suppose you have greater faith than me in people acting responsibly.
i'm just thinking aloud:
how do i know my if my partner is going to disclose his hiv status to me?
sure, in an ideal world he would.
but he's not under any legal obligation to do so.
and suppose i'm on birthcontrol and he has shared his sexual hx and it seems ok not to use condoms, then dang it, i would rather not.
Letting someone know about a patients HIV + status is a professional courtesy that healthcare workers extend to each other for extra precautions. BUT it is like the OP stated it is a HIPAA violation so its a double standard . I guess who ever discloses this information about the patient is at risk for violating HIPAA , but if they are aware of this then they carry the responsiblity of possibly being written up or whatever there policy is at the hospital.
how do i know my if my partner is going to disclose his hiv status to me? sure, in an ideal world he would. but he's not under any legal obligation to do so. and suppose i'm on birthcontrol and he has shared his sexual hx and it seems ok not to use condoms, then dang it, i would rather not. and, a yr down the road i find out i'm hiv +... because he didn't have to tell me. does my question make any more sense? leslie
You don't know if he'll disclose his HIV status - just like you don't know if he'll disclose his hepatitis status, his chlamydia/untreated gonnorhea/syphilis status, his alcoholism, the Huntington's that runs in his family and he has (or hasn't been tested for), or the psychotic ex-girlfriend who's out of jail after maiming the last woman he took up with.
If you're fortunate, you'll be in a relationship where honesty, fidelity and trust are key components. If not, HIV isn't going to be the only thing you have to worry about and it's certainly not the most likely negative repercussion of hooking up with him.
Say there is a law about disclosure - does that mean your boyfriend's name's on a website if he's positive, so you can check his status for yourself? Or do you have to register for some kind of partnership which allows you access to his status? What about if, when you meet, he's seronegative and becomes positive because he's cheating or just because it takes a while to seroconvert?
The upshot? You take a calculated risk. And if you're not convinced that you've both fully disclosed your histories and that you're both monogomous, you use barrier contraception. And regardless of HIV, I think anyone who doesn't already do this is asking for trouble.
Letting someone know about a patients HIV + status is a professional courtesy that healthcare workers extend to each other for extra precautions. BUT it is like the OP stated it is a HIPAA violation so its a double standard . I guess who ever discloses this information about the patient is at risk for violating HIPAA , but if they are aware of this then they carry the responsiblity of possibly being written up or whatever there policy is at the hospital.
That's what folks here are not getting. "Need to know" is not a matter of your personal opinion. The rights of HIV+ persons to keep that information private are dictated by LAW. By violating that right, you are breaking the law.
...and I consider "need to know" ANYONE who is working with that patientt that is performing care where a transmission can occur...ie, taking blood.
You have a right to know if you are at risk or at potential risk for addional exposure.
The next thing you'll be posting is that if there is an isolation precaution marked on the door that it isn't your concern if you are a lab person if they have MRSA or TB.
Keep in mind that HIPAA DOES NOT go into great detail on what is considered a "need to know" basis...it is subject to interpretation PER FACILITY...so on the same note, just because you think it's a violation doesn't automatically make it one.
Now, if someone came in, let's say, to do an x-ray...it is a REASONABLE expectation that body fluids will not be spilled, therefore the X-ray tech doesn't have a "need to know".
ok lets give examples of the law since people are not comprehending.
for example - michigan
general rule: "all reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under section 5114a, that are associated with the serious communicable diseases or infections of hiv infection and acquired immunodeficiency syndrome are confidential. a person shall release reports, records, data, and information described in this subsection only pursuant to this section." michigan compiled laws 333.5131(1). (see a copy of the law
this doesn’t say anything about whether the hiv status is positive or negative. both are protected, as is the status of having been diagnosed with aids.
exceptions to michigan's confidentiality statute:
written permission. an authorization from the subject must include plain language that says that information related to hiv/aids is to be released. (note this same requirement exists for an authorization that is supposed to permit disclosure of substance abuse or mental health treatment information.)
partner notification
child protection reports
certain criminal offenses involving mandatory hiv testing.
emergency first responders have the right to request hiv testing of a patient if they are exposed during a rescue in a way that makes the risk of hiv transmission medically reasonable. (if transmission is unlikely, like if my blood drips on your loafers while you pull me out of my wrecked car, then this exception does not apply.)
court order or subpoena, if the court holds a hearing and finds that the hiv information is relevant to the matter, can not be obtained any other way, and the need for disclosure outweighs any potential for injury to the hiv-infected subject.
de-identified information about hiv can be disclosed to the state legislature for budget-setting purposes.
a single designated school district employee may be told the hiv status of an hiv-positive student if it is necessary to prevent the risk of transmission to other students.
child placement: a facility director may be told the hiv status of a minor resident if it is necessary to care for the child.
a treating physician must disclose that a deceased person is hiv-positive to the funeral home director who has accepted the body.
safe harbor provision: any person can tell the authorized hiv program representative of a local health department if it is necessary to protect the health of an individual, or to care for a patient, or to prevent the risk of transmission.
penalties for violating michigan's hiv confidentiality statute.
civil: the subject can sue for actual damages or $1,000 per disclosure, plus costs and reasonable attorney fees.
criminal: the local prosecutor (or the attorney general - mcl 333.1299) can investigate and charge the person who talked with a misdemeanor, punishable by up to a year in jail and/or up to a $5,000 fine.
that is just an example. almost every state has this kind of law. we know that hipaa prevents you from spreading this information. you don't get to use personal judgment as to who needs to know what. only a covered entity such as your hospital gets to decide that and then only within the framework of hipaa and relevant state laws.
as the michigan law states and the other state laws are similar only certain people need to know. who those people are are not decideed by nurses and phlebotomists. your belief as to what personal rights you have are irrelevant.
spreading 'data' and 'information' related to someone's hiv/aids status is a crime. that makes you a criminal. as we all know... criminals should have no place in nursing. i wouldn't hesitate to believe that when data comes back showing that hipaa policies are not being followed on a large scale and law suits start hitting major hospitals that states will start putting these crimes on the list of crimes barring people from being nurses.
I totally agree with you it is breaking the law if I were patient and had found out that certain information about my personal health had been disclosed to the whole staff that was taking care of me . I would sue them for violating my rights as a patient. It is unethical to disclose someones HIV status if they wish to keep it private !!!!
But on the other side of the fence the staff feels they should be informed so they as group can be cautious and take the necessary steps to prevent a accident from occuring a needle stick , fluid may squirt out and the list goes on........
BUT to be clear your right it is BREAKING the law and should not be taken lightly under any circumstances!
I just can see understand from both perspectives its a double edged sword ya know?
I totally agree with you it is breaking the law if I were patient and had found out that certain information about my personal health had been disclosed to the whole staff that was taking care of me . I would sue them for violating my rights as a patient. It is unethical to disclose someones HIV status if they wish to keep it private !!!!
But on the other side of the fence the staff feels they should be informed so they as group can be cautious and take the necessary steps to prevent a accident from occuring a needle stick , fluid may squirt out and the list goes on........
BUT to be clear your right it is BREAKING the law and should not be taken lightly under any circumstances!
I just can see understand from both perspectives its a double edged sword ya know?
I think the difference is WHO is told.
Funeral directors...that's stupid. Shouldn't they be taking "standard precautions" as well? Not everyone that is received in their care has been TESTED for HIV.
Emergency first responders...that's also stupid because if it's an emergency, chances are you aren't going to know the status of your patient until AFTER a spill has already occurred.
...and notice that this same law went to great lengths to PROTECT STATE health care workers? It was in plain English, "or to prevent transmission". They didn't even make a distinction of WHO in the health department could be told....it's so vague it could be anyone from the Director to the secretary.
Heck...shouldn't health department workers be using standard precautions as well?
If the nurse told the entire phlebotomy class, then that is a clear HIPAA violation...but the person taking the blood needs to know.
I also find it odd that it never said that healthcare workers in a normal hospital setting can be informed if working directly with the patient (they are not employed by the state) or that a HOSPITAL healthcare worker can request an HIV test if exposure occurs.
ok lets give examples of the law since people are not comprehending.
for example - michigan
general rule: "all reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under section 5114a, that are associated with the serious communicable diseases or infections of hiv infection and acquired immunodeficiency syndrome are confidential. a person shall release reports, records, data, and information described in this subsection only pursuant to this section." michigan compiled laws 333.5131(1). (see a copy of the law
this doesn't say anything about whether the hiv status is positive or negative. both are protected, as is the status of having been diagnosed with aids.
exceptions to michigan's confidentiality statute:
written permission. an authorization from the subject must include plain language that says that information related to hiv/aids is to be released. (note this same requirement exists for an authorization that is supposed to permit disclosure of substance abuse or mental health treatment information.)
partner notification
child protection reports
certain criminal offenses involving mandatory hiv testing.
emergency first responders have the right to request hiv testing of a patient if they are exposed during a rescue in a way that makes the risk of hiv transmission medically reasonable. (if transmission is unlikely, like if my blood drips on your loafers while you pull me out of my wrecked car, then this exception does not apply.)
court order or subpoena, if the court holds a hearing and finds that the hiv information is relevant to the matter, can not be obtained any other way, and the need for disclosure outweighs any potential for injury to the hiv-infected subject.
de-identified information about hiv can be disclosed to the state legislature for budget-setting purposes.
a single designated school district employee may be told the hiv status of an hiv-positive student if it is necessary to prevent the risk of transmission to other students.
child placement: a facility director may be told the hiv status of a minor resident if it is necessary to care for the child.
a treating physician must disclose that a deceased person is hiv-positive to the funeral home director who has accepted the body.
safe harbor provision: any person can tell the authorized hiv program representative of a local health department if it is necessary to protect the health of an individual, or to care for a patient, or to prevent the risk of transmission.
penalties for violating michigan's hiv confidentiality statute.
civil: the subject can sue for actual damages or $1,000 per disclosure, plus costs and reasonable attorney fees.
criminal: the local prosecutor (or the attorney general - mcl 333.1299) can investigate and charge the person who talked with a misdemeanor, punishable by up to a year in jail and/or up to a $5,000 fine.
that is just an example. almost every state has this kind of law. we know that hipaa prevents you from spreading this information. you don't get to use personal judgment as to who needs to know what. only a covered entity such as your hospital gets to decide that and then only within the framework of hipaa and relevant state laws.
as the michigan law states and the other state laws are similar only certain people need to know. who those people are are not decideed by nurses and phlebotomists. your belief as to what personal rights you have are irrelevant.
spreading 'data' and 'information' related to someone's hiv/aids status is a crime. that makes you a criminal. as we all know... criminals should have no place in nursing. i wouldn't hesitate to believe that when data comes back showing that hipaa policies are not being followed on a large scale and law suits start hitting major hospitals that states will start putting these crimes on the list of crimes barring people from being nurses.
i think the majority of persons understand that it is the law.
the dialogue in this thread is mostly all about the ethics of such a law.
the law vs morality debate.
hardly anything in ethics is clearcut 'black and white'.
rn's are educated professionals and do not see this issue as being ' black and white'.
and nor should they. most of them have taken ethics classes and are used to having active debate with others regarding controversial issues.
i am sure most of the rn's on the board don't appreciate being slammed, being called a 'criminal' from a person who is not even a nurse. take some ethics classes and walk a lot of miles in our shoes before you judge us.
I think the majority of persons understand that IT IS THE LAW.
The dialogue in this thread is mostly all about the ETHICS of such a law.
The law vs morality debate.
Hardly anything in ethics is clearcut 'black and white'.
RN's are educated professionals and do not see this issue as being ' black and white'.
And nor should they. Most of them have taken ethics classes and are used to having active debate with others regarding controversial issues.
I am sure most of the RN's on the board don't appreciate being slammed, being called a 'criminal' from a person who is not even a nurse. Take some ethics classes and walk a lot of miles in our shoes before you judge us.
First of all ethics are usually black and white. Ask lawyers.
Secondly while I didn't point out RNs in anyway do you really believe Nursing is the only profession that needs ethics? Please. I really shouldn't point out how silly that is but I must.
A criminal is a criminal. While I am not an RN don't even think about trying to assume that makes you better than me. I did my time in the military, am a veteran and have spent a long time in healthcare. Ethics goes beyond nursing.
What this has to do with 'your shoes' still eludes me. Law makers that made these laws are educated. Judges that uphold them are educated. This country is set up so that judges and organizations that are created for this purpose decide what is ethical. Not some person that may or may not have a dubious sense of reality.
As far as ethics classes I have had the 'theoretical' classes you have had and I have had to practice ethics in an area of the world that doesn't pay attention to ethics or morality.
I never said who should and shouldn't know as that really doesn't matter. The point was under the current law the phlebotomist didn't need to know and your personal feelings notwithstanding I agree with that point. If you want to change the law, go ahead.
The thread also was not so much about the ethics of what the person did but the legality. Please, read an entire thread before 'slamming' someone that isn't even an RN yet.
BTW I didn't mean to thank your thread, but hey, You are an RN already so you must deserve some thanks.(/end sarcasm)
ok lets give examples of the law since people are not comprehending.
for example - michigan
general rule: "all reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under section 5114a, that are associated with the serious communicable diseases or infections of hiv infection and acquired immunodeficiency syndrome are confidential. a person shall release reports, records, data, and information described in this subsection only pursuant to this section." michigan compiled laws 333.5131(1). (see a copy of the law
this doesn’t say anything about whether the hiv status is positive or negative. both are protected, as is the status of having been diagnosed with aids.
exceptions to michigan's confidentiality statute:
written permission. an authorization from the subject must include plain language that says that information related to hiv/aids is to be released. (note this same requirement exists for an authorization that is supposed to permit disclosure of substance abuse or mental health treatment information.)
partner notification
child protection reports
certain criminal offenses involving mandatory hiv testing.
emergency first responders have the right to request hiv testing of a patient if they are exposed during a rescue in a way that makes the risk of hiv transmission medically reasonable. (if transmission is unlikely, like if my blood drips on your loafers while you pull me out of my wrecked car, then this exception does not apply.)
court order or subpoena, if the court holds a hearing and finds that the hiv information is relevant to the matter, can not be obtained any other way, and the need for disclosure outweighs any potential for injury to the hiv-infected subject.
de-identified information about hiv can be disclosed to the state legislature for budget-setting purposes.
a single designated school district employee may be told the hiv status of an hiv-positive student if it is necessary to prevent the risk of transmission to other students.
child placement: a facility director may be told the hiv status of a minor resident if it is necessary to care for the child.
a treating physician must disclose that a deceased person is hiv-positive to the funeral home director who has accepted the body.
safe harbor provision: any person can tell the authorized hiv program representative of a local health department if it is necessary to protect the health of an individual, or to care for a patient, or to prevent the risk of transmission.
penalties for violating michigan's hiv confidentiality statute.
civil: the subject can sue for actual damages or $1,000 per disclosure, plus costs and reasonable attorney fees.
criminal: the local prosecutor (or the attorney general - mcl 333.1299) can investigate and charge the person who talked with a misdemeanor, punishable by up to a year in jail and/or up to a $5,000 fine.
that is just an example. almost every state has this kind of law. we know that hipaa prevents you from spreading this information. you don't get to use personal judgment as to who needs to know what. only a covered entity such as your hospital gets to decide that and then only within the framework of hipaa and relevant state laws.
as the michigan law states and the other state laws are similar only certain people need to know. who those people are are not decideed by nurses and phlebotomists. your belief as to what personal rights you have are irrelevant.
spreading 'data' and 'information' related to someone's hiv/aids status is a crime. that makes you a criminal. as we all know... criminals should have no place in nursing. i wouldn't hesitate to believe that when data comes back showing that hipaa policies are not being followed on a large scale and law suits start hitting major hospitals that states will start putting these crimes on the list of crimes barring people from being nurses.
stanley,
i believe you are confusing apples and oranges with this example. back in the 1980's when aids was a newly recognized, poorly understood and widely feared disease, there was an incredible stigma attached to diagnosis (loss of jobs, housing, custody issues, expulsion from school, etc.), prompting many legislative bodies to enact laws preventing the disclosure of an aids diagnosis. these laws put aids in a class unto itself, and seemingly contradicted standard public health policies requiring disclosure of other stds (with or without patient consent). these laws were intended to prevent the unnecessary sharing of aids diagnosis with those outside of the healthcare system . they were never intended to keep critical information from healthcare providers.
hiv disclosure laws are not the same as hipaa regulations.
I believe you are confusing apples and oranges with this example. Back in the 1980's when AIDS was a newly recognized, poorly understood and widely feared disease, there was an incredible stigma attached to diagnosis (loss ofjobs, housing, custody issues, expulsion from school, etc.), prompting many legislative bodies to enact laws preventing the disclosure of an AIDS diagnosis. These laws put AIDS in a class unto itself, and seemingly contradicted standard public health policies requiring disclosure of other STDs. These laws were intended to prevent the unnecessary sharing of AIDS diagnosis with those outside of the healthcare system caring for the patient. They were never intended to keep critical information from healthcare providers.
HIV disclosure laws are not the same as HIPAA regulations.
You are right. But those said laws still cover 'telling' someone about a patient's HIV status. HIPAA is just an additional law created to cover other situations. HIV/AIDS already had a set of laws such as the Michigan one. It is always good to remember that the Supreme Court not only holds up the intent of the law but also the letter. The intent was different but the letter considers sharing of 'data' and 'information' concerning HIV/AIDS status as a crime.
The stigma is still out there. Just ask nurses that are HIV+.
Recent DOJ internal opinion about Hipaa prosecutions.
a “person who knowingly and in violation” of the “Administrative Simplification” provisions of HIPAA, “uses or causes to be used a unique health identifier,” “obtains individually identifiable health information relating to an individual,” or “discloses individually identifiable health information to another person” may:
(1) be fined not more than $50,000, imprisoned not more than one year, or both;
(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than five years, or both; and
(3) if the offense is committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.
---
Proving the desire to cause malicious harm is actually quite easy. Is it worth it???
leslie :-D
11,191 Posts
i suppose you have greater faith than me in people acting responsibly.
i'm just thinking aloud:
how do i know my if my partner is going to disclose his hiv status to me?
sure, in an ideal world he would.
but he's not under any legal obligation to do so.
and suppose i'm on birthcontrol and he has shared his sexual hx and it seems ok not to use condoms, then dang it, i would rather not.
and, a yr down the road i find out i'm hiv +...
because he didn't have to tell me.
does my question make any more sense?
leslie