Elder Rights and HIPAA Regulations
- Linda D. Pershall, R.N., B.S.N., L.N.C.
Elder abuse, what it is and its prevalence is often clouded by sensationalism. One definition of abuse is a violation of known rights. Two positive steps in prevention of abuse, including elder abuse, are the Patient’s Bill of Rights and the current HIPAA Regulations.
All patients, including the elderly, have rights to quality medical care.
The Patient's Bill of Rights was adopted by the U.S. Advisory Commission on Consumer Protection and Quality in the Health Care Industry in 1998. This bill of rights also pertains to the elderly patient. These rights are again emphasized by HIPAA to which all healthcare providers are currently responsible to adhere.
This is a partial list of the Patient’s Bill of Rights.
- Information Disclosure – The elderly person has the right to accurate and easily understood information pertaining to their health plan, health care professionals, and health care facilities. Allowances must be made for visual and hearing impairments as well as alternate languages.
- Choice of Health Care – The elderly person has the right to select medical practitioners and facilities.
- Access to Emergency Services – Long-term care facilities have the responsibility to provide access to emergency medical care/facilities.
- Participation in Treatment Decisions – The elderly person has the right to know treatment options and to participate in the decisions regarding care. Guardians, family members or designated person may be the decision maker under some circumstances.
- Respect and Nondiscrimination – The elderly person has the right to considerate, respectful and nondiscriminatory care from all of their healthcare providers.
- Confidentiality of Health Information - The elderly person has the right to talk in confidence with health care providers and to have their health care information protected. The elderly person has the same right to review and obtain a copy of their medical records, as do other patients.
- Complaints and Appeals –The elderly person has the right to a fair, fast, and objective review of any complaint they have against a health plan, doctors, hospitals or other health care personnel. This includes complaints about waiting times, operating hours, the conduct of health care personnel, and the adequacy of health care facilities.
HIPAA2 regulations are basically similar:
- Healthcare providers and facilities have the responsibility to notify patients about their privacy rights and how their information can be used.
- Healthcare providers and facilities are responsible for adopting and implementing privacy procedures for practitioners, private practices, hospitals, etc.
- Healthcare providers and facilities have the responsibility for training employees so that they understand the privacy procedures.
- Healthcare providers and facilities have the responsibility for securing patient records containing individually identifiable health information so that they are not readily available to those who do not need them.
The HIPAA Privacy Rules for the first time creates national standards to protect the individual’s medical records and other personal health information. It gives the patient more control over and access to their health information. It sets boundaries on the use/release of health records. It establishes appropriate safeguards to protect the privacy of health information. It holds violators accountable, with civil and criminal penalties that can be imposed if a patient’s privacy is violated. And it strikes a balance when public responsibility supports disclosure of some forms of data – for example, to protect public health and the patient’s right to privacy.
For the elderly, and all patients, it means being able to make informed choices when seeking care and expecting to be provided pertinent healthcare information. It enables patients to find out how their information may be used and about certain disclosures of their information that have been made. Limits are placed on the release of information and disclosure as to when and how information is released. It generally gives patients the right to examine and obtain a copy of their own health records and request corrections. HIPAA is basically the legal enforcement for the prior Patient’s Bill of Rights.
All patients, especially the elderly, have the right to quality care that maintains their dignity and reflects their wishes. Yet these are exactly the areas most often violated for the elderly person.
Violations of the Patient’s Bill Of Rights.
The most common violation of the elderly person’s rights is when they are addressed in a condescending manner rather than as the adult they are. This sets the tone for not permitting them to participate in multiple elements of their own care. With the universal implementation of HIPAA2 regulations, healthcare providers who violate patients’ rights are generally in violation of HIPAA regulations as well. This now carries legal ramifications.
- Not respecting the elderly person’s right to decision making. If no alternative decision maker is designated, then the elderly person is their own decision maker. The decision to seek another physician, emergency care or treatment alternatives is not always offered to the elderly person with the same frequency as the younger person. The assumption is made that due to their age the elderly person is not able to make an informed decision when in fact the elderly person is able to do so and just needs allowances made for their physical impairments.
- Privacy issues are often violated. Medical information is discussed in front of other patients, often in a loud tone to accommodate for the elderly person’s hearing impairment. Due to embarrassment, the elderly person may not fully explore the medical information/options. This is a violation of their rights and a breach in standard of care (HIPAA standards).
- The reverse of omitted care also occurs for the elderly patient. Namely the elderly person is coerced into signing a consent for invasive and dangerous procedures without a clear understanding of the risks of the procedure or its expected benefits. Family and medical caregivers are often guilty of pressuring the elderly person to have a painful/dangerous procedure when the best of all expected outcome would be a few months of life, often with no alteration in their pain level. This violates the elderly person’s wish for not prolonging their life with a minimum of pain. Sometimes these procedures are performed with the permission of the family when the elderly person has not been declared incompetent thus violating their right to make their own medical decisions, a clear violation of HIPAA standards.
- Another element of poor informed consent is not providing information in a form the elderly person can understand. An example is providing verbal information in English when the patient is non-English speaking and hearing impaired. Again this is in violation of HIPAA standards.
- If the elderly person is not allowed to handle their own finances, then their rights are violated. This occurs in the community as well as in institutional healthcare settings. Family members and occasionally caregivers compel the elderly person into giving them their funds. Adult Protective Services needs to be notified as well as law enforcement agencies as this may create a criminal situation and at the least the vulnerable elderly person needs protection.
It must be remembered that the majority of elderly people continue to live in their own homes with their own families and are never institutionalized. Any time an elderly person is not offered full civil and personal rights it is a potentially abusive situation, be it medical or civil. Preventing elderly abuse is synonymous with providing elders with respect. Any time a patient is offered lesser care due to their age it is a breach in standards of practice. Failure to provide respect and dignity is a short step to abuse and neglect.
Elderly persons are usually quite capable of making informed decisions if information is presented in an appropriate manner. I am reminded of the 100-year-old woman who injured her leg while operating her electric wheelchair. Emergency care was provided, and this person was offered the choice of remaining in the long-term care facility or seeking more diagnostic tests in an emergency room. She made the decision to seek additional care and selected the local hospital to which to be transferred. Her dignity was respected, as was her right to choice. All that was needed to allow her to make these decisions was a willing staff, a little time and written/verbal communication to allow for her physical impairments. This was an actual occurrence. Having fully recovered from her injury she continues to make her own decisions at age 101.
Biography - Linda D. Pershall R.N., B.S.N., L.N.C.
Linda Pershall is a registered nurse with a bachelor’s degree in nursing and 30 years of experience in working with elderly patients in long-term care facilities, community and home settings. She has a passion for quality elder care and an extensive knowledge of elder issues.
Her other passion is wound care, specifically treatment and prevention of pressure wounds or decubitus ulcers which are a frequent problem for the elderly individual.
She formed LDHP Medical Review Services Corp. in 1995 to support quality care standards and provide a resource to the public and medical or legal professional.
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