Legal Lesson of the Month: What You’re Not Allowed to Know

Imagine your ambulance team arrives at a long-term care facility to transport a critically ill patient. The staff hands your paramedics patient information in a sealed envelope, including a pink slip, but instructs them not to open the envelope.

Now what? Should your team still open the envelope before transport?

Whether it’s legal to open these information packets varies from state to state. But because the crew is acting as another healthcare provider, there should not be a HIPAA limitation for the disclosure of protected health information for a patient’s ongoing treatment, according to G. Christopher Kelly, an attorney with the prominent EMS law firm Page, Wolfberg & Wirth.

“I would go a step further,” says Kelly, “and say the ambulance service director should have a conversation with the facility director about this and explain that they either get relevant patient information or they will not be picking up the patient.”

Kelly notes there should not be a HIPAA issue for disclosures related to ongoing treatment, but the ambulance service should discuss this with the facility because not all records in the packet might be necessary to review for that ongoing patient care.

In some instances, he cautions, there could be sensitive information in the folder that might trigger a HIPAA concern. If so, the facility and ambulance service need to get on the same page.

“Some information should clearly be shared with the EMS service if an ambulance is truly necessary,” Kelly says. “However, other information, such as psychotherapy notes, might well need to be sealed.”

René E. Hoffer, business manager/human resources for AmeriKare Ambulance, one of the largest providers of private ambulance services in Central Ohio, says it can be an issue if paramedics are not allowed to see patient data prior to transport.

“Any patient information should be shared with all people who attend to that patient from before transport to final destination,” says Hoffer. “This includes any medics, social workers, nurses, or doctors.”

Since the pink slip is used to get emergency hospitalization for a patient who presents with any mental instability or has a substantial risk of causing physical harm to him/herself or others, ambulance crews need that information. It allows the issuing facility to involuntarily (without patient consent) or voluntarily (with patient consent) send a patient to the hospital for further treatment the issuing facility cannot provide.

Not giving a full report on each patient can cause several issues:

Before transport—The patient could be listed as any number of things that could make it hard or unsafe for the staff to treat the patient. If they can read the patient information before allowing the patient onto the stretcher, they may discover the patient gets carsick or can’t lie flat on their back.

During transport—If they do not have all patient information and the patient starts to have a seizure or attack, staff would not know how to properly care for the patient and could possibly harm them by doing something as simple as administering oxygen.

After transport—Not knowing the patient history would limit what crews would report to the end facility, especially if the EMT staff had some sort of emergency with the patient while en route. They can only report on what they know, and that isn’t always the information in a sealed envelope.

The transferring hospital puts both the crew and patient at risk by failing to share information and could be found liable if something goes wrong as a result of the transport crew not knowing something key. If the crew takes the transfer and something goes wrong, the crew and the ambulance company are liable. The transferring hospital might be liable also.

Knowing what’s in the patient packet will tell the crew how to treat a patient, adds Hoffer.

“Many or our female EMTs are concerned if a patient has a predatory background,” she says. “Then, if we turn it around to the patient’s point of view, what if a female patient has been sexually assaulted and will not be transported by a male crew?”

AmeriKare is in the process of writing a new policy for all its contracted facilities emphasizing that HIPAA allows all patient knowledge to be shared prior to transport.

“This policy will ensure our staff will not leave a facility until they have vetted the patient information for themselves,” she says.

If any facility still insists EMS not open the patient information packet, the crew will refuse transport based on the fact that it is unsafe to transport a patient they know next to nothing about.

“My advice for anyone dealing with an issue like this is to let all of their facilities know that patient information should be given to any and all healthcare personnel to provide the best patient care available to that patient,” Hoffer says. “Don’t let your staff go into a situation that you, yourself would not feel comfortable in.”