HIPAA Q&A: Role-based access and incidental disclosures

Q: The emergency department (ED) at the hospital where I work often becomes so busy that we do not have enough rooms for all of our patients. This occurred last weekend, which meant that several patients were brought into the ED on stretchers to be evaluated but could not be placed in a room. I witnessed a nurse perform a physical/abdominal examination on a patient who was on a stretcher in the ED hallway and discuss medical history and current treatment options with the patient in this open space where plenty of patients and staff members could see/hear the encounter. Is this a HIPAA violation?

A: What you are describing is an incidental disclosure, not necessarily a HIPAA violation. Organizations must take steps to limit incidental disclosures and mitigate the risks to the patient’s privacy and the security of information. In the case you describe, for instance, could a screen have been erected to protect the patient’s privacy even if circumstances led to no choice but to perform the exam in the hallway? Could a white noise machine have been brought over to reduce the chance of being overheard? Could the gurney have been moved to a private area (or even a slightly more private one) when the exam had to take place? Could the exam have been postponed until a more private space was available, or was it necessary to do it right then? These are the questions staff should ask themselves in these situations. 

Editor's note: Simons is the director of health information and privacy officer of Maine General Medical Center in Augusta. She is also an HIMB advisory board member. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions. Send your questions related to HIPAA compliance to Editor Jaclyn Fitzgerald at jfitzgerald@hcpro.com.

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