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Evaluation and Management of the
Sexually Assaulted or Sexually Abused Patient
Twelve “National Priority Purposes” for HIPAA Disclosure without Permission
1.
When required by law (statute, regulation, or court order)
2.
For public health activities (e.g., disease, vital statistics, and adverse events reporting)
3.
For reporting of abuse, neglect, or domestic violence
4.
For health oversight activities (e.g., audits or inspections)
5.
For judicial and administrative proceedings
6.
For law enforcement purposes (e.g., criminal investigations)
7.
For disclosures about deceased persons, to coroners, medical examiners, and funeral directors
8.
For organ, eye, and tissue donation purposes
9.
For some types of research (e.g., when an institutional review board has waived the authorization requirement)
10.
To avert a serious threat to the health or safety of a person or the public (e.g., from an escaped prisoner)
11.
For specialized government functions, such as military missions or correctional activities
12.
For Workmen’s Compensation claims
It is clear that under these national priority principles, several apply when caring for the sexually assaulted patients.
It is always best to disclose to the patient the need for the health care worker to disclose information but realize, the
patient’s written permission is not required.
These activities justify law enforcement having access to ED patients. If possible, ED patients should be asked for
and give their permission to be visited by law enforcement officers and to have patient information released to law
enforcement. Patients transported to the ED in the custody of law enforcement officers may have limited rights to
physical privacy and confidentiality. Law enforcement activities should not interfere with patient care. Also, like other
ED visitors, law enforcement officers should not be allowed to wander and view patient care activities not related to
their purpose for being in the ED.
Privacy and Photography
Photography (and possibly videotaping) can be important parts of the evaluation of the sexual assault victim.
Photo­documentation provides several advantages to and complements written documentation of injury.
Photodocumentation is also an important tool in education of emergency medicine providers, including Sexual
Assault Nurses/Forensic Examiners.
Several professional organizations have formulated policies about the filming of patients. These policies all emphasize
the role of consent before filming or photographing. It is also good practice to obtain consent for subsequent use
of the images (court/criminal proceedings or education/training). Check with your hospital’s risk management
department concerning your institutions photography/filming policy.
Confidentiality and ACEP
ACEP has taken a strong stand on the need for privacy and confidentiality in the ED. Since 1994 ACEP has maintained
a Clinical Policy on Confidentiality. The ACEP Board of Directors reaffirmed this policy in October 2008.
Research and HIPAA
Research is an important task of the academic emergency physician. Many research questions exist around the care
of the sexually assaulted patient and as a specialty we have an obligation to answer these questions. It is important to
realize and remember that HIPAA applies to research as well. Emergency medicine researchers may use PHI with the
patient’s expressed written consent or if they have obtained a waiver of authorization from an institutional review or
privacy board after showing that the research could be conducted without the use of PHI. Personal identifiers must
not be used or disclosed and researchers must assure in writing that the PHI will not be reused or disclosed. A written
plan to destroy any identifiers after the research conclusion must be provided.
In addition, health care institutions may enter into agreements with researchers to disclose “limited data sets”
exclusively for researchers. These data sets must not include the 16 identifiers listed:
1. Names
2. Postal address information, other than town
or city, state, and ZIP code
3. Telephone numbers
4. Fax numbers
5. Email addresses
6. Social security numbers
7. Medical record numbers
8. Health plan beneficiary numbers
9. Account numbers
10. Certificate/license numbers
11. Vehicle identifiers and serial numbers, including
license plate numbers
12. Device identifiers and serial numbers
13. Web universal resource locators
14. Internet protocol numbers
15. Biometric identifiers (including finger and voice
prints)
16. Full-face photographic images and any comparable
images.
ACEP Clinical Policy: Confidentiality
The American College of Emergency Physicians believes that all physicians have an important ethical and legal
duty to guard and respect the confidential nature of the personal information conveyed during the patientphysician encounter. Emergency physicians implicitly promise to preserve patient confidentiality, a promise that in
turn promotes patients’ autonomy, privacy, and trust in their emergency physicians.
ACEP believes patient confidentiality is an important but not absolute principle. Confidential patient information
may be disclosed when patients or their legal surrogates agree to disclosure, when mandated by law, or when there
exist overriding and compelling grounds for disclosure, such as the prevention of substantial harm to identifiable
other persons.
ACEP also acknowledges that there are circumstances in which no societal consensus exists about whether
to disclose patient information. Specific problem areas include but are not limited to cases involving minors,
drug testing, employee health, perpetrators and victims of violent crimes, medical records, the media, and
communicable and sexually transmitted diseases. Such cases can require an extraordinary degree of sensitivity,
discretion, and judgment on the part of emergency physicians.
Sample Confidentiality Statement
All information and evidence related to this investigation are privileged, confidential, and proprietary. The
substance and content are exempt from disclosure to anyone, except its intended recipients, or as clearly compelled
under applicable local, state, or federal law.
All research must be conducted following your facilities institutional review board policies.
32
Privacy and Law Enforcement Officers
References
Law enforcement officers play several roles in the ED. They may be called to provide protection physical protection
to ED staff, patients, and visitors. Law enforcement officers may transport injured or ill patients from the scene of an
accident or violent crime. And finally, they may come to the ED to collect physical evidence, interview crime victims or
suspects, or otherwise pursue investigations of a crime.
ACEP Clinical Policy: Patient Confidentiality. Available at: http://www.acep.org/Clinical—Practice-Management/Patient-Confidentiality
Evaluation and Management of the Sexually Assaulted or Sexually Abused Patient | ACEP
Moskop, JC, Marco, CA, Larkin, GL, et al. From Hippocrates to HIPAA: Privacy and Confidentiality in Emergency Medicine—Part I: Conceptual, Moral,
and Legal Foundations. Ann Emerg Med 2005;45;53–59.
Moskop, JC, Marco, CA, Larkin, GL, et al. From Hippocrates to HIPAA: Privacy and Confidentiality in Emergency Medicine—Part II: Challenges in the
Emergency Department. Ann Emerg Med 2005;45;60–67
Privacy and Confidentiality
33
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