I believe you will find that the newest version of the privacy regs require that you have a Notice, but only that you make a "good faith" effort to get the patient to acknowledge receipt of the Notice. There is no longer a specific requirement for a Consent as required in earlier versions of the regs. They don't have to sign a Consent form agreeing to the terms and conditions spelled out in the Notice.
A fair number of HIPAA experts are interpreting this to mean that the Consent is not required. This is legally, probably true. From a business and medical records standpoint, it is probably a really bad option. I suspect your legal advisors will tell you and I know my business experience would tell me to use a written/signed consent form. It is almost certainly the best way to document receipt of the Notice. The variation is that anyone could sign this consent form for a patient. It is really only documentation of the "good faith effort" to make the Notice available. If a staff member signed and dated this consent form with a one line description as to why the patient didn't sign, you have documentation to support your claim that the Notice was distributed.
Doesn't it really make sense to try to get the patient's agreement to the information presented in the Notice? If they are refusing to sign, because they really disagree with something found there -- there is a reason to discuss things a bit more.
I recently had a trip to a hospital for some repairs and it was rather alarming to find that the staff I ran into were largely clueless about patient's rights. There was no Notice available (OK, they have a few days before it is required - no planning ahead here!). When directed to get some follow up tests, I requested a copy of what exactly they wanted me to do. The nurse said "Oh no, we can't do that hip, hipit, something like that won't let us give you anything from your chart." When I indicated that this made no sense, she checked with a supervisor who said I had to wait until it got to medical records and could then request, in writing, a copy, which would be available within 30 days. For a rather important test to be done ASAP. -- but I can't get documentation as to what, exactly they wanted done in the next day or two.
They went on to schedule the wrong test. Think of the fun we can have in court.
Why wouldn't you tell patients what you plan to do with their information and seek their agreement to do those things? Hospitals are not manufacturing facilities dealing with inanimate objects and not all situations make such discussions impossible. The situation was not emergent, I believe I am capable of understanding the paperwork, and had my wife, an RN, with me. I met some caring medical professionals in the business of processing "bed 21 West" in whatever way they felt best -- without any interference from patients.
Dale K Howe, PhD
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