Many professionals, including those in funeral service, are concerned with protecting the privacy of their clients. A large part of this concern has been driven by the enactment of recent laws and regulations, such as the Gramm-Leach-Bliley Act and HIPAA, which seek to protect financial information and medical records from unauthorized disclosure.
What are a funeral home's obligations with regard to privacy rights? In this article, we look at several scenarios involving the disclosure of information by funeral home personnel and whether those disclosures violate federal or state law.
1. A widow instructs the funeral director her estranged son is not to be allowed to attend the funeral of her husband because the son stole money from the father many years ago. At the visitation, a neighbor asks the funeral director where the son is and why he is not attending his father's funeral. The funeral director informs the neighbor there has been some past "family troubles" and the son was not invited. Has the funeral director violated the law?
In this scenario, the funeral director has violated Section 4717-1-18(C) of the Ohio Administrative Code. That regulation requires licensees to protect confidences, privacies or secrets regarding a family which the funeral home acquired through the funeral home's professional relationship with that family. In this case, the widow told the funeral director about a family problem that was not public information. Although the widow did not instruct the funeral director to protect the confidentiality of the item, the funeral director should have been aware of the sensitive nature of the information and not conveyed it to third parties.
2. A young man dies in a car accident. During the arrangement conference, his parents inform the funeral director to be careful because, while it is not public knowledge, their son was HIV-positive. Although the funeral home employs universal precautions, the funeral director does inform the embalmer about the medical condition. Later that night during dinner, the embalmer mentions to his spouse that the decedent was HIV-positive. The spouse in turn mentions this fact to a neighbor who knows the family of the decedent. Have any laws been broken?
The disclosure by the embalmer to his spouse regarding the HIV-positive status of the decedent violates Section 4717-1-18(C) of the Ohio Administrative Code. This information was a family confidence that should have not been conveyed to those outside of the funeral home. This scenario underscores the importance of funeral home employees protecting family confidences even from spouses and their own family members.
Another issue is whether the disclosure of the medical condition by funeral home personnel violated HIPAA. HIPAA is a wide-ranging federal law that protects against the unauthorized disclosure of health information and medical records. However, HIPAA only covers health care providers and those that are performing duties on behalf of health care providers, such as health insurance companies and third party billing agents. In this case, the funeral home would not be covered by HIPAA since it is not a health care provider nor in contract with a health care provider. Therefore, the unauthorized disclosure of the HIV-positive status would not be a violation of HIPAA since the funeral home was not subject to the HIPAA confidentiality restrictions.
3. Several years ago, a funeral home provided funeral services to the first wife of Mr. Smith. Mr. Smith never paid the entire funeral bill. Mr. Smith's second wife has died, but the funeral home refuses to provide funeral services because of the old debt. A competitor, who has now been contacted by Mr. Smith, phones the funeral home and asks why the funeral home is not serving the family. The funeral director informs the competitor that the funeral home is refusing to provide services because of the unpaid bill from Mr. Smith's first wife's funeral. Is the disclosure of this information a violation of federal or state law?
Neither. The disclosure of the unpaid bill would not be a violation of Section 4717-1-18(C) of the Ohio Administrative Code because it is not a family confidence or secret. Therefore, there was no state law prohibition against the funeral director informing his competitor of the unpaid funeral bill.
With regard to federal law, the Gramm-Leach-Bliley Act does prohibit the unauthorized disclosure of financial information. However, for the most part, the Gramm-Leach-Bliley Act covers only financial institutions or those acting on behalf of financial institutions. In this case, the funeral home would not be covered by the Gramm-Leach-Bliley Act and would be free to disclose the unpaid bill to the competitor.
As this article shows, it is extremely important for funeral homes to protect confidences disclosed by family members to funeral home personnel. The unauthorized disclosure of family secrets could result in the funeral home losing its license and/or being sued by the family in a civil action. Therefore, all funeral home personnel, including non-licensees, should be continually reminded of the necessity of protecting family secrets and confidential information.
To reinforce that obligation, funeral homes may want to have employees execute a confidentiality agreement. At the end of this article OFDA has provided a sample Employee Confidentiality Agreement which sets forth the employee's agreement to protect against disclosure of any confidential information provided by the family to the funeral home. This form is also available for download at www.MyOFDA.org/forms
OFDA members with questions regarding this matter may contact T. Scott Gilligan at (513) 871-6332.
EMPLOYEE CONFIDENTIALITY AGREEMENT
"EMPLOYEE":(Name of Employee)
"FUNERAL HOME":(Name of Funeral Home)
1. Legal Requirement.
Section 4717-1-18(C) of the Ohio Administrative Code requires the Funeral Home and all of its employees to protect confidences, privacies, or secrets of any family served by the Funeral Home, the knowledge of which was acquired through the Funeral Home's professional relationship with the family.
2. Confidentiality Obligation of Employee.
Employee acknowledges the legal obligation of the Funeral Home to protect any confidences, privacies or secrets of families served by the Funeral Home. Employee agrees that the Employee will not disclose, directly or indirectly, to anyone outside of the Funeral Home or, unless there is a need to know, to anyone associated with Funeral Home, any confidences, privacies or secrets of any family members served by the Funeral Home. This obligation of confidentiality includes any information regarding the appearance of deceased remains, circumstances or causes of death, medical conditions, or other information regarding the decedent not otherwise known to the public or available through public documents.
3. Indemnification.
Employee understands and agrees the obligation to maintain confidentiality is paramount to the success and survival of the Funeral Home. Employee agrees to indemnify and hold harmless the Funeral Home from any claims or damages the Funeral Home may suffer as a result of Employee's breach of the confidentiality obligations hereunder.
IN WITNESS WHEREOF, the Employee hereby agrees to the foregoing.
Witness: EMPLOYEE SIGNATURE:
Date: