Stacey A. Tovino Stacey A. Tovino is a Research Professor at the Health Law & Policy Institute at the University of Houston Law Center and a doctoral student in medical humanities at the Institute for Medical Humanities at the University of Texas Medical Branch. Professor Tovino's research and teaching interests are pri­ marily in the areas of health information privacy; bioethics; research ethics and regulation; literature, medicine, and health law; and the legal history of various aspects of health care in the United States, including midwifery and mental health care. Professor Tovino is the author of several articles, includ­ ing Incorporating Literature, Literary Nonfiction, and Illness Narratives into a Health Law Curriculum, 9 J. Med. & Law (forthcoming 2005); American Midwifery Litigation and Legislative Preferences for Physician-Controlled Childbirth, 10 Cardozo Women's L.J. (forthcoming 2005); with William J. Winslade, A Primer on the Law and Ethics of Treatment, Research, and Public Policy in the Context of Severe Traumatic Brain Injury, 14 Annals Health L. 1 (2005); and The Use and Disclosure of Protected Health Information for Research under the HIPAA Privacy Rule, 49 S.D. L. Rev. 447 (2004). Professor Tovino received her law degree from the University ofHouston Law Center (1997) and her undergraduate degree from Tulane University (1994). Between 1997 and 2003, Stacey worked as an associate attorney in the Health Industries Group at Vinson & Elkins in Houston, Texas. HOSPITAL CHAPLAINCY UNDER THE HIP AA PRN ACY RULE: HEALTH CARE OR "JUST VISITING THE SICK"? Stacey A. Tovino* INTRODUCTION Approximately seventy-nine percent of Americans believe that praying can help people recover from illness, injury or disease,1 and nearly seventy­ seven percent of American patients would like spiritual issues discussed as part of their care. 2 Despite Americans' strong beliefs in the health-related benefits of religious and spiritual practices and traditions, the preamble to the federal Department of Health and Human Services' ("HHS "') health information privacy rule (the "Privacy Rule":f explains that health care "does not include * Research Professor, Health Law & Policy Institute, University of Houston Law Center, Houston, Texas. Doctoral student, Institute for the Medical Humanities, University of Texas Medical Branch; J.D., 1997, University of Houston Law Center; B.A., 1994, Tulane University. The author is grateful to Harold Y. Vanderpool, Ph.D., Th.M., for his comments on an earlier draft, and Rev. Lerrill White, BCC, for his assistance in understanding the clinical implications of the regulatory interpretations discussed in this Article. 1. Laurel Arthur Burton & Marcia Sue DeWolf Bosek, When Religion May Be an Ethical issue, 39 J. REuGION & HEALTH 97 (2000) (citing a poll Gallup conducted for CNNIUSA Today); see also PROFESSIONAL CHAPLAINCY: ITS ROLE AND IMPoRTANCE IN HEALTHCARE 2 (Larry VandeCreek & Laurel Burton eds., 2001) [hereinafter PROFESSIONAL CHAPLAINCY] (citing Marty Kaplan, Ambushed by Spirituality, TIME, June 24, 1996, at 62) (citing similar statistics). 2. Burton & Bosek. supra note 1, at 97. For additional statistics describing Americans' beliefs relating to religion, spirituality, and health care, see HAROLD G. KOENIG ET AL., HANDBOOKOFR.:EUGION AND HEALTH 4 (2001) ("In 1994, 96% of the population of the United States believed in God or a higher power, 9()0.4 believed in heaven, 71J0.4 believed in miracles, 73% believed in hell, and 65% believed in the devil" (citation omitted)); PROFESSIONAL CHAPLAINCY, supra note l, at II (discussing a recent meta-analysis of data from forty-two published mortality studies involving approximately 126,000 participants demonstrating that persons who reported frequent religious involvement were significantly more likely to live longer compared to persons who were involved infrequently); Paul Alexander Clark et at., Addressing Patients' Emotional and Spiritual Needs, 29 JOINT COMMISSION J. QUAUTY & SAFETY 659, 662 (2003) (''71}0.4 of Americans believe that faith aids in recovery, and 56% believe that faith has helped them recover; 87% of Americans consider religion to be 'very important' or 'somewhat important' in their life" (internal references and citations omitted)); Jeffrey S. Levin et at., Religion and Spirituality in Medicine: Research and Education, 278 JAMA 792 (1997) ("Recent surveys reveal that nearly 80% of Americans believe in the power of God or prayer to improve the course of illness and nearly 70'.4 of physicians report religious inquiries for counseling on terminal illness .... "(footnotes omitted)); Richard P. Sloan et at., Religion, Spirituality, and Medicine, 353 LANCET664 (1999) ("In a recent poll of 1,000 U.S. adults, 79% of the respondents believed that spiritual faith can help people recover from disease, and 63% believed that physicians should talk to patients about spiritual faith" (quoting Tom McNichol, The New Faith in Medicine, USA TODAY, Apr. 7, 1996, at 4.)). 3. HHS published its first, proposed, version of the Privacy Rule on November 3, 1999. See Standards for Privacy oflndividually Identifiable Health Information, 64 Fed. Reg. 59,918 (Nov. 3, 1999) [hereinafter the "1999 Proposed Rule'']. After receiving and analyzing com- 52 INDIANA HEALTII LAW REVIEW [Vol. 2:49 methods of healing that are solely spiritual" (the ''preamble").4 The preamble concludes that, "clergy or other religious practitioners that provide solely religious healing services are not health care providers within the meaning of this rule • . . . "5 Some health care attorneys interpret the preamble as prohibiting hos­ pitals and physicians from sharing individually identifiable health information with hospital-employed chaplains.6 On the other hand, many hospital chap­ lains argue that the preamble fails to distinguish between hospital chaplains (who, as members of the health care team, should be entitled to full access to patients' health information), and community clergypersons (who are entitled to receive limited directory information about those patients who have agreed to disclosures of their directory information).7 · ments frOm the public and the health care industry on the 1999 Proposed Rule, HHS adopted what was thought to be a final version of the Privacy Rule on December 28, 2000. See Stand­ ards for Privacy oflndividually Identifiable Health Information, 65 Fed. Reg. 82,462 (Dec. 28, 2000) [hereinafter the "2000 Final Rule"). On March 27, 2002, HHS published proposed modifications to the 2000 Final Rule. See Standards for Privacy of Individually Identifiable Health Information, 67 Fed. Reg. 14,776 (Mar. 27,2002). Finally, on August 14,2002, HHS adopted final modifications to its 2000 Final Rule. See Standards for Privacy of Individually Identifiable Health Information, 67 Fed. Reg. 53,182 (Aug. 14, 2002) [hereinafter the "2002 Final Modifications!>]. The term "Privacy Rule" as used throughout this Article refers to HHS' 2000 Final Rule, as amended by HHS' 2002 Final Modifications, as codified at 45 C.F .R. Parts 160 and 164. 4. Standards for Privacy oflndividually Identifiable Health Information, 65 Fed. Reg. at 82,568. 5. Id. 6. See, e.g., Lerrill White, Pastoral Care Providers are Members of the Healthcare Team in Accordance with the Regulations oftheDepartmentofHealth &Human Services, APC NEWS, Jan./Feb.2003, (revised Jan. 2005) ("[S]everallaw firms have provided consultation and offered opinions to hospitals and health care systems pertaining to [the Privacy Rule]. These opinions argue that Chaplains or clinically trained pastoral/spiritual care providers are not 'health care providers'"), reprinted in Ass'n of Prorl Chaplains, Professional Resources, Reading Room: HIP AA and Pastoral Care, at http://www.professionalchaplains.org/ professional-chaplain-services-resources-reading-room-hippa~5.htm(lastvisitedApr.21,2005) (on file with the Indiana Health Law Review); Ira J. Hadnot, Prayers Snared: Churches Fear Red Tape from New Hospital Privacy Rules, DAU.AS MORNING NEWS, Jan. 30, 2004, at Gl ("Yet some lawyers have misinterpreted HIP AA and advised hospitals to impose more controls than the law requires, said an official who represents 4,000 chaplains nationwide"). Not all health care attorneys interpret the Privacy Rule as prohibiting hospitals and physicians from sharing individuallyidentifiablehealth information with hospital-employed chaplains. See, e.g., Letter from R.G. Scott, Attorney at Law, to .the Association ofProfessional Chaplains (May 15, 2003) (on file with author) (arguing that "Hospital staff chaplains are employees ... of the hospitals where they serve, and they are directly involved in treating patients."); see also Jill C. Robinson, HIP AA: Negotiating the Secular in the Interest of the Sacred, Vermont Ecumenical Council & Bible Soeiety, at http://www.vecbs;orglstatementslhipaa.html (last visited Apr. 21, 2005) (on file With the Indiana Health Law Review) (noting that, "Because it is a federal law, HIP AA has been and will be interpreted by the lawyers representing the interests of each institution directly affected by its mandates .... "). 7. See, e.g., Lerrill White & Rod Pierce, HIPAA Regulations Raise Questions for Chaplains, APC NEWS Jan./Feb.2002 (noting that "[w]hat is at stake is the institutional definition of who qualifies as a recognized professional health care provider, thus having access 2005] HOSPITAL CHAPLAINCY UNDER THE HIPAA PRIVACY RULE 53 This Article provides a context for the controversial preamble within the historical relationship between religion and medicine. Part I of this Article provides relevant background information relating to the Privacy Rule. Part 11 provides an overview of the historical relationship between religion and medicine, introduces the hospital chaplain and discusses the chaplain's educa­ tion, certification, and role in the modern American hospital, and addresses the issue whether hospital chaplains are considered part of the health care team. Part ill analyzes the preamble and identifies several arguments that may be used to support a hospital chaplain's access to individually identifiable health information. Part IV identifies several approaches for HHS to consider regard­ ing hospital chaplains' access to individually identifiable health information. Part IV also concludes that the preamble, perhaps inadvertently, attempts to relegate religious and spiritual practitioners to the limited role of visiting the sick and identifies an almost exclusive role for the medical establishment in the provision of health care and related social and support services. As such, the preamble is the latest chapter in the continually evolving relationship between American medicine and religion. I. INTRODUCfiON To THE HIP AA PRivACY RULE HHS' Privacy Rule, 8 which implements one section of the Administra­ tive Simplification provisions set forth in the federal Health Insurance Porta- to appropriate patient information .... j, reprinted in Ass'n ofProf"l Chaplains, Professional Resources, Reading Room: HIP AA and Pastoral Care, at http://www.professionalchaplains .orglprofessional-chaplain-services-resources-reading-room-hippa-l.htm (last visited Apr. 21, 2005) (on file with the Indiana Health Law Review); Lenill White & Rod Pierce, HIPAA Regulations' Impact on Visitation by Clergy, Lay Ministers and Fatth Group Representatives, APC NEWS, May/June 2002, reprinted in Ass'n ofProf'l Chaplains, Professional Resources, Reading Room: HIPAA and Pastoral Care, at http://www.professionalchaplains.org/ professional-chaplain-services-resources-reading-room-hippa-2.htm(lastvisitedApr.21,2005) (on file with the Indiana Health Law Review); Lerrill White & Rod Pierce, Creating HIPAA Compliant Policies and Procedures, APCNEWS July/ Aug. 2002 (arguing that hospitals should formally recognize, in written policies and procedures, chaplains and clinical pastoral education students as health care professionals or as providers of patient treatment), reprinted in Ass'n of Prof'l Chaplains, Professional Resources, Reading Room: HIP AA and Pastoral Care, at http://www.professionalchaplains.org/professional-chaplain-serV:ices-resources-reading-room­ hippa-3.htm (last visited Apr. 21, 2005) (on file with the Indiana Health Law Review). 8. Most covered entities were required to comply with the Privacy Rule by April 14, 2003. Small health plans (those health plans with less than five million dollars in annual receipts) had one additional year (i.e., until April 14, 2004) to comply. See 45 C.F.R. § 164.534(b X2) (2005). Before the general compliance date for the Privacy Rule, state hospital licensing laws and state medical·practice acts typically regulated hospitals' and physicians' disclosures of individually identifiable health information. Most state hospital licensing laws and medical practice acts contained provisions tbat generally prohibited hospitals and physicians from disclosing confidential patient information without the express written authorization of the patient, unless an exception to the general rule applied. .See, e.g., TEx. HEALTII&SAFETYCoDEANN. §§ 241.152, 241.153(Vernon 2004); TEx. Occ.CODEANN. §§ 159.002- 159.004 (Vernon 2004). 54 INDIANA HEAL Til LAW REVIEW [Vol. 2:49 bility and Accountability Act of 1996 ("HIPAA"),9 regulates both uses and disclosures of protected health information10 by certain persons and organiza­ tions that fall within the definition of a covered entity. A. Covered Entities Covered entities generally include all health plans, 11 all health care clearinghouses,12 and certain health care providers13 (i.e., those health care providers who transmit any health information in electronic form in connection with a standard transaction). 14 Because most hospitals and physicians elec­ tronically transmit health information to health insurers in connection with claims for reimbursement and other standard transactions, most hospitals and physicians will constitute covered entities to which the. Privacy Rule applies. Thus, most hospitals and physicians, as well as their employees and workforce members (including hospital chaplains), must ensure that their uses and disclosures of protected health information·complywith the Privacy Rule's use and disclosure requirements.15 · B. Protected Health Information The Privacy Rule only regulates a covered entity's (and its employees' and workforce members') use or disclosure of certain information that falls 9. Health Insurance Portability and Accountability Act of 1996, 104 Pub. L. 191, 110 Stat. 1936,2033 (1996). 10. 45 C.P.R. § 160.103 (2005) (generally defining protected health information as "individually identifiable health information," and excluding from such definition: (i) education records protected by the federal Family Education Rights and Privacy Act {"FERP A j; (ii) certain student treatment records excepted :from protection by FERP A; and {iii) employment records held by a covered entity in its role as an employer). 11. /d. {defining a health plan as "an individual or group plan that provides, or pays the cost of, medical care (as defined in section 2792{a)(2) of the PHS Act, 42 U.S.C. § 300gg- 91{a)(2))''). 12. /d.{definingahealthcareclearinghouseasanentitythatprocesseshealthinformation received from another entity in a nonstandard format into a standard format or receives a standard transaction :from another entity and processes health information into nonstandard format for the receiving entity). 13. /d. {definingahealthcareprovider as a ''providerofservices"undersection 1861(u) of the Social Security Act, a ''provider of medical or health services" under Section 1861(s) of the Social Security Act, or any other person or organization who furnishes, bills, or is paid for health care in the normal course ofbusiness). 14. /d. (defining a covered entity as a health plan, a health care clearinghouse, or a health care provider who transmits any health information in electronic form in connection with a standard transaction). The standard transactions fuclude: (1) claims for reimbursement and patient encounter information; (2) payment for health care services and remittance advice; (3) coordination of benefits; (4) health care claim status; (5) enrollment and disenrollment in a health plan; (6) eligibility for a health plan; (7) health p1an·premium payments; (8) referral certification and authorization; (9) first report of injury; and (10) health claims attachments. Id. 15. The Privacy Rule's use and disclosure requirements are set forth at 45 C.P.R. §§ 164.502. 164.504, 164.506, 164.508, 164.510, 164.512, and 164.514 (2005). 2005] HOSPITAL CHAPLAINCY UNDER THE HIPAA PRIVACY RULE 55 within the definition of protected health information ( .. PHf'). 16 With a few exceptions, the Privacy Rule generally defines PHI as individually identifiable health information.17 Working backwards, the second part of this, phrase, health information, is defined as: [A]ny information, whether oral or recorded in any form or medium, that: · (1) Is created or received by a health care provider ... ; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.18 Health information includes not only medical record and billing record information, but also information relating to the provision of health care to an individual. For example, a hospital's list of current inpatients would constitute health information because the list identifies specific individuals to whom the hospital currently is providing health care.19 16. 45 C.F .R. § 164.500( a)(2005}("Except as otherwise provided herein, the standards, requirements, and implementation specifications of this subpart apply to covered entities with respect to protected health information." (emphasis added)). 17. 45 C.F .R. § 160.103 (generally defining protected health information as individually identifiable health infonnation, and excluding from such definition: (i) education records protected by the federal Family Education Rights and Privacy Act ("FERP A"); (ii) certain student treatment records excepted from protection by FERP A; and (iii) employment records held by a covered entity in its role as an employer). 18. 45 C.P.R.§ 160.103. 19. In the first-ever criminal conviction for a violation of the Privacy Rule, the United States Attorney's Office interpreted the definition ofindividuallyidentifiablehealth infonnation to include demographic information relating to patients of a covered entity, even if such demographic infonnation does not include any specific information about the health of the patient or does not identify the health or medical services provided to the patient. See Plea Agreement at 5, United States v. Gibson, No. CR04-0374RFM (W.O. Wash. Aug. 19, 2004), available at http://world.std.com/-goldberWhlpaacrimesplea.pdf(lastvisitedApr. 21, 2005) (on file with the Indiana Health Law Review). In October of2003, defendant Gibson was employed by the Seattle Cancer Care Alliance, a covered health care provider required to comply with the Privacy Rule. Sometime during the month of October, Gibson obtained the name, date ofbirth, and social security number of a patient who was undergoing treatment for a rare and often fatal form of cancer at the Seattle Cancer care Alliance. ld. During October and November of2003, and January of 2004, Gibson inappropriately used and disclosed by telephone the name, date of birth, and social security number of the patient to AT&T Universal Card, First USA Visa, Chase Manhattan Bank, and Fleet Credit Card Services for purposes of obtaining credit cards in the cancer patient's name. Id. Gibson used the credit cards to obtain cash advances and to purchase various items including video games, home improvement supplies, apparel, jewelry, porcelain figures, groceries, and gasoline. Id. The total value of the debt Gibson incurred was $9,139.42. Id. On August 18, 2004, the United States Attorney's Office filed a one-count charge in the United States District Court for the Western District of Washington stating that Gibson "knowingly and for a reason other than permitted by [HIP AA] disclosed individually identifiable health information of[a patient], with intent to use that infonnation for personal gain." Id. The following day, Gibson waived his right to be charged by indictment and plead 56 INDIANA HEALTH LAW REVIEW [Vol. 2:49 Health information must be individually identifiable to constitute PHI. Health information is individually identifiable when: ( 1) it identifies the individual who is the subject of the information (e.g., because the information includes the patient's name or other direct identifiers); or (2) there is a rea­ sonable basis to believe the information could be used to identifY the indivi­ dual who is the subject of the information. 20 Although the Privacy Rule does not specifically list those identifiers the inclusion of which would establish a reasonable basis to believe that the information could be used to identifY the individual, the Privacy Rule does not apply to information that has been appropriately de-identified. 21 The Privacy Rule establishes two methods for de-identifYing health information. The most popular method. known as the safe harbor method, 22 provides that a covered entity is considered to have de-identified information if the covered entity removes eighteen enumerated identifiers23 from the infor- guilty. /d. The Plea Agreement indicates that the U.S. Attorney did not require the defendant to have disclosed specific information relating to the patient's past, present, or future physical or mental condition or specific information identifying the types of health care provided to the patient in order to establish a violation of the Privacy Rule. Gibson's inappropriate use and disclosure of'~ust" the patient's name, date of birth, and social security number was sufficient to establish a violation of the Privacy Rule. See id. 20. 45 C.P.R. § 160.103 (definition of individually identifiable health information). 21. The Privacy Rule's provisions relating to de-identification are set forth at 45 C.P.R. §§ 164.502(d) and 164.514(a)-(c) (2005). 22. The second method for de-identifying information requires a person with appropriate knowledge of, and experience with, generally accepted statistical and scientific principles and methods for rendering information not individually identifiable to apply such principles and methods and determine that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is a subject of the information. The person with knowledge of and experience with the statistical and scientific principles must document the methods and the results ofhis or her analysis that justify the determination that the risk of identification is small. 45 C.P.R.§ 164.514(b}(l)(i), (ii). 23. The following identifiers of the individual (or of relatives, employers, or household members of the individual) must be removed from the information for the information to be de­ identified under the safe harbor method: (1) Names; (2) All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code if, according to the current publicly available data from the Bureau of the Census: (a) The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and (b) The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000; (3) All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older; ( 4) Telephone numbers; (5) Fax numbers; ( 6) Electronic mail addresses; (7) Social security numbers; (8) Medical record numbers; (9) Health plan beneficiary numbers; (1 0) Account numbers; ( 11) Certificate/license numbers; (12) Vehicle identifiers and serial numbers, including license plate numbers; (13) Device identifiers and serial numbers; (14) Web Universal Resource Locators (URLs); (15) Internet Protocol (IP) address numbers; ( 16) Biometric identifiers, including finger and voice prints; (17) Full face photographic images and any comparable images; and (18) Any other unique identifying number, ch~cteristic, or code. 45 C.P.R.§ 164.514(b)(2)(i). 2005] HOSPITAL CHAPLAINCY UNDER THE HIP AA PRIVACY RULE 51 mation and has no actual knowledge that the remaining information could be used alone or in combination with other information to identify the subject of the information. 24 Once information has been de-identified, a covered entity may freely use or disclose the information without regulation by the Privacy Rule. However, many covered entities believe that completely de-identifying information renders it essentially useless.25 The Privacy Rule generally protects Pill regardless of whether the patient who is the subject of the information is dead or alive?6 In addition, the Privacy Rule protects Pill regardless of whether it is written (e.g., a computer generated list of patients or a hand-written progress note), orally spoken (e.g., an ethics committee discussion or a telephone conversation relating to a particular patient), or visibly displayed (e.g .• an electronic medical record tliat is displayed on a computer screen).27 This lengthy discussion ofPill is necessary to understand the many ways in which hospital chaplains may access or use Pill. Among numerous other activities, hospital chaplains access or use Pill when they: (1) respond to a physician's order or nurse's referral to provide religious or spiritual care to a particular patient; (2) participate in an ethics committee discussion about a par­ ticular patient; (3) access a list of newly admitted inpatients to locate the room number of a particular patient requesting religious or spiritual care; ( 4) prepare paperwork relating to a patient who has just passed away; (5) coordinate funeral arrangements; (6) refer a patient to a patient advocate, a social worker, or another health care provider for additional social or health services; (8) 24. 45 C.F.R. § 164.514(bX2). 25. See, e.g., Jennifer Kulynych & David K.om, The New Federal Medical-Privacy Rule, 347N.ENG.J.MED.ll33, 1134(2002)(arguingtbatthePrivacyRule'sstrictde-identification requirements will complicate hospitals' current practices of releasing information to medical researchers). 26. However, the Privacy Rule does identify a few situations in which PHI about decedentsmaybeusedordisclosedwithoutthedecedent's(orapersonalrepresentative's)prior written authorization. See, e.g., 45 C.F.R. § 164.512(f)(4) (2005) (noting that "[a] covered entity may disclose protected health information about an individual who has died to a law enforcement official for the purpose of alerting law enforcement of the death of the individual if the covered entity has a suspicion that such death may have resulted ftom criminal conduct."); 45 C.F .R. § 164.512(g) (addressing disclosures ofPHI relating to decedents by covered entities to coroners, medical examiners, and funeral directors); 45 C.F.R. § l64.512(i) (addressing disclosures to researchers engaging in research using decedents' information). Other than these limited situations, the Privacy Rule generally protects PHI relating to living and deceased persons equally. See Standards for Privacy oflndividually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,632 (Dec. 28, 2000) (''[qovered entities must under this rule protect the protected health information about a deceased individual in the same manner and to the same extent as required for the protected health information of living individuals."). 27. 45 C.P.R. § 160.103 (2005) (defining "health information" as "any information, whether oral or recorded in any form or medium ..• "); see also Standards for Privacy of Individually Identifiable Health Information 65 Fed. Reg. 82,462. 82,620 (Dec. 28, 2000) ("Covering oral communications is an important part ofkeeping individually identifiable health information private. If the final rule were not to cover oral communications, a conversation about a person's protected health information could be shared with anyone."). 58 INDIANA HEALTH LAW REVIEW [Vol. 2:49 discuss a patient's spiritual needs with another member of the clergy who may be familiar with the patient; and (9) access a patient's record in order to chart the religious or spiritual care services provided to the patient. Hospital chaplains routinely access and use PHI in the course of their job duties. C. Uses and Disclosures The Privacy Rule regulates both internal uses28 of PHI, including uses of PHI by a covered entity's employees and workforce members, as well as external disclosures29 of PHI, including disclosures of PHI by the covered entity to other persons and organizations who are not employees or workforce members of the covered. entity.30 Although members of the public who commented on HHS' 1999· Proposed Rule recommended that covered entities have fewer requirements for internal uses of PHI than for disclosures, HHS disagreed.31 Thus, if a covered hospital wishes to disclose PHI to a community clergyperson who is not employed by the hospital, such as a priest at a local church, the disclosure of PHI by the hospital to the priest must be made in accordance with the use and disclosure requirements set forth in the Privacy Rule, as discussed in Part III.A, below. Likewise, if a hospital-employed chaplain wishes to use PHI maintained by the covered hospital to carry out his or her job duties, the internal use of the information by the employed chaplain also must be made in accordance with the use and disclosure requirements set forth in the Privacy Rule. 28. 45C.F.R. § 160.103(definingusetomean, "withrespecttoindividuallyidentifiable health information. the sharing, employment, application, utilization, examination. or analysis of such information within an entity that maintains such information.''). 29. /d. (defining disclose to mean "the release, transfer, provision of access to, or diwlging in any other manner of information outside the entity holding the information."). 30. The application of the Privacy Rule to both uses and disclosures ofhealth information is different than many state laws, which typically regulate health care providers' disclosures of information to a third party, but not the providers' internal uses of the same information. For example, the Texas Hospital Licensing Law and the Texas Medical Practice Act only regulate disclosures ofhealthinformation by Texas hospitals and physicians, respectively, but not their internal use of information. TEx. REALm & SAFElY CODE ANN. § 241.152(a) (Vernon 2004) ("Except as authorized by Section 241.153, a hospital or an agent or employee of a hospital may not disclose health care information about a patient to any person • . . without the written authorization of the patient .... ") (emphasis added); TEx. OCc. CODE ANN.§ 159.002(a),(b) (Vernon 2004) ("A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter") (emphasis added). 31. For example, in the context of research, HHS explained that [W]e disagree that an individual's privacy interest is of less concern when covered entities use protected health information for research purposes than when covered entities disclose protected health information for research pur­ poses. Therefore, in the final rule, the research-related requirements ... apply to both uses and disclosures of protected health information .... Standards for Privacy of Individually Identifiable Health Information. 65 Fed. Reg. at 82,702. 2005] HOSPITAL CHAPLAINCY UNDER 1HE HIPAA PRivACY RULE 59 D. RELIGION, MEDICINE, AND HOSPITAL CHAPLAINCY Before addressing the issue whether the Privacy Rule permits hospital chaplains to access PHI beyond directory information, this Part n provides an overview of the historical relationship between religion and medicine and discusses the role of the chaplain in the modern American hospital. A. The Relationship Between Religion and Medicine2 1. The Western Christian Tradition In ancient and medieval times, medicine and religion exhibited a close relationship as evidenced by healing rites, exorcisms, pilgrimages, health cults,33 and the fact that many medieval hospitals were conducted by religious orders.34 Until well into the Renaissance, spiritual care and medical care frequently were dispensed by the ·same person,35 and priests and physicians often were considered "one and the same."36 In the Middle Ages, the church was the official body that issued medical licenses to physicians who, typically, were monks or priests, and the church primarily provided care for the poor and the sick.37 The hospital of the Middle Ages was a "religious house in which 32. For a detailed discussion o~ and timeline relating to, the history of religion, science, and medicine, see KoENIG ET AL., supra note 2, at 24-49. 33. Rodney J. Hunter, Pastoral Care and Healthcare Chaplaincy, in 4 ENCYCLOPEDIA OFBIOETIDCS 1975, at 1978 (Stephen G. Posted., 3rd ed. 2004). 34. PAULSTARR, THE SOCIAL TRANsFORMATIONOFA.MmuCANMEDICINE 149(1982). 35. See, e.g., WIUJAM F. MAY, THE PHYSICIAN'S COVENANT: IMAGES OF THE HEALER INMEDICALEnncs 26 (1983) (noting that the ancient shaman "often combined three functions: curing the sick, directing communal sacrifice, and escorting the dead to the other world. He combined, in effect, three offices that have been separated in modern times: physician, priest, and undertaker."); Ronald L. Numbers & Ronald C. Sawyer, Medicine and Christianity in the Modern World, in HEALm!MEDICINEANDTHEF AITHTRADITIONS: ANINQUIR.YINTO RELIGION AND MEDICINE 140 (Martin E. Marty & Kenneth L. Vaux eds., 1982) (noting that "so complimentary were the roles of physician and priest that throughout much of the Middle Ages clerics often provided medical care, even though the ministerial and medical professions were formally distinct"); Sloan et al., supra note 2, at 664 (noting that," At various times worldwide, medical and spiritual care was dispensed by the same person."). 36. See, e.g., Daniel W. Foster, Religion and Medicine: The Physician's Perspective, in HEALmiMEDIClNE AND THE FAITH TRADITIONS: AN INQUIRY INTO REUGION AND MEDICINE 245,250 (Martin E. Marty & Kenneth L. Vaux eds., 1982) (noting that "For centuries the capacity for healing was considered vested in those with divine power; priest and physician were one and the same.''); Sloan et al., supra note 2, at 664; KOENIG ET AL, supra note 2, at 35 (notingthat, "[u]ntilwellintotheRenaissance(theperiodbetweentheMiddleAgesandmodern times), the doctor is generally also a priest.''). 37. KOENIG ET AL, supra note 2, at 34 (citing Darrel W. Amundsen, The Medieval Catholic Tradition, in CAIUNG AND CUR.ING: HEALTH AND MEDICINE IN THE WESTERN REUGIOUS TRADITIONS 83(Ronald L. Numbers & Darrel W. Amundsen eds., 1998)). 60 INDIANA HEALTH LAw R.Evmw [Vol. 2:49 the nursing personnel had united as a vocational community under a religious rule."38 The eventual segregation of preaching and healing resulted from a variety of factors. 39 During the Middle Ages. the Roman Catholic Church did not formally forbid the practice of medicine by clergy generally; however, the Church did question the appropriateness of clergypersons engaging in medical practice.40 During the late Middle Ages and into the Renaissance, guilds of physicians, surgeons, and apothecaries sought legal monopolies over the healing arts. 41 When successful, their efforts excluded clergypersons as well as charlatans from practicing medicine.42 By the year 1500, only three of the twenty-three members of the faculty of medicine at Paris were clergypersons.43 Despite the efforts of the medical profession and the church to dis­ courage clergypersons from practicing medicine, cleric-physicians. persisted in part because the medical guilds had been unable to enforce their monopolies in rural areas "and necessity forced some priests to minister to their flocks.'""' In addition, appropriately credentialed physicians were not always easy to locate and, when they were, their fees sometimes were prohibitive.45 Thus, some clergy and other irregular healers continued to practice medicine in small towns and in rural areas into the eighteenth and nineteenth centuries. 46 Beginning with the Protestant Reformation, Christian ministry began to withdraw· its involvement in healing and from making scientific, empirical claims regarding the natural world. 47 The result was an intellectual and pro­ fessional division between religion and medicine.48 As medicine grew more scientific and ministry became confined to matters of God and the soul, · corresponding professional domainS were identified. Physicians became responsible for the scientific care of the physical body while members of the clergy became responsible for the spiritual care of the soul.49 Medical science began to assign mental and emotional disorders, traditionally considered problems of the soul, to the physical body, and regarded such disorders as potentially treatable by medical means. 50 38. STARR, supra note 34, at 149 (quoting George Rosen, The Hospital: Historical Sociology of a Community Institution, in 'DmHOSPITALINMODBRNSOCIETY 10 (EliotFreidson ed., 1963)). · 39. Numbers & Sawyer, supra note 35, at 140. 40. /d. 41. Id. 42. Id. 43. Id. 44. Id. 45. Numbers & Sawyer, supra note 35, at 140. 46. /d. 47. Hunter, supra note 33, at 1978. 48. Id. 49. Id. 50. Id. 2005] HOSPITAL CHAPLAINCY UNDER THE HIP AA PRivACY RULE 61 However, some of the distinctions that had been drawn between the scientific care of the physical body and the spiritual care of the soul began to blur with the development of psychiatry and the religion and health movement in the early twentieth century.51 Psychoanalysis and related developments identified psychogenic factors that played a role in many psychiatric disorders, and empirical studies in psychosomatic medicine revealed the important effects of emotional and spiritual attitudes on physical health and healing. 52 At the same time, theology began to recover biblical "wholistic" conceptions of human personhood, salvation, and the healing potential of religious ministry. 53 In this theology the welfare of the whole person, physical, mental, and spiritual, was regarded as a profound unity. The result was a gradual closing of the theoretical gap between medicine and religion and the emergence of a more collaborative style of work between physicians and pastoral caregivers. 54 2. The American Relationship In colonial America (1603-1787), the close relationship between religion and medicine existed as it had in the Middle Ages. Although medicine in seventeenth and eighteenth century America focused on a rational understand­ ing of the human body and the world of nature, "religious perspectives were consciously and regularly viewed as compatible with and at points augmen­ tative of such knowledge."55 For example, self-help and other similar litera­ ture addressing medical treatments identified a combination of natural and religious understandings. 56 Moreover, many members of the clergy served as physicians. 57 Heinrich Melchior Muhlenberg, one of the founders of American Lutheranism, undertook a healing ministry in colonial America in part because "doctors [were] few and far between."58 In addition, prospective American ministers frequently studied medicine during their theological instruction in order to provide a better foundation for the provision of medical services in rural or missionary settings. 59 In the colonial period, "medical theory and therapy could be readily learned," and the average person who used the title 51. Id. 52. /d. 53. Hunter, supra note 33, at 1978. 54. Id 55. Harold Y. Vanderpool, Medicine and Medical Ethics, in 2 ENCYCLOPEDIA OF THE AMERICAN REUGIOUS EXPERIENCE 1253, 1254 (Charles H Lippy & Peter W. Williams eds., 1988). 56. Id. 57. Id at 1255; see also Numbers & Sawyer, supra note 35, at 141 ("In colonial New England, Puritan cleric-physicians provided a significant part of the medical services, especially outside Boston and the larger towns."). 58. Numbers & Sawyer, supra note 35, at 141. 59. Vanderpool, supra note 55, at 1255. 62 INDIANA HEALTH LAW REviEW [Vol. 2:49 "Doctor" had read a few books on medicine and served as an apprentice to a practicing physician for several months or more.60 DuringAmerica'sfirstcentury(1787-1890),secularbeliefsincreasingly served as the foundation for medical theory and practice. 61 Regular practi­ tioners, including those who were educated in anatomy, botany, chemistry, and surgery, relied upon natural explanations and therapies in their practices. They also organized themselves into state medical societies, taught their theories in America's new medical schools, and officially opposed irregular practitioners whose various sects and groups were at odds with traditional theory and practice. 62 In part due to the opposition between regular and irregular practi­ tioners, 63 individuals who were both ministers and physicians "withdrew from and were partly squeezed out of medical practice" by the early decades of the nineteenth century.64 Following the Civil War, some individuals believed that American medicine and religion conflicted at a fundamentallevel.65 The new sciences of geology, evolutionary biology, psychology, and scientific historiography "question[ ed] fundamental biblical assumptions regarding human origins and development, the historical and scientific accuracy of the Bible, and traditional views regarding the nature of the human psyche. •>66 When diseases were assigned to specific natural causes, religious explanations became "almost superfluous.'>67 For example, the American response to cholera in 1832 and 1849 was largely religious because the cause of the disease was unknown at that time.68 However, when the cause of the disease was discovered in 1866, religious explanations faded away.69 Perhaps as a reaction against conventional medical theories, nineteenth century America witnessed the development of several irregular theories of medicine including, but certainly not limited to, the Thomsonians' heat­ restoring botanicals, health food campaigns, and hydropathy. 70 Joseph Smith's 60. Id. 61. Id. at 1257. 62. Id. 63. See, e.g., MAJOR PROBLEMS IN THE HisToRY OF AMERICAN MEDICINE AND PUBUC HEALTH 55 (John Harley Warner & Janet A. Tighe eds., 2001) (distinguishing "regular bred physicians" or ''regulars" from ''non-regular" practitioners). 64. Vanderpool, supra note 55, at 1257. 65. Id. 66. Id. 67. Numbers & Sawyer, supra note 35, at 139. 68. Id. ("as long as cholera remained a mystery, religious persons felt ftee to regard it as a miracle, 'a scourge, a rod in the hand of God. 'j (emphasis in original). 69. Id. (''when cholera threatened to return in 1866, Americans devoted their energies to improving sanitation rather than to discussing the theological meaning of the event.''). 70. Vanderpool, supra note 55, at 1258. Thomsonians were followers of Samuel Thomson, a botanic healer who decried the regular medical profession as a murderous mono­ poly. See, e.g., SAMUEL THOMSON, NEW GuiDE TO HEALTH; OR, BoTANIC F AMH..Y PHYSICIAN (1835). Thomsonianism was the first organized anti-orthodox system of medical belief and practice. MAJOR PROBLEMS IN THE HISTORY OF AMERICAN MEDICINE AND PUBUC HEALTH, supra note 63, at 51. 2005] HOSPITAL CHAPLAINCY UNDER TilE HIPAA PRNACY RULE 63 botanical remedies, his opposition to tea, coffee, alcoholic beverages, and tobacco, and his emphasis on spiritual healing flourished in frontier settlement areas.71 Relative to irregular practitioners, the status of regular physicians improved after the reinstatement of several states' medical licensure laws in the 1870's, the use of anesthesia and antisepsis in the 1880s, the beginning of clinical and laboratory research in 1890, the development and use of vaccines, antitoxins, and X -rays in the 1890s, and the building of more than three thousand new hospitals in the thirty-eight year period from 1872 to 1910.72 By 1890, American religion and medicine were widely considered to be operating in separate realms/3 and physicians eventually "came to control medical care as off limits to the clergy."74 In the second-half of the nineteenth century and the first-half of the twentieth century, American patients continued, however, to choose their physicians based on subjective and personal judgments that allowed for simi­ larities in religion, ethnic group, and socioeconomic background.75 For example, Catholic immigrants tended to select Catholic physicians and Jewish immigrants tended to select Jewish physicians. 76 During this time period, many American patients also chose their hospitals by religious or ethnic sponsorship.77 In 1849, New York Catholics founded St. Vincent's Hospital and, a few years later, New York Episcopals founded St. Luke's. 78 New York Jews established Mt. Sinai Hospital in 1852, and the Catholics opened their second hospital, St. Francis, in 1865.79 By 1885, Catholics had established 154 hospitals throughout the United States, more than the total number ofhospitals 71. Vanderpool, supra note 55, at 1258-59. 72. /d. at 1259-60. 73. Id. at 1253. 74. /d. at 1256 (discussing William Douglass' defense of medicine's separate professional status as ''prophetic of the way doctors eventually came to control medical care as off limits to the clergy."). 75. DAVID J. ROTHMAN, STRANGERS AT Tim BEDSIDE: A HISTORY OF HOW LAW AND BIOETIUCS TRANSFORMED MEDICAL DECISION MAKING 111 (2nd ed., Walter de Gruyter 2003) (1991). 76. /d. at 111 (''In an era when major eastern and Midwestern cities were divided into ghetto enclaves, immigrants tended to select their doctors along ethnic and religious lines. Catholics turned to Catholic doctors, Jews to Jewish doctors •... "). 77. Id. at 123; see also STARR, supra note 34, at 174 (noting that ethnic and religious hospitals furnished opportunities for internships and residencies that Jewish, Catholic, and black doctors were denied elsewhere and staff appointments so that they could attend patients of theirs needing hospitalization); ROSEMARY STEVENS, IN SICKNESS AND IN WEALTH: AMERICAN HOSPITALS IN Tim TwENTIETH CENTIJRY 24 ( 1989) ("Religious, ethnic, and linguistic diversity in the United States made schools and hospitals visible affirmations of the importance of immigrants and religious groups."). 78. CHARLEs E. ROSENBERG, 1iiE CARE OF STRANGERS: 1iiE RISE OF AMERICA'S HOSPITAL SYSTEM 109 (1987). 79. ld.; see also STARR, supra note 34, at 153-54 ("In New York City, according to a historian ofits Jewish community, Jews' Hospital (later Mt Sinai) developed within a few years after its founding into 'the most important Jewish organization in the city.'"). 64 INDIANA HEALTH LAW REVIEW [Vol. 2:49 that existed in the United States in the late 1860s.80 By 1930, approximately 640 Catholic hospitals were established in the United States, and the Catholic Hospital Association C'CHA") estimated that one Catholic hospital bed was available for every 231.2 American Catholics. 81 Social and medical historians emphasize the regularity with which members of religious communities built and frequented their own hospitals during the early part of the twentieth century: In New York City from 1925 to 1945, 60 percent of the fifty-eight general hospitals had religious sponsorship (most of them Catholic or Jewish); moving westward (where one might have imagined the ethnic impact to be lower), Cincinnati in 1925 had nine general hospitals, of which four were sponsored by Protestant groups (chiefly Methodists), two by Catholics, and one by Jews. That year, 308 Catholic patients in Cincinnati had to enter a hospital, and 165 of them (54 percent) chose one of the three Catholic hospitals; so too, 54 of the 71 Jewish patients (76 percent) entered the Jewish hospital. (Among Protestants, the figures were lower, for those in the majority did not experience the same incentives.) To be sure, Catholic and Jewish hospitals served more than Catholic and Jewish patients-the CHA estimated that 49 percent of its patients were non-Catholic-and not every member of an ethic or religious group patronized the group's own hospitals. But a majority of Catholics did use the group's hospitals, and the figures may even have been slightly higher among Jews. 82 Early twentieth-century Catholic hospitals emphasized the human and spiritual, as well as medical, needs of their patients.83 "Nursing sisters" com­ forted patients and ensured that priests were available to give extreme unction to Catholic patients.84 The walls of Catholic hospitals frequently displayed crucifixes and paintings that displayed "the deepest Catholic piety."85 And 80. ROSENBERG, supra note 78, at Ill. 81. ROTHMAN, supra note 75, at 123. 82. Jd. at 123-24; see also STEVENS, supra note 77, at 23 (noting that more than eighty percent of the private and sectarian charitable hospitals existing in 1910 were established after 1880, and that thirty-two percent were established in the decade beginning in 1900); id. at 29 (noting that "Illinois reported the largest cluster of Roman Catholic hospitals of any state in 1903 (43 out of a total of 118 hospitals)."). 83. ROTHMAN, supra note 75, at 124; see also ROSENBERG, supra note 78, at 240 ("To be treated by a religious woman and to pay a modest sum for one's room and board transformed a hospital stay for Catholics into something less painful and humiliating than it would have in a large, nonsectarian-that is, Protestant-voluntary hospital."). 84. ROTHMAN, supra note 75, at 124. 85. Jd. at 124. 2005] HOSPITAL CHAPLAINCY UNDER THE HIP AA PRIVACY RULE 65 Catholic physicians believed that prescribing medications for patients but ignoring the human and spiritual aspect of patient care was not an effective method of treatment. 86 Jewish hospitals demonstrated a similar religious orien­ tation. One of the stated reasons for the 1900 founding of Beth Israel Hospital on New York's lower East Side was to "have a hospital that should be con­ ducted on strictly orthodox principles in its kitchen as well as in other respects."87 Jewish patients who received treatments at Jewish hospitals also could be assured of receiving kosher foods and access to Yiddish-speaking physicians. 88 After the 1950s, however, sectarian hospitals discontinued their exclu­ sive reliance on religion or ethnicity as a reason for selecting resident and attending physicians and began to place greater weight on the area of speciali­ zation or expertise as well as the merit of the physician:89 "It became increas­ ingly difficult to define what was Presbyterian about Presbyterian Hospital or Jewish about Mt. Sinai Hospital, and the answer could not be found in the characteristics of either the patients or the attending physicians.'>90 Although Catholic hospitals are somewhat excepted from this trend, social and medical historians argue that Catholic hospitals of the second-half of the twentieth century "barely resembled" their predecessor hospitals of the early twentieth century.91 Similarly, the trustees of Montefiore Hospital in New York amended their charter in 1985 to eliminate the requirement that a majority of the board of trustees had to be Jewish.92 Very broadly, one might conclude that in the Western Christian tradition, medicine and religion: (1) enjoyed a close relationship in ancient and medieval times through healing rites, exorcisms, pilgrimages, and health care cults; (2) began to separate during (and did separate following) the Protestant Refor­ mation and the turn of the seventeenth century with the rise of modem science and scientific medicine; and (3) grew closer together again with the develop­ ment of dynamic psychiatry and the religion and health movement in the early 86. !d. at 124-25. 87. !d. at 125. 88. !d. at 125; see also ROSENBERG, supra note 78, at 178 ("German-speaking physicians whether Jewish or Christian might find attending positions in German and Jewish hospitals."); STARR, supra note 34, at 173 ("Discrimination was a principal reason for the formation of separate religious and ethnic hospitals .... Catholics were afraid they might not be given last rites, and Jews feared they would have to eat nonkosher food and face ridicule for their appearance and rituals."). 89. ROTHMAN, supra note 75, at 129-30. 90. !d. at 130. 91. !d. at 130; see also STEVENS, supra note 77, at 26 (''hence the survival of names such as Presbyterian, Methodist, Baptist, or Mount Sinai for hospitals which today are indistinguishable from nonsectarian institutions."). 92. ROTHMAN, supra note 75, at 130; see also STEVENS, supra note 77, at 100 ("World War I confirmed that the United States was now one nation .... Local elites on boards of trustees continued to represent business and religious interests, but the old ethnic, religious, and national identifies of hospitals had blurred."). 66 INDIANA HEALTH LAW REVIEW [Vol. 2:49 twentieth century. In the United States, medicine and religion shared a con­ stantly evolving and interwoven relationship seemingly characterized by action and reaction, participation and withdrawal, competition and cooperation. De­ pending on when asked, one might describe American medicine and religion as incompatible, complimentary,93 or even augmentative,94 or as enemies or allies.95 B. The History of Clinical Pastoral Education and American Hospital Chaplaincy When a hospital or other health care facility employs, contracts with, sponsors, or otherwise affiliates with a minister, priest, pastor, rabbi, or other similar person to provide pastoral care96 or religious or spiritual services in its facility, the provision of such care or services by that person generally is known as "health-care chaplaincy.'m To simplify matters, this Article will refer to, and use as an example, chaplains who provide pastoral care in hos­ pitals (hereinafter, "hospital chaplains"). Please note, however, that the legal principles discussed in this Article would apply equally to persons who pro­ vide pastoral care or religious or spiritual services in or through other types of health care organizations that constitute covered entities under the Privacy Rule, including nursing facilities, hospices, and home health agencies. 98 93. See, e.g., Numbers & Sawyer, supra note 35, at 140(notingthattherolesofphysician and priest throughout the Middle Ages were "complimentary''). 94. See, e.g., Vanderpool, supra note 55, at 1254 (stating that medicine and therapy in seventeenth and eighteenth century America were viewed as "compatible with and at points augmentative"). 95. See, e.g., Numbers & Sawyer, supra note 35, at 134 (asking whether church and medicine are "enemies or allies''). 96. From a Christian perspective, the phrase pastoral care means "the attempt to help others, through words, acts, and relationships, to experience as fully as possible the reality of God's presence and love in their lives." HOSPITAL MINISTRY: THE RoLE OF THE CHAPLAIN TODAY 46 (Lawrence E. Holst ed., 1985). Today, the phrase generally refers to the services provided by ordained ministers, priests, and other persons with designated religious roles, including deacons and members of Roman Catholic religious orders, to persons in need. Although the phrase primarily has Christian roots, other faith traditions, including Judaism, sometimes used the phrase analogously. Hunter, supra note 33, at 1975. 97. Hunter, supra note 33, at 1975. 98. See 45 C.F .R. § 160.103 (2005)( defining a health care provider to include "a provider of services (as defined in section 186l(u) ofthe [Social Security] Act, 42 U.S.C. 1395x(u))"); 42 U.S.C. § 1395x(u) (2005) (defining a provider of services to include a skilled nursing facility, home health agency, or hospice program, among other types of health care providers). Professional chaplains provide pastoral care and religious and spiritual services in a variety of healthcare settings including, but not limited to, facilities providing acute care, long-term care, assisted living, rehabilitation, mental health services, outpatient services, addiction treatment, care and services for mental retardation and developmental disability, and hospice and palliative care. See PROFESSIONAL CHAPlAINCY, supra note 1, at 5 (describing the healthcare settings for spiritual care). 2005] HOSPITAL CHAPLAINCY UNDER THE HIP AA PRIVACY RULE 67 Late nineteenth and early twentieth century hospital chaplain services frequently were provided by retired, community clergypersons who had no special training beyond the experience gained from their local parishes. 99 However, in the early part of the twentieth century, the "religion and health movement" began to explore the positive relationship between religion and modern medicine and proposed the placement of theological students in clinical settings. 100 In 1923, Dr. William S. Keller placed theological students in a general hospital in Cincinnati and, in 1925, Congregational minister Anton T. Boisen developed a program at Worcester State Hospital in Massachusetts that studied the relationship between religion and mental disorders. 101 Boisen's program, which later became known as "clinical pastoral education,"102 grew out of his dissatisfaction with traditional theological education of the day, ''which was considered by many to be too abstract, too removed from life, too divorced from the practical tasks ofministry."103 Boisen believed that intensive clinical experience, not books, was the key to developing a theological understanding of human nature and effective pastoral care. 104 The clinical pastoral education movement peaked in the 1930s with the development of clinical pastoral training centers, the certification of chaplain supervisors, and the creation of staff chaplaincy positions in both mental and general hospitals, many of which still exist today. 105 C. Education and Certification of Hospital Chaplains Most oftoday's hospital chaplains hold college and seminary degrees or have other appropriate theological education, usually with an emphasis in biblical theology, dogmatics, church history, philosophy, or the arts and humanities. 106 Most hospital chaplains also have been ordained, commis­ sioned, or otherwise endorsed by their religious denominations. 107 State law typically does not license hospital chaplains, although some hospital chaplains 99. Hunter, supra note 33, at 1977. 100. /d. (citing E. BROOKS HOJJFIELD, A HISTORY OF PASTORAL CARE IN AMERICA: FROM SALVATION TO SELF-REALizATION (1985)). 101. /d. (citing EDWARD E. THORNTON, PROFESSIONAL EDUCATION FOR MINISTRY: A HISTORY OF CUNICALPASTORALEDUCATION (1970)); see also Lawrence E. Holst, Hospital Chaplain Between Worlds, in HEALTH/MEDICINE AND THE FAITH TRADITIONS: AN INQUIRY INTO REliGION AND MEDICINE 293,297 (Marin E. Marty & Kenneth L. Vaux, eds., 1982) (explaining that clinical pastoral education began in 1925 in a state mental hospital in Worcester, Massachusetts). 102. Hunter, supra note 33, at 1977. 103. Holst, supra note 101, at 297. 104. Hunter, supra note 33, at 1977 (citing ANTON T. BoiSEN, THE EXPLORATION OF THE INNER WoRLD (1971)). 105. Id. 106. Holst, supra note 101, at 297. 107. Hunter, supra note 33, at 1977. 68 INDIANA HEALTH LAW REVIEW [Vol. 2:49 who also practice specialized pastoral counseling are licensed under state law as pastoral counselors, psychologists, or marriage and family therapists.108 In addition to formal theological education, nearly all full-time profes­ sional hospital chaplains have trained for their ministries through participation in some level of clinical pastoral education ("CPE"). In the United States, the Association for Clinical Pastoral Education ("ACPE"), the National Associa­ tion of Catholic Chaplains, and the National Association of Jewish Chaplains establish high standards for the professional practice of hospital chaplaincy and enforce such standards through rigorous certification and review proce­ dures.109 The ACPE generally accredits three different levels of CPE for: (1) interns and beginning residents; (2) residents preparing for chaplaincy certifi­ cation and residents seeking specialization in a particular clinical area; and (3) individuals training and preparing to be certified as CPE supervisors. no Interns generally are defined as those individuals who participate in one or two units ofCPE. 111 Each unit ofCPE includes approximately 400 hours of super­ vised education in a health care or institutional setting. 112 Residents generally are defined as those individuals who participate in one or two years of a full­ time CPE program. 113 Each year includes approximately 1,600 hours of super­ vised education in a health care or institutional setting. 114 The ACPE requires individuals to complete I ,600 hours of CPE to become a board-certified chaplain. 115 Individuals who want to obtain a specialization in hospice, pedia­ trics, cardiology, rehabilitation, or neurology chaplaincy can do so by com­ pleting additional CPE in the relevant setting. 116 To be eligible to enter training to become a CPE supervisor, an indivi­ dual must have completed at least four units, or 1,600 hours, ofCPE. Upon completion of supervisory training, the individual is eligible to be certified by the ACPE as a CPE supervisor. CPE supervisors are permitted to develop and conduct CPE training for all ACPE-accredited programs. 108. Id. 109. Id. 110. CERTIFICATION COMMISSION, Ass'N FOR CLINICAL PASTORAL EDUC., ACPE CERTIFICATION MANUAL 5 (2005), available at http://www.acpe.edu/acroread/ 2005 _certification_ manual. pdf. 111. Medicare Program; Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2004 Rates, 68 Fed. Reg. 45,346,45,425 (Aug. I, 2003). Individuals also may undertake one or more units of CPE to be ordained into professional ministry or to obtain a doctoral degree with a specialty in pastoral counseling or related fields. Id. 112. Id. 113. Medicare Program; Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2004 Rates, 68 Fed. Reg. at 45,425. 114. !d. 115. Jd. 116. Jd. 2005] HOSPITAL CHAPLAINCY UNDER THE HIP AA PRN ACY RULE 69 D. The Functions and Job Duties of Today 's Hospital Chaplain As part of their job duties, hospital chaplains interact with patients and families, medical and nursing staff members, ethics committee and institu­ tional review board members, hospital administrators, volunteers, and com­ munity members. Hospital chaplains perform many functions and services that are partly or mostly religious or spiritual in nature as well as several other functions and services that cannot be characterized solely by their religious or spiritual characteristics. 117 The functions and services oftoday's hospital chaplain that are partly or mostly religious or spiritual in nature include, but certainly are not limited to: providing spiritual care, including grief and loss care; performing spiritual assessments of patients; performing patient risk screenings, which includes identifying those patients whose religious or spiritual conflicts may com­ promise recovery or satisfactory adjustment; charting spiritual care interven­ tions in medical records; protecting patients from unwelcome forms of spiritual intrusion; reminding hospital workforce members and patients of the healing power of religious faith; facilitating spiritual issues relating to organ and tissue donation; designing and leading religious ceremonies of worship and ritual including prayer, meditation, reading of holy texts, worship and observance of holy days, blessings and sacraments, memorial services and funerals, rituals at the time of birth or other significant times of life-cycle transition, and holiday observances; making presentations concerning spiritu­ ality and health issues; training and supervising volunteers from religious com­ munities who can provide spiritual care to the sick; conducting professional clinical education programs for seminarians, clergypersons, and religious leaders; developing congregational health ministries; educating students in the health care professions regarding the interface of religion and spirituality with medical care; offering patients, family members, and staff an emotionally and spiritually "safe" professional from whom they can seek counsel or guidance; engaging in research activities relating to the development of spiritual assess­ ment and spiritual risk screening tools; and promoting research relating to spiritual care at national conventions. 118 Hospital chaplains also perform and provide a number of other functions and services that cannot be solely characterized by their religious or spiritual nature, including: communicating with caregivers; facilitating staff communi­ cations; resolving conflicts among staff members, patients, and family mem­ bers; referring patients to internal and external resources including other health care providers, patient advocates, and community and social resources; pro­ viding "decedent care"; 119 providing institutional support during organizational 117. PROFESSIONAL CHAPLAINCY, supra note 1, at 8-10. 118. !d. 1 I 9. See, e.g., Texas Health Resources, Harris Methodist Southwest Hospital: Spiritual Care, at http://www.texashealth.org/hospitals/default.asp?level=2&id=AB 1 CD4945F6643DA 8A99EE4C39970443&enorgid=F9DC671 D200E43C 194F983A4E51 OB2EB (last visited Apr. 70 INDIANA HEALTH LAW REVIEW [Vol. 2:49 change or crisis; participating in medical rounds and patient care conferences; participating in interdisciplinary education; assisting patients and families in executing or completing advance directives; participating in ethics committees and institutional review boards; clarifying the application of institutional policies and behaviors to patients, community clergy, and religious organiza­ tions; conducting in-service education; interpreting and analyzing cultural traditions that may impact clinical services; representing community issues and concerns to the organization; and acting as "cultural brokers" between insti­ tutions, patients, family members, and staffs.120 In summary, hospital chap­ lains do not limit their services to individuals with needs that are explicitly defined in religious or spiritual terms. 121 E. The Role ofToday's Hospital Chaplain 1. Hospital Chaplains as Members of the Health Care Team Because hospital chaplains provide a range of therapeutic, supportive, and administrative services, '