Mr. Sharkey’s role is to serve as a resource to the association as well as our member funeral directors as a member benefit. Specifically, those firms who need mortuary law specific legal guidance, (often on short or even emergency notice) can spend up to 30 minutes getting answers they need.  If a call will take more than 30 minutes of guidance, the member will be advised to retain Mr. Sharkey privately.  Please call 952-334-4460 to reach Mr. Sharkey’s office.  

This member benefit is important and  made possible by your membership dues and the support of the MFDA Service Corporation. 

Internal Memorandum to MFDA Members: Communicable Disease Disclosure Under HIPPA

I write to discuss a topic that has been around for almost 16 years, but which has only just now come back into the spotlight due to the COVID19 pandemic.  The topic is “does a hospital or long term care facility (nursing home) or other care facility have to tell you, the funeral director, that an individual died from COVID19?”  The answer is- of course- not perfectly black and white.

HIPPA rules prevent hospital and other care facilities from disclosing information about patients.  However, there are exceptions to this rule.  One of the exceptions is found at 45 CFR 164.512(g).  “CFR” means “Code of Federal Regulations” and is a fancy way of saying “federal law.”  A hospital or care facility has an obligation to protect the “PHI” (private health information) of a patient even after the patient dies.  Among the exceptions to this rule are that a hospital or care facility may tell a funeral director about a communicable disease because the communicable disease impacts the funeral director or embalmer’s handling of the decedent.  “Covered entity” means a hospital, nursing home, care facility, etc.   The black letter law reads as follows:

45 CFR 164.512(g) Standard: Uses and disclosures about decedents.

(2) Funeral directors. A covered entity may disclose protected health information to funeral directors, consistent with applicable law, as necessary to carry out their duties with respect to the decedent. If necessary for funeral directors to carry out their duties, the covered entity may disclose the protected health information prior to, and in reasonable anticipation of, the individual's death.

The good news for funeral service is that there is a very clear exception to HIPPA privacy disclosures for a funeral director seeking information regarding whether or not a person died of a communicable disease.  The bad news is two-fold: 1) Most hospital staff have no idea that there is a HIPPA exception for funeral directors; and 2) The rule says “may” not “shall,” so the hospital cannot be forced to make the disclosure.   In other words, there is nothing preventing the hospital or other care facility from telling you, the funeral director, that the decedent was COVID19 positive (or any other communicable disease for that matter).  However, there is also nothing that legally forces the hospital to do such. 

Do you have a right to know?  Yes, you do.  Is it an enforceable right? No, it is not.

You are, of course, free to tell the hospital or care facility that you will not make the removal unless they disclose whether or not the deceased had a communicable disease.  You are also free to tell the family that the hospital or care facility refuses to provide this information.  Whether you choose to do such is a business/professional judgment decision that you have to make for yourself. 

As a two-state licensed funeral director for more than 20 years I am fully aware of the mantra “you treat all decedents as if they have an infectious disease.”  I am also fully aware- just as I used to do myself when I would embalm- that we always use PPEs, practice universal precautions, and abide by the rules and principles of OSHA’s Bloodborne Pathogen Standard.  We all agree with this.  However, we also all know that if an individual is known to have something like antibiotic-resistant tuberculosis that body is treated differently by the funeral home and embalming staff (this is just an example- there are other communicable diseases that also have heightened handling standards).  I make no comment on whether or not a COVID19 positive body should be handled with increased precautions- you can review the CDC and WHO guidelines and recommendations (which, notably, differ) and make your own decisions about that.  I do know that I would want to know beforehand if an individual is COVID19 positive if for no other reason than the clean-up procedures are, per guidelines, somewhat different than standard.

I am including a PDF for everyone with the exact language taken from the original Code of Federal Regulations and the language germane to funeral directors highlighted for your ease of reference.  I suggest you print this off (print it off in color so the highlighting comes through) and have it available to show to any hospital or care facility staff who refuse to tell you if a decedent has a communicable disease or not.  Again- the problem is that while there is no legal reason why they cannot tell you a body has COVID19, there is no law that makes them tell you. 

I again wish you all the best of luck in your hard work and noble endeavors at such a tough time for the Dismal Trade. 

Take care,

Michael D. Sharkey, Esq.

MFDA General Counsel