Can a Debt Collector Speak with a Spouse Concerning a Medical Account?

The FDCPA permits a debt collector to discuss a debt with the consumer's spouse. However, a debt collector should also make sure that such communication with a spouse, who might not be liable for the debt, is permitted under state law.

Communications in connection with the collection of a medical debt are regulated by the Health Insurance Portability and Accountability Act (HIPAA), as well as the Fair Debt Collection Practices Act (FDCPA). The Department of Health and Human Services has stated that it is not aware of any conflicts between the HIPAA Privacy Rules and those of the FDCPA.

The FDCPA permits a debt collector to discuss a debt with the consumer's spouse. However, a debt collector should also make sure that such communication with a spouse, who might not be liable for the debt, is permitted under state law. The FDCPA does not distinguish medical debt from other types of debt.

The HIPAA Privacy Rule permits a covered entity to use the services of debt collectors, because the use of such services to obtain payment for the provision of healthcare is within the definition of "payment operations." The Privacy Rule does not identify to whom information can be disclosed when a covered entity is engaged in its own collection activities. The Privacy Rule permits an entity to exercise discretion when disclosing information about one individual to another. Therefore, if a debt collector needs to disclose protected health information to a spouse, the Privacy Rule generally would not prevent such disclosure.

There are some circumstances, however, in which the Privacy Rule may prohibit a disclosure to a spouse for payment purposes. For example, an individual has the right to request restrictions to the disclosure of protected health information for purposes of collection. If the agreed-to restrictions prohibit disclosure to a spouse of an individual, the debt collector would be prohibited from disclosing such information under the Privacy Rule. In such case, although the FDCPA may permit disclosing the information to the spouse, the Privacy Rule would prohibit the disclosure. Thus, the disclosure could not be made.
 
Although the HIPAA Privacy Rule permits a debt collector to disclose limited information to family members, friends, or other persons regarding an individual's care, the FDCPA third-party disclosure requirement still applies. Therefore, a debt collector should exercise great caution when disclosing information to family, friends or other persons and limit the information disclosed. Keep in mind that HIPAA's "minimum necessary" standard applies in a disclosure relating to the payment of a medical debt.

A debt collector who collects medical debt must be sure she understands the distinction between what information is permitted to be disclosed under the FDCPA versus the HIPAA Privacy Rule. Additionally, state laws may add restrictions on debt collectors communicating with a consumer's spouse. It is important to check the applicable laws for the state in which collections will occur. More information regarding who a debt collector may communicate with regarding a medical debt is available on E-Compliance, document # 417.

This article is provided as a service of ACA International's Legal and Government Affairs Department.

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