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    HIPAA Privacy Regulations: Uses and Disclosures Requiring an Opportunity for the Individual to Agree or Object: Use and Disclosure for Facility Directories - § 164.510(a)

    As Contained in the HHS HIPAA Privacy Rules

     

    HHS Regulations as Amended January 2013
    Uses and Disclosures Requiring an Opportunity for the Individual to Agree or Object: Use and Disclosure for Facility Directories - § 164.510(a)

     

    (a) Standard: Use and disclosure for facility directories—(1) Permitted uses and disclosure. Except when an objection is expressed in accordance with paragraphs (a)(2) or (3) of this section, a covered health care provider may:

    (i) Use the following protected health information to maintain a directory of individuals in its facility:

    (A) The individual's name;

    (B) The individual's location in the covered health care provider's facility;

    (C) The individual's condition described in general terms that does not communicate specific medical information about the individual; and

    (D) The individual's religious affiliation; and

    (ii) Use or disclose for directory purposes such information:

    (A) To members of the clergy; or

    (B) Except for religious affiliation, to other persons who ask for the individual by name.

    (2) Opportunity to object. A covered health care provider must inform an individual of the protected health information that it may include in a directory and the persons to whom it may disclose such information (including disclosures to clergy of information regarding religious affiliation) and provide the individual with the opportunity to restrict or prohibit some or all of the uses or disclosures permitted by paragraph (a)(1) of this section.

    (3) Emergency circumstances. (i) If the opportunity to object to uses or disclosures required by paragraph (a)(2) of this section cannot practicably be provided because of the individual's incapacity or an emergency treatment circumstance, a covered health care provider may use or disclose some or all of the protected health information permitted by paragraph (a)(1) of this section for the facility's directory, if such disclosure is:

    (A) Consistent with a prior expressed preference of the individual, if any, that is known to the covered health care provider; and

    (B) In the individual's best interest as determined by the covered health care provider, in the exercise of professional judgment.

    (ii) The covered health care provider must inform the individual and provide an opportunity to object to uses or disclosures for directory purposes as required by paragraph (a)(2) of this section when it becomes practicable to do so

     

    HHS Description and Commentary From the January 2013 Amendments
    Uses and Disclosures Requiring an Opportunity for the Individual to Agree or Object: Use and Disclosure for Facility Directories

     

    Section 164.510(a)(1)(ii) permits the disclosure of directory information to members of the clergy and other persons who ask for the individual by name. We proposed to add the words “use or” to this permission, to cover the provision of such information to clergy who are part of a facility’s workforce.

     

    HHS Description From the Original Rulemaking
    Uses and Disclosures Requiring an Opportunity for the Individual to Agree or Object: Use and Disclosure for Facility Directories

     

    The NPRM proposed to allow covered health care providers to disclose through an inpatient facility's directory a patient's name, location in the facility, and general health condition, provided that the individual had agreed to the disclosure. The NPRM would have allowed this agreement to be oral. Pursuant to the NPRM, when making decisions about incapacitated individuals, a covered health care provider could have disclosed such information at the entity's discretion and consistent with good medical practice and any prior expressions of patient preference of which the covered entity was aware.

    The preamble to the NPRM listed several factors that we encouraged covered entities to take into account when making decisions about whether to include an incapacitated patient's information in the directory. These factors included: (1) whether disclosing that an individual is in the facility could reasonably cause harm or danger to the individual (e.g., if it appeared that an unconscious patient had been abused and disclosing the information could give the attacker sufficient information to seek out the person and repeat the abuse); (2) whether disclosing a patient's location within a facility implicitly would give information about the patient's condition (e.g., whether a patient's room number revealed that he or she was in a psychiatric ward); (3) whether it was necessary or appropriate to give information about patient status to family or friends (e.g., if giving information to a family member about an unconscious patient could help a physician administer appropriate medications); and (4) whether an individual had, prior to becoming incapacitated, expressed a preference not to be included in the directory. The preamble stated that if a covered entity learned of such a preference, it would be required to act in accordance with the preference.

    The preamble to the NPRM said that when individuals entered a facility in an incapacitated state and subsequently gained the ability to make their own decisions, health facilities should ask them within a reasonable time period for permission to include their information in the facility's directory.

    In the final rule, we change the NPRM's opt-in authorization requirement to an opt-out approach for inclusion of patient information in a health care facility's directory. The final rule allows covered health care providers – which in this case are health care facilities – to include patient information in their directory only if: (1) they inform incoming patients of their policies regarding the directory; (2) they give patients a meaningful opportunity to opt out of the directory listing or to restrict some or all of the uses and disclosures that can be included in the directory; and (3) the patient does not object to being included in the directory. A patient must be allowed, for example, to have his or her name and condition included in the directory while not having his or her religious affiliation included. The facility's notice and the individual's opt-out or restriction may be oral.

    Under the final rule, subject to the individual's right to object, or known prior expressed preferences, a covered health care provider may disclose the following information to persons who inquire about the individual by name: (1) the individual's general condition in terms that do not communicate specific medical information about the individual (e.g., fair, critical, stable, etc.); and (2) location in the facility. This approach represents a slight change to the NPRM, which did not require members of the general public to ask for a patient by name in order to obtain directory information and which, in fact, would have allowed covered entities to disclose the individual's name as part of directory information.

    Under the final rule, we also establish provisions for disclosure of directory information to clergy that are slightly different from those which apply for disclosure to the general public. Subject to the individual's right to object or restrict the disclosure, the final rule permits a covered entity to disclose to a member of the clergy: (1) the individual's name; (2) the individual's general condition in terms that do not communicate specific medical information about the individual; (3) the individual's location in the facility; and (4) the individual's religious affiliation. A disclosure of directory information may be made to members of the clergy even if they do not inquire about an individual by name. We note that the rule in no way requires a covered health care provider to inquire about the religious affiliation of an individual, nor must individuals supply that information to the facility. Individuals are free to determine whether they want their religious affiliation disclosed to clergy through facility directories.

    We believe that allowing clergy to access patient information pursuant to this section does not violate the Establishment Clause of the First Amendment, which prohibits laws “respecting an establishment of religion.” Courts traditionally turn to the Lemon test when evaluating laws that might raise Establishment Clause concerns. A law does not violate the Clause if it has a secular purpose, is not primarily to advance religion, and does not cause excessive government entanglement with religion. The privacy regulation passes this test because its purpose is to protect the privacy of individuals – regardless of their religious affiliation – and it does not cause excessive government entanglement.

    More specifically, although this section provides a special rule for members of the clergy, it does so as an accommodation to patients who seek to engage in religious conduct. For example, restricting the disclosure of an individual's religious affiliation, room number, and health status to a priest could cause significant delay that would inhibit the ability of a Catholic patient to obtain sacraments provided during the last rites. We believe this accommodation does not violate the Establishment Clause, because it avoids a government-imposed restriction on the disclosure of information that could disproportionately affect the practice of religion. In that way, it is no different from accommodations upheld by the U.S. Supreme Court, such as exceptions to laws banning the use of alcohol in religious ceremonies.

    The final rule expands the circumstances under which health care facilities can disclose specified health information to the patient directory without the patient's agreement. Besides allowing such disclosures when patients are incapacitated, as the NPRM would have allowed, the final rule allows such disclosures in emergency treatment circumstances. For example, when a patient is conscious and capable of making a decision, but is so seriously injured that asking permission to include his or her information in the directory would delay treatment such that the patient's health would be jeopardized, health facilities can make decisions about including the patient's information in the directory according to the same rules that apply when the patient is incapacitated. The final rule modifies the NPRM requirements for cases in which an incapacitated patient is admitted to a health care facility. Whereas the NPRM would have allowed health care providers to disclose an incapacitated patient's information to the facility's directory “at its discretion and consistent with good medical practice and any prior expressions of preference of which the covered entity [was] aware,” the final rule states that in these situations (and in other emergency treatment circumstances), covered health care providers must make the decision on whether to include the patient's information in the facility's directory in accordance with professional judgment as to the patient's best interest. In addition, when making decisions involving incapacitated patients and patients in emergency situations, covered health care providers may decide to include some portions of the patient's information (such as name) but not other information (such as location in the facility) in order to protect patient interests.

    As in the preamble to the NPRM, we encourage covered health care providers to take into account the four factors listed above when making decisions about whether to include patient information in a health care facility's directory when patients are incapacitated or are in an emergency treatment circumstance. In addition, we retain the requirement stated in the preamble of the NPRM that if a covered health care provider learns of an incapacitated patient's prior expression of preference not to be included in a facility's directory, the facility must not include the patient's information in the directory. For cases involving patients admitted to a health care facility in an incapacitated or emergency treatment circumstance who during the course of their stay become capable of decision making, the final rule takes an approach similar to that described in the NPRM. The final rule states that when an individual who was incapacitated or in an emergency treatment circumstance upon admission to an inpatient facility and whose condition stabilizes such that he or she is capable of decision making, a covered health care provider must, when it becomes practicable, inform the individual about its policies regarding the facility's directory and provide the opportunity to object to the use or disclosure of protected health information about themselves for the directory.

     

    HHS Response to Comments Received From the Original Rulemaking
    Uses and Disclosures Requiring an Opportunity for the Individual to Agree or Object: Use and Disclosure for Facility Directories

     

    Comment: Many hospital organizations opposed the NPRM's proposed opt-in approach to disclosure of directory information. These groups noted the preamble's statement that most patients welcomed the convenience of having their name, location, and general condition included in the patient directory. They said that requiring hospitals to obtain authorization before including patient information in the directory would cause harm to many patients' needs in an effort to serve the needs of the small number of patients who may not want their information to be included. Specifically, they argued that the proposed approach ultimately could have the effect of making it difficult or impossible for clergy, family members, and florists to locate patients for legitimate purposes. In making this argument, commenters pointed to problems that occurred after enactment of privacy legislation in the State of Maine in 1999. The legislation, which never was officially implemented, was interpreted by hospitals to prohibit disclosure of patient information to directories without written consent. As a result, when hospitals began complying with the law based on their interpretation, family members and clergy had difficulty locating patients in the hospital.

    Response: We share commenters' concern about the need to ensure that family members and clergy who have a legitimate need to locate patients are not prevented from doing so by excessively stringent restrictions on disclosure of protected health information to health care facilities' directories. Accordingly, the final rule takes an opt-out approach, stating that health care institutions may include the name, general condition, religious affiliation, and location of a patient within the facility in the facility's directory unless the patient explicitly objects to the use or disclosure of protected health information for directory purposes. To ensure that this opt-out can be exercised, the final rule requires facilities to notify individuals of their right not to be included in the directory and to give them the opportunity to opt out. The final rule indicates that the notice and opt-out may be oral. The final rule that allows health care facilities to disclose to clergy the four types of protected health information specified above without requiring the clergy to ask for the individual by name will allow the clergy to identify the members of his or her faith who are in the facility, thus ensuring that this rule will not significantly interfere with the exercise of religion, including the clergy's traditional religious mission to provide services to individuals.

    Comment: A small number of commenters recommended requiring written authorization for all disclosures of protected health information for directory purposes. These commenters believed that the NPRM's proposed provision allowing oral agreement would not provide sufficient privacy protection; that it did not sufficiently hold providers accountable for complying with patient wishes; and that it could create liability issues for providers.

    Response: The final rule does not require written authorization for disclosure of protected health information for directory purposes. We believe that requiring written authorization in these cases would increase substantially the administrative burdens and costs for covered health care providers and could lead to significant inconvenience for families and others attempting to locate individuals in health care institutions. Experience from the State of Maine suggests that requiring written authorization before patient information may be included in facility directories can be disruptive for providers, families, clergy, and others.

    Comment: Domestic violence organizations raised concerns that including information about domestic violence victims in health care facilities' directories could result in further harm to victims. The NPRM addressed the issue of potential danger to patients by stating that when patients were incapacitated, covered health care providers could exercise discretion – consistent with good medical practice and prior expression of patient preference – regarding whether to disclose protected health information for directory purposes. Several commenters recommended prohibiting providers from including information in a health care facility's directory about incapacitated individuals when the provider reasonably believed that the injuries to the individual could have been caused by domestic violence. These groups believed that such a prohibition was necessary to prevent abusers from locating and causing further harm to domestic violence patients.

    Response: We share commenters' concerns about protecting victims of domestic violence from further abuse. We are also concerned, however, that imposing an affirmative duty on institutions not to disclose information any time injuries to the individual could have been the result of domestic violence would place too high a burden on health care facilities, essentially requiring them to rule out domestic violence as a potential cause of the injuries before disclosing to family members that an incapacitated person is in the institution.

    We do believe, however, that it is appropriate to require covered health care providers to consider whether including the individual's name and location in the directory could lead to serious harm. As in the preamble to the NPRM, in the preamble to the final rule, we encourage covered health care providers to consider several factors when deciding whether to include an incapacitated patient's information in a health care facility's directory. One of these factors is whether disclosing an individual's presence in the facility could reasonably cause harm or danger to the individual (for example, if it appeared that an unconscious patient had been abused and disclosing that the individual is in the facility could give the attacker sufficient information to seek out the person and repeat the abuse). Under the final rule, when the opportunity to object to uses and disclosures for a facility's directory cannot practicably be provided due to an individual's incapacity or an emergency treatment circumstance, covered health care providers may use or disclose some or all of the protected health information that the rule allows to be included in the directory, if the disclosure is: (1) consistent with the individual's prior expressed preference, if known to the covered health care provider; and (2) in the individual's best interest, as determined by the covered health care provider in the exercise of professional judgment. The rule allows covered health care providers making decisions about incapacitated patients to include some portions of the patient's information (such as name) but not other information (such as location in the facility) to protect patient interests.