[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Proposed Rules]
[Pages 59918-60065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28440]



[[Page 59917]]

_______________________________________________________________________

Part IV





Department of Health and Human Services





_______________________________________________________________________



Office of the Secretary



_______________________________________________________________________



45 CFR Parts 160 Through 164



Standards for Privacy of Individually Identifiable Health Information; 
Proposed Rule

Federal Register / Vol. 64, No. 212 / Wednesday, November 3, 1999 / 
Proposed Rules

[[Page 59918]]



DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Parts 160 through 164

RIN 0991-AB08


Standards for Privacy of Individually Identifiable Health 
Information

AGENCY: Office of the Assistant Secretary for Planning and Evaluation, 
DHHS.

ACTION: Proposed rule.

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SUMMARY: This rule proposes standards to protect the privacy of 
individually identifiable health information maintained or transmitted 
in connection with certain administrative and financial transactions. 
The rules proposed below, which would apply to health plans, health 
care clearinghouses, and certain health care providers, propose 
standards with respect to the rights individuals who are the subject of 
this information should have, procedures for the exercise of those 
rights, and the authorized and required uses and disclosures of this 
information.
    The use of these standards would improve the efficiency and 
effectiveness of public and private health programs and health care 
services by providing enhanced protections for individually 
identifiable health information. These protections would begin to 
address growing public concerns that advances in electronic technology 
in the health care industry are resulting, or may result, in a 
substantial erosion of the privacy surrounding individually 
identifiable health information maintained by health care providers, 
health plans and their administrative contractors. This rule would 
implement the privacy requirements of the Administrative Simplification 
subtitle of the Health Insurance Portability and Accountability Act of 
1996.

DATES: Comments will be considered if received as provided below, no 
later than 5 p.m. on January 3, 2000.

ADDRESSES: Submit electronic comments at the following web site: http:/
/aspe.hhs.gov/admnsimp/.
    Mail comments (1 original, 3 copies, and, if possible, a floppy 
disk ) to the following address: U.S. Department of Health and Human 
Services, Assistant Secretary for Planning and Evaluation, Attention: 
Privacy-P, Room G-322A, Hubert H. Humphrey Building, 200 Independence 
Avenue SW, Washington, DC 20201.
    If you prefer, you may deliver your written comments (1 original, 3 
copies, and, if possible, a floppy disk) to the following address: Room 
442E, 200 Independence Avenue, SW, Washington, DC 20201.
    See the SUPPLEMENTARY INFORMATION section for further information 
on comment procedures, availability of copies of this document and 
electronic access to this document.

FOR FURTHER INFORMATION CONTACT: Roxanne Gibson (202) 260-5083.

SUPPLEMENTARY INFORMATION: Comment procedures, availability of copies, 
and electronic access.
    Comment procedures: All comments should include the full name, 
address and telephone number of the sender or a knowledgeable point of 
contact. Written comments should include 1 original and 3 copies. If 
possible, please send an electronic version of the comments on a 3\1/2\ 
inch DOS format floppy disk in Adobe Acrobat Portable Document Format 
(PDF) (preferred) HTML (preferred), ASCII text, or popular word 
processor format (Microsoft word, Corel WordPerfect).
    Because of staffing and resource limitations, we cannot accept 
comments by electronic mail or facsimile (FAX) transmission, and all 
comments and content are to be limited to the 8.5 wide by 11.0 high 
vertical (also referred to as ``portrait'') page orientation. 
Additionally, it is requested that if identical/duplicate comment 
submissions are submitted both electronically and in paper form that 
each submission clearly indicate that it is a duplicate submission. In 
each comment, please specify the section of this proposed rule to which 
the comment applies.
    Comments received in a timely fashion will be available for public 
inspection (by appointment), as they are received, generally beginning 
approximately three weeks after publication of a document in Room 442E 
of the Department's offices at 200 Independence Avenue, SW., 
Washington, DC 20201 on Monday through Friday of each week from 8:30 
a.m. to 5 p.m. (phone: 202-260-5083).
    After the close of the comment period, comments submitted 
electronically and written comments that we are technically able to 
convert will be posted on the Administrative Simplification web site 
(http://aspe.hhs.gov/admnsimp/).
    Copies: To order copies of the Federal Register containing this 
document, send your request to: New Orders, Superintendent of 
Documents, PO Box 371954, Pittsburgh, PA 15250-7954. Specify the date 
of the issue requested and enclose a check or money order payable to 
the Superintendent of Documents, or enclose your Visa or Master Card 
number and expiration date. Credit card orders can also be placed by 
calling the order desk at (202) 512-1800 or by fax to (202) 512-2250. 
The cost for each copy is $8.00. As an alternative, you can view and 
photocopy the Federal Register document at most libraries designated as 
Federal Depository Libraries and at many other public and academic 
libraries throughout the country that receive the Federal Register.
    Electronic Access: This document is available electronically at 
http://aspe.hhs.gov/admnsimp/ as well as at the web site of the 
Government Printing Office at http://www.access.gpo.gov/su__docs/aces/
aces140.html.

I. Background
    A. Need for privacy standards.
    B. Statutory background.
    C. Administrative costs.
    D. Consultations.
    E. Summary and purpose of the proposed rule.
    1. Applicability.
    2. General rules.
    3. Scalability.
    4. Uses and disclosures with individual authorization.
    5. Uses and disclosures for treatment, payment and health care 
operations.
    6. Permissible uses and disclosures for purposes other than 
treatment, payment and health care operations.
    7. Individual rights.
    8. Administrative requirements and policy development and 
documentation.
    9. Preemption.
    10. Enforcement.
    11. Conclusion.
II. Provisions of the proposed rule.
    A. Applicability.
    1. Covered entities.
    2. Covered information.
    3. Interaction with other standards.
    4. References to other laws.
    B. Definitions.
    1. Act.
    2. Covered entity.
    3. Health care.
    4. Health care clearinghouse.
    5. Health care provider.
    6. Health information.
    7. Health plan.
    8. Secretary.
    9. Small health plan.
    10. Standard.
    11. State.
    12. Transaction.
    13. Business partner.
    14. Designated record set.
    15. Disclosure.
    16. Health care operations.
    17. Health oversight agency.
    18. Individual. 419. Individually identifiable health 
information.
    20. Law enforcement official.
    21. Payment.
    22. Protected health information.
    23. Psychotherapy notes.
    24. Public health authority.
    25. Research.

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    26. Research information unrelated to treatment.
    27. Treatment.
    28. Use.
    29. Workforce.
    C. General rules.
    1. Use and disclosure for treatment, payment, and health care 
operations.
    2. Minimum necessary use and disclosure.
    3. Right to restrict uses and disclosures.
    4. Creation of de-identified information.
    5. Application to business partners.
    6. Application to information about deceased persons.
    7. Adherence to the notice of information practices.
    8. Application to covered entities that are components of 
organizations that are not covered entities.
    D. Uses and disclosures with individual authorization.
    1. Requirements when the individual has initiated the 
authorization.
    2. Requirements when the covered entity initiates the 
authorization.
    3. Model forms.
    4. Plain language requirement.
    5. Prohibition on conditioning treatment or payment.
    6. Inclusion in the accounting for uses and disclosures.
    7. Revocation of an authorization by the individual.
    8. Expired, deficient, or false authorization.
    E. Uses and disclosures permitted without individual 
authorization.
    1. Uses and disclosures for public health activities.
    2. Use and disclosure for health oversight activities.
    3. Use and disclosure for judicial and administrative 
proceedings.
    4. Disclosure to coroners and medical examiners.
    5. Disclosure for law enforcement.
    6. Uses and disclosure for governmental health data systems.
    7. Disclosure of directory information.
    8. Disclosure for banking and payment processes.
    9. Uses and disclosures for research.
    10. Uses and disclosures in emergency circumstances.
    11. Disclosure to next-of-kin.
    12. Additional uses and disclosures required by other law.
    13. Application to specialized classes.
    F. Rights of individuals.
    1. Rights and procedures for a written notice of information 
practices.
    2. Rights and procedures for access for inspection and copying.
    3. Rights and procedures with respect to an accounting of 
disclosures.
    4. Rights and procedures for amendment and correction.
    G. Administrative requirements.
    1. Designation of a privacy official.
    2. Training.
    3. Safeguards.
    4. Internal complaint process.
    5. Sanctions.
    6. Duty to mitigate.
    H. Development and documentation of policies and procedures.
    1. Uses and disclosures of protected health information.
    2. Individual requests for restricting uses and disclosures.
    3. Notice of information practices.
    4. Inspection and copying.
    5. Amendment or correction.
    6. Accounting for disclosures.
    7. Administrative requirements.
    8. Record keeping requirements.
    I. Relationship to other laws
    1. Relationship to State laws.
    2. Relationship to other federal laws.
    J. Compliance and Enforcement.
    1. Compliance
    2. Enforcement.
III. Small Business Assistance
    1. Notice to individuals of information practices.
    2. Access of individuals to protected health information.
    3. Accounting for uses and disclosures.
    4. Amendment and correction.
    5. Designated Privacy official.
    6. Training.
    7. Safeguards.
    8. Complaints.
    9. Sanctions.
    10. Documentation of policies and procedures.
    11. Minimum Necessary.
    12. Business partners.
    13. Special disclosures that do not require authorization--
public health, research, etc.
    14. Verification.
IV. Preliminary Regulatory Impact Analysis
    A. Relationship of this Analysis to Analyses in Other HIPAA 
Regulations.
    B. Summary of Costs and Benefits.
    C. Need for the Proposed Action.
    D. Baseline Privacy Protections.
    1. Professional Codes of Conduct and the Protection of Health 
Information.
    2. State Laws.
    3. Federal Laws.
    E. Costs.
    F. Benefits.
    G. Examination of Alternative Approaches.
    1. Creation of de-identified information.
    2. General rules.
    3. Use and disclosure for treatment, payment, and health care 
operations.
    4. Minimum necessary use and disclosure.
    5. Right to restrict uses and disclosures.
    6. Application to business partners.
    7. Application to information about deceased persons.
    8. Uses and disclosures with individual authorization.
    9. Uses and disclosures permitted without individual 
authorization.
    10. Clearinghouses and the rights of individuals.
    11. Rights and procedures for a written notice of information 
practices.
    12. Rights and procedures for access for inspection and copying.
    13. Rights and procedures with respect to an accounting of 
disclosures.
    14. Rights and procedures for amendment and correction.
    15. Administrative requirements.
    16. Development and documentation of policies and procedures.
    17. Compliance and Enforcement.
V. Initial Regulatory Flexibility Analysis
    A. Introduction.
    B. Economic Effects on Small Entities
    1. Number and Types of Small Entities Affected.
    2. Activities and Costs Associated with Compliance.
    3. The burden on a typical small business.
VI. Unfunded Mandates
    A. Future Costs.
    B. Particular regions, communities, or industrial sectors.
    C. National productivity and economic growth.
    D. Full employment and job creation.
    E. Exports.
VII. Environmental Impact
VIII. Collection of Information Requirements
IX. Executive Order 12612: Federalism
X. Executive Order 13086: Consultation and Coordination with Indian 
Tribal Governments
 List of Subjects in 45 CFR Parts 160 and 164
Appendix: Sample Provider Notice of Information Practices

I. Background

A. Need for Privacy Standards.

    [Please label comments about this section with the subject: ``Need 
for privacy standards'']
    The maintenance and exchange of individually identifiable health 
information is an integral component of the delivery of quality health 
care. In order to receive accurate and reliable diagnosis and 
treatment, patients must provide health care professionals with 
accurate, detailed information about their personal health, behavior, 
and other aspects of their lives. Health care providers, health plans 
and health care clearinghouses also rely on the provision of such 
information to accurately and promptly process claims for payment and 
for other administrative functions that directly affect a patient's 
ability to receive needed care, the quality of that care, and the 
efficiency with which it is delivered.
    Individuals who provide information to health care providers and 
health plans increasingly are concerned about how their information is 
used within the health care system. Patients want to know that their 
sensitive information will be protected not only during the course of 
their treatment but also in the future as that information is 
maintained and/or transmitted within and outside of the health care 
system. Indeed, a Wall Street Journal/ABC poll on September 16, 1999 
asked Americans what concerned them most in the coming century. ``Loss 
of personal privacy'' was the first or second concern of 29 percent of 
respondents. All other issues, such a terrorism, world war, and global 
warming had scores of 23 percent or less.
    Efforts to provide legal protection against the inappropriate use 
of individually identifiable health

[[Page 59920]]

information have been, to date, undertaken primarily by the States. 
States have adopted a number of laws designed to protect patients 
against the inappropriate use of health information. A recent survey of 
these laws indicates, however, that these protections are quite uneven 
and leave large gaps in their protection. See Health Privacy Project, 
``The State of Health Privacy: An Uneven Terrain,'' Institute for 
Health Care Research and Policy, Georgetown University (July 1999) 
(http://www.healthprivacy.org).
    A clear and consistent set of privacy standards would improve the 
effectiveness and the efficiency of the health care system. The number 
of entities who are maintaining and transmitting individually 
identifiable health information has increased significantly over the 
last 10 years. In addition, the rapid growth of integrated health care 
delivery systems requires greater use of integrated health information 
systems. The expanded use of electronic information has had clear 
benefits for patients and the health care system as a whole. Use of 
electronic information has helped to speed the delivery of effective 
care and the processing of billions of dollars worth of health care 
claims. Greater use of electronic data has also increased our ability 
to identify and treat those who are at risk for disease, conduct vital 
research, detect fraud and abuse, and measure and improve the quality 
of care delivered in the U.S.
    The absence of national standards for the confidentiality of health 
information has, however, made the health care industry and the 
population in general uncomfortable about this primarily financially 
driven expansion in the use of electronic data. Many plans, providers, 
and clearinghouses have taken steps to safeguard the privacy of 
individually-identifiable health information. Yet they must currently 
rely on a patchwork of State laws and regulations that are incomplete 
and, at times, inconsistent. The establishment of a consistent 
foundation of privacy standards would, therefore, encourage the 
increased and proper use of electronic information while also 
protecting the very real needs of patients to safeguard their privacy.
    The use of these standards will most clearly benefit patients who 
are, in increasing numbers, indicating that they are apprehensive about 
the use and potential use of their health information for inappropriate 
purposes. A national survey released in January 1999 indicated that 
one-fifth of Americans already believe that their personal health 
information has been used inappropriately. See California HealthCare 
Foundation, ``National Survey: Confidentiality of Medical Records,'' 
January 1999 (conducted by Princeton Survey Research Associates) 
(http://www.chcf.org). Of even greater concern, one-sixth of 
respondents indicated that they had taken some form of action to avoid 
the misuse of their information, including providing inaccurate 
information, frequently changing physicians, or avoiding care. The use 
of these standards will help to restore patient confidence in the 
health care system, providing benefits to both patients and those who 
serve them.
    In order to administer their plans and provide services, private 
and public health plans, health care providers, and health care 
clearinghouses must assure their customers (such as patients, insurers, 
providers, and health plans) that the health care information they 
collect, maintain, use, or transmit will remain confidential. The 
protection of this information is particularly important where it is 
individually identifiable. Individuals have an important and legitimate 
interest in the privacy of their health information, and that interest 
is threatened where there is improper use or disclosure of the 
information. The risk of improper uses and disclosures has increased as 
the health care industry has begun to move from primarily paper-based 
information systems to systems that operate in various electronic 
forms. The ease of information collection, organization, retention, and 
exchange made possible by the advances in computer and other electronic 
technology afford many benefits to the health care industry and 
patients. At the same time, these advances have reduced or eliminated 
many of the logistical obstacles that previously served to protect the 
confidentiality of health information and the privacy interests of 
individuals.
    Congress recognized the need for minimum national health care 
privacy standards to protect against inappropriate use of individually 
identifiable health information by passing the Health Insurance 
Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, 
which called for the enactment of a privacy statute within three years 
of the date of enactment. The legislation also called for the Secretary 
of Health and Human Services to develop and send to the Congress 
recommendations for protecting the confidentiality of health care 
information, which she did on September 11, 1997. The Congress further 
recognized the importance of such standards by providing the Secretary 
of Health and Human Services with authority to promulgate health 
privacy regulations in lieu of timely action by the Congress. The need 
for patient privacy protection also was recognized by the President's 
Advisory Commission on Consumer Protection and Quality in the Health 
Care Industry in its recommendations for a Consumer Bill of Rights and 
Responsibilities (November, 1997).

B. Statutory Background.

    [Please label comments about this section with the subject: 
``Statutory background'']
    The Congress addressed the opportunities and challenges presented 
by the health care industry's increasing use of and reliance on 
electronic technology in the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA), Public Law 104-191, which was 
enacted on August 21, 1996. Sections 261 through 264 of HIPAA are known 
as the Administrative Simplification provisions. The major part of 
these Administrative Simplification provisions are found at section 262 
of HIPAA, which enacted a new part C of title XI of the Social Security 
Act (hereinafter we refer to the Social Security Act as the ``Act'' and 
we refer to all other laws cited in this document by their names).
    In section 262, Congress recognized and sought to facilitate the 
efficiencies and cost savings for the health care industry that the 
increasing use of electronic technology affords. Thus, section 262 
directs HHS to issue standards to facilitate the electronic exchange of 
information with respect to financial and administrative transactions 
carried out by health plans, health care clearinghouses, and health 
care providers who transmit electronically in connection with such 
transactions. HHS proposed such standards in a series of Notices of 
Proposed Rulemaking (NPRM) published on May 7, 1998 (63 FR 25272 and 
25320), and June 16, 1998 (63 FR 32784). At the same time, Congress 
recognized the challenges to the confidentiality of health information 
presented by the advances in electronic technology and communication. 
Section 262 thus also directs HHS to develop standards to protect the 
security, including the confidentiality and integrity, of such 
information. HHS issued an NPRM proposing security standards on August 
12, 1998 (63 FR 43242).
    Congress has recognized that privacy standards must accompany the 
electronic data interchange standards and that the increased ease of 
transmitting and sharing individually

[[Page 59921]]

identifiable health information must be accompanied by an increase in 
the privacy and confidentiality. In fact, a significant portion of the 
first Administrative Simplification section that was debated on the 
floor of the Senate in 1994 (as part of the Health Security Act) was 
made up of privacy provision. Although the requirement for the issuance 
of concomitant privacy standards remained as part of the bill passed by 
the House of Representatives, in conference the requirement for privacy 
standards was removed from the standard-setting authority of title XI 
(section 1173 of the Act) and placed in a separate section of HIPAA, 
section 264. Subsection (b) of section 264 required the Secretary of 
HHS to develop and submit to the Congress recommendations for:

    (1) The rights that an individual who is a subject of 
individually identifiable health information should have.
    (2) The procedures that should be established for the exercise 
of such rights.
    (3) The uses and disclosures of such information that should be 
authorized or required.

    The Secretary's Recommendations were submitted to the Congress on 
September 11, 1997, and are summarized below. Section 264(c)(1) 
provides that:

    If legislation governing standards with respect to the privacy 
of individually identifiable health information transmitted in 
connection with the transactions described in section 1173(a) of the 
Social Security Act (as added by section 262) is not enacted by 
(August 21, 1999), the Secretary of Health and Human Services shall 
promulgate final regulations containing such standards not later 
than (February 21, 2000). Such regulations shall address at least 
the subjects described in subsection (b).

    As the Congress did not enact legislation governing standards with 
respect to the privacy of individually identifiable health information 
prior to August 21, 1999, HHS has now, in accordance with this 
statutory mandate, developed proposed rules setting forth standards to 
protect the privacy of such information.
    These privacy standards have been, and continue to be, an integral 
part of the suite of Administrative Simplification standards intended 
to simplify and improve the efficiency of the administration of our 
health care system.
    Part C of title XI consists of sections 1171 through 1179 of the 
Act. These sections define various terms and impose several 
requirements on HHS, health plans, health care clearinghouses, and 
health care providers who conduct the identified transactions 
electronically.
    The first section, section 1171 of the Act, establishes definitions 
for purposes of part C of title XI for the following terms: code set, 
health care clearinghouse, health care provider, health information, 
health plan, individually identifiable health information, standard, 
and standard setting organization.
    Section 1172 of the Act makes the standard adopted under part C 
applicable to: (1) Health plans, (2) health care clearinghouses, and 
(3) health care providers who transmit health information in electronic 
form in connection with transactions referred to in section 1173(a)(1) 
of the Act (hereinafter referred to as the ``covered entities''). 
Section 1172 also contains requirements concerning the adoption of 
standards, including the role of standard setting organizations and 
required consultations, summarized below.
    Section 1173 of the Act requires the Secretary to adopt standards 
for transactions, and data elements for such transactions, to enable 
health information to be exchanged electronically. Section 1173(a)(1) 
describes the transactions that are covered, which include the nine 
transactions listed in section 1173(a)(2) and other transactions 
determined appropriate by the Secretary. The remainder of section 1173 
sets out requirements for the specific standards the Secretary is to 
adopt: unique health identifiers, code sets, security standards, 
electronic signatures, and transfer of information among health plans. 
Of particular relevance to this proposed rule is section 1173(d), the 
security standard provision. The security standard authority applies to 
both the transmission and the maintenance of health information and 
requires the entities described in section 1172(a) to maintain 
reasonable and appropriate safeguards to ensure the integrity and 
confidentiality of the information, protect against reasonably 
anticipated threats or hazards to the security or integrity of the 
information or unauthorized uses or disclosures of the information, and 
to ensure compliance with part C by the entity's officers and 
employees.
    In section 1174 of the Act, the Secretary is required to establish 
standards for all of the above transactions, except claims attachments, 
by February 21, 1998. A proposed rule for most of the transactions was 
published in 1998 with the final rule expected by the end of 1999. The 
delay was caused by the deliberate consensus building process working 
with industry and the large number of comments received (about 17,000).
    Generally, after a standard is established, it may not be changed 
during the first year after adoption except for changes that are 
necessary to permit compliance with the standard. Modifications to any 
of these standards may be made after the first year, but not more 
frequently than once every 12 months. The Secretary also must ensure 
that procedures exist for the routine maintenance, testing, enhancement 
and expansion of code sets and that there are crosswalks from prior 
versions.
    Section 1175 of the Act prohibits health plans from refusing to 
process, or from delaying processing of, a transaction that is 
presented in standard format. It also establishes a timetable for 
compliance: each person to whom a standard or implementation 
specification applies is required to comply with the standard within 24 
months (or 36 months for small health plans) of its adoption. A health 
plan or other entity may, of course, comply voluntarily before the 
effective date. The section also provides that compliance with 
modifications to standards or implementation specifications must be 
accomplished by a date designated by the Secretary, which date may not 
be earlier than 180 days from the notice of change.
    Section 1176 of the Act establishes civil monetary penalties for 
violation of the provisions in part C of title XI of the Act, subject 
to several limitations. Penalties may not be more than $100 per person 
per violation and not more than $25,000 per person for violations of a 
single standard for a calendar year. The procedural provisions of 
section 1128A of the Act apply to actions taken to obtain civil 
monetary penalties under this section.
    Section 1177 establishes penalties for any person that knowingly 
uses a unique health identifier, or obtains or discloses individually 
identifiable health information in violation of the part. The penalties 
include: (1) A fine of not more than $50,000 and/or imprisonment of not 
more than 1 year; (2) if the offense is ``under false pretenses,'' a 
fine of not more than $100,000 and/or imprisonment of not more than 5 
years; and (3) if the offense is with intent to sell, transfer, or use 
individually identifiable health information for commercial advantage, 
personal gain, or malicious harm, a fine of not more than $250,000 and/
or imprisonment of not more than 10 years. We note that these penalties 
do not affect any other penalties that may be imposed by other federal 
programs.

[[Page 59922]]

    Under section 1178 of the Act, the requirements of part C, as well 
as any standards or implementation specifications adopted thereunder, 
preempt contrary State law. There are three exceptions to this general 
rule of preemption: State laws that the Secretary determines are 
necessary for certain purposes set forth in the statute; State laws 
that the Secretary determines address controlled substances; and State 
laws relating to the privacy of individually identifiable health 
information that are contrary to and more stringent than the federal 
requirements. There also are certain areas of State law (generally 
relating to public health and oversight of health plans) that are 
explicitly carved out of the general rule of preemption and addressed 
separately.
    Section 1179 of the Act makes the above provisions inapplicable to 
financial institutions or anyone acting on behalf of a financial 
institution when ``authorizing, processing, clearing, settling, 
billing, transferring, reconciling, or collecting payments for a 
financial institution.'' Finally, as explained above, section 264 
requires the Secretary to issue standards with respect to the privacy 
of individually identifiable health information transmitted in 
connection with the transactions described in section 1173(a)(1). 
Section 264 also contains a preemption provision that provides that 
contrary provisions of State laws that are more stringent than the 
federal standards, requirements, or implementation specifications will 
not be preempted.

C. Administrative Costs

    Section 1172(b) of the Act provides that ``(a)ny standard adopted 
under this part (part C of title XI of the Act) shall be consistent 
with the objective of reducing the administrative costs of providing 
and paying for health care.'' As is more fully discussed in the 
Regulatory Impact and Regulatory Flexibility analyses below, we 
recognize that the proposed privacy standards would entail substantial 
initial and ongoing administrative costs for entities subject to the 
rules. However, as the analyses also indicate, even if the rules 
proposed below are considered in isolation, they should produce 
administrative and other cost savings that should more than offset such 
costs on a national basis. It is also the case that the privacy 
standards, like the security standards authorized by section 1173(d) of 
the Act, are necessitated by the technological advances in information 
exchange that the remaining Administrative Simplification standards 
facilitate for the health care industry. The same technological 
advances that make possible enormous administrative cost savings for 
the industry as a whole have also made it possible to breach the 
security and privacy of health information on a scale that was 
previously inconceivable. The Congress recognized that adequate 
protection of the security and privacy of health information is a sine 
qua non of the increased efficiency of information exchange brought 
about by the electronic revolution, by enacting the security and 
privacy provisions of the law. Thus, even if the rules proposed below 
were to impose net costs, which we do not believe they do, they would 
still be ``consistent with'' the objective of reducing administrative 
costs for the health care system as a whole.

D. Consultations

    [Please label comments about this section with the subject: 
``Consultations'']
    The Congress explicitly required the Secretary to consult with 
specified groups in developing the standards under sections 262 and 
264. Section 264(d) of HIPAA specifically requires the Secretary to 
consult with the National Committee on Vital and Health Statistics 
(NCVHS) and the Attorney General in carrying out her responsibilities 
under the section. Section 1172(b)(3) of the Act, which was enacted by 
section 262, requires that, in developing a standard under section 1172 
for which no standard setting organization has already developed a 
standard, the Secretary must, before adopting the standard, consult 
with the National Uniform Billing Committee (NUBC), the National 
Uniform Claim Committee (NUCC), the Workgroup for Electronic Data 
Interchange (WEDI), and the American Dental Association (ADA). Section 
1172(f) also requires the Secretary to rely on the recommendations of 
the NCVHS and consult with other appropriate federal and State agencies 
and private organizations.
    We engaged in the required consultations including the Attorney 
General, NUBC, NUCC, WEDI and the ADA. We consulted with the NCVHS in 
developing the Recommendations, upon which this proposed rule is based. 
In addition we are continuing to consult with this committee by 
requesting the committee to review this proposed rule and provide 
comments, and recommendations will be taken into account in developing 
the final regulation. We consulted with representatives of the National 
Congress of American Indians, the National Indian Health Board, and the 
self governance tribes. We also met with representatives of the 
National Governors' Association, the National Conference of State 
Legislatures, the National Association of Public Health Statistics and 
Information Systems, and a number of other State organizations to 
discuss the framework for the proposed rule, issues of special 
interests to the States, and the process for providing comments on the 
proposed rule.
    In addition to the required consultations, we met with numerous 
individuals, entities, and agencies regarding the regulation, with the 
goal of making these standards as compatible as possible with current 
business practices, while still enhancing privacy protection. Relevant 
federal agencies participated in an interagency working group, with 
additional representatives from all operating divisions and many staff 
offices of HHS. The following federal agencies and offices were 
represented on the interagency working group: the Department of 
Justice, the Department of Commerce, the Social Security 
Administration, the Department of Defense, the Department of Veterans 
Affairs, the Department of Labor, the Office of Personnel Management, 
and the Office of Management and Budget. The interagency working group 
developed the policies of the proposed rules set forth below.

E. Summary and Purpose of the Proposed Rule

    [Please label comments about this section with the subject: 
``Summary and purpose'']
    The following outlines the provisions and operations of this 
proposed rule and is intended to provide a framework for the following 
preamble. A more detailed discussion of the authority, rationale, and 
implementation can be found in Section II of the preamble, Provisions 
of the Proposed Rule.
    As described in more detail in preamble section I.B, above, the 
HIPAA requires the Secretary of HHS to promulgate a series of standards 
relating to the electronic exchange of health information. Collectively 
these are known as the Administrative Simplification provisions. In 
addition to those standards, the Secretary was required to develop and 
submit to the Congress recommendations for the privacy rights that an 
individual who is a subject of individually identifiable health 
information should have, the procedures that should be established for 
the exercise of such rights, and the

[[Page 59923]]

uses and disclosures of such information that should be authorized.
    On September 11, 1997, the Secretary presented to the Congress her 
Recommendations for protecting the ``Confidentiality of Individually-
Identifiable Health Information'' (the ``Recommendations''), as 
required by section 264 (a) of HIPAA. In those Recommendations, the 
Secretary called for new federal legislation to create a national floor 
of standards that provide fundamental privacy rights for patients, and 
that define responsibilities for those who use and disclose 
identifiable health information.
    The Recommendations elaborated on the components that should be 
included in privacy legislation. These components included new 
restrictions on the use and disclosure of health information, the 
establishment of new consumer rights, penalties for misuse of 
information, and redress for those harmed by misuse of their 
information. The Recommendations served, to the extent possible under 
the HIPAA legislative authority, as a template for the rules proposed 
below. They are available on the HHS website at http://aspe.hhs.gov/
admnsimp/pvcrec.htm.
    The Secretary's Recommendations set forth the a framework for 
federal privacy legislation. Such legislation should:
     Allow for the smooth flow of identifiable health 
information for treatment, payment, and related operations, and for 
specified additional purposes related to health care that are in the 
public interest.
     Prohibit the flow of identifiable information for any 
additional purposes, unless specifically and voluntarily authorized by 
the subject of the information.
     Put in place a set of fair information practices that 
allow individuals to know who is using their health information, and 
how it is being used.
     Establish fair information practices that allow 
individuals to obtain access to their records and request amendment of 
inaccurate information.
     Require persons who hold identifiable health information 
to safeguard that information from inappropriate use or disclosure.
     Hold those who use individually identifiable health 
information accountable for their handling of this information, and to 
provide legal recourse to persons harmed by misuse.
    We believed then, and still believe, that there is an urgent need 
for legislation to establish comprehensive privacy standards for all 
those who pay and provide for health care, and those who receive 
information from them.
    This proposed rule implements many of the policies set forth in the 
Recommendations. However, the HIPAA legislative authority is more 
limited in scope than the federal statute we recommend, and does not 
always permit us to propose the policies that we believe are optimal. 
Our major concerns with the scope of the HIPAA authority include the 
limited number of entities to whom the proposed rule would be 
applicable, and the absence of strong enforcement provisions and a 
private right of action for individuals whose privacy rights are 
violated.
    The Recommendations call for legislation that applies to health 
care providers and payers who obtain identifiable health information 
from individuals and, significantly, to those who receive such 
information from providers and payers. The Recommendations follow 
health information from initial creation by a health plan or health 
care provider, through various uses and disclosures, and would 
establish protections at each step: ``We recommend that everyone in 
this chain of information handling be covered by the same rules.'' 
However, the HIPAA limits the application of our proposed rule to 
health plans, health care clearinghouses, and to any health care 
provider who transmits health information in electronic form in 
connection with transactions referred to in section 1173(a)(1) of the 
Act (the ``covered entities''). Unfortunately, this leaves many 
entities that receive, use and disclose protected health information 
outside of the system of protection that we propose to create.
    In particular, the proposed regulation does not directly cover many 
of the persons who obtain identifiable health information from the 
covered entities. In this proposed rule we are, therefore, faced with 
creating new regulatory permissions for covered entities to disclose 
health information, but cannot directly put in place appropriate 
restrictions on how many likely recipients of such information may use 
and re-disclose such information. For example, the Secretary's 
Recommendations proposed that protected health information obtained by 
researchers not be further disclosed except for emergency 
circumstances, for a research project that meets certain conditions, 
and for oversight of research. In this proposed rule, however, we 
cannot impose such restrictions. Additional examples of persons who 
receive this information include workers compensation carriers, 
researchers, life insurance issuers, employers and marketing firms. We 
also do not have the authority to directly regulate many of the persons 
that covered entities hire to perform administrative, legal, 
accounting, and similar services on their behalf, and who would obtain 
health information in order to perform their duties. This inability to 
directly address the information practices of these groups leaves an 
important gap in the protections provided by the proposed rule.
    In addition, only those providers who engage in the electronic 
administrative simplification transactions can be covered by this rule. 
Any provider who maintains a solely paper information system would not 
be subject to these privacy standards, thus leaving another gap in the 
system of protection we propose to create.
    The need to match a regulation limited to a narrow range of covered 
entities with the reality of information sharing among a wide range of 
entities leads us to consider limiting the type or scope of the 
disclosures permitted under this regulation. The disclosures we propose 
to allow in this rule are, however, necessary for smooth operation of 
the health care system and for promoting key public goals such as 
research, public health, and law enforcement. Any limitation on such 
disclosures could do more harm than good.
    Requirements to protect individually identifiable health 
information must be supported by real and significant penalties for 
violations. We recommend federal legislation that would include 
punishment for those who misuse personal health information and redress 
for people who are harmed by its misuse. We believe there should be 
criminal penalties (including fines and imprisonment) for obtaining 
health information under false pretenses, and for knowingly disclosing 
or using protected health information in violation of the federal 
privacy law. We also believe that there should be civil monetary 
penalties for other violations of the law and that any individual whose 
rights under the law have been violated, whether negligently or 
knowingly, should be permitted to bring an action for actual damages 
and equitable relief. Only if we put the force of law behind our 
rhetoric can we expect people to have confidence that their health 
information is protected, and ensure that those holding health 
information will take their responsibilities seriously.
    In HIPAA, Congress did not provide such enforcement authority. 
There is no private right of action for individuals to enforce their 
rights, and we are concerned that the penalty structure

[[Page 59924]]

does not reflect the importance of these privacy protections and the 
need to maintain individuals' trust in the system. For these and other 
reasons, we continue to call for federal legislation to ensure that 
privacy protection for health information will be strong and 
comprehensive.
1. Applicability
    a. Entities covered. Under section 1172(a) of the Act, the 
provisions of this proposed rule apply to health plans, health care 
clearinghouses, and to any health care provider who transmits health 
information in electronic form in connection with transactions referred 
to in section 1173(a)(1) of the Act (the ``covered entities''). The 
terms health plan, health care provider, and health care clearinghouse 
are defined in proposed Sec. 160.103.
    As noted above, because we do not have the authority to apply these 
standards directly to any entity that is not a covered entity, the 
proposed rule does not directly cover many of the persons who obtain 
identifiable health information from the covered entities. Examples of 
persons who receive this information include contractors, third-party 
administrators, researchers, public health officials, life insurance 
issuers, employers and marketing firms. We would attempt to fill this 
gap in our legislative authority in part by requiring covered entities 
to apply many of the provisions of rule to the entities with whom they 
contract for administrative and other services. The proposed provision 
is outlined in more detail below in the discussion of business 
partners.
    b. Protected health information. We propose to apply the 
requirements of this rule to the subset of individual identifiable 
health information which is maintained or transmitted by covered 
entities and which is or has been in electronic form. The provisions of 
the rule would apply to the information itself, referred to as 
protected health information in this rule, and not to the particular 
records in which the information is contained. Once information has 
been maintained or transmitted electronically by a covered entity, the 
protections would follow the information in whatever form, including 
paper records, in which it exists (while it is held by a covered 
entity).
    We understand that our proposal would create a situation in which 
some health information would be protected while other similar 
information (e.g., health information contained in paper records that 
has not been maintained or transmitted electronically) would not be 
protected. We are concerned about the potential confusion that such a 
system might entail, but we believe that applying the provisions of the 
rule to information only in electronic form would result in no real 
protection for health care consumers. We have requested comment on 
whether we should extend the scope of the rule to all individually 
identifiable health information, including purely paper records, 
maintained by covered entities. Although we are concerned that 
extending our regulatory coverage to all records might be inconsistent 
with the intent of the provisions in the HIPAA, we believe that we do 
have the authority to do so and that there are sound rationale for 
providing a consistent level of protection to all individually 
identifiable health information held by covered entities.
2. General Rules
    The purpose of our proposal is to define and limit the 
circumstances in which an individual's protected heath information may 
be used or disclosed by others. We are proposing to make the use and 
exchange of protected health information relatively easy for health 
care purposes, and more difficult for purposes other than health care.
    Covered entities would be prohibited from using or disclosing 
protected health information except as provided in the proposed rule. 
Under the rule, covered entities could use or disclose protected health 
information with individual authorization, as provided in proposed 
Sec. 164.508. Covered entities could use or disclose protected health 
information without authorization for treatment, payment and health 
care operations, as provided in Sec. 164.506(a). (The terms 
``treatment,'' ``payment'' and ``health care operations'' are defined 
in proposed Sec. 164.504). Covered entities also would be permitted to 
use or disclose a patient's protected health information without 
authorization for specified public and public policy-related purposes, 
including public health, research, health oversight, law enforcement, 
and use by coroners, as provided in proposed Sec. 164.510. Covered 
entities would be permitted to use and disclose protected health 
information when required to do so by other law, such as mandatory 
reporting under state law or pursuant to a search warrant.
    Covered entities would be required by this rule to disclose 
protected health information for only two purposes: to permit 
individuals to inspect and copy protected health information about 
them, pursuant to proposed Sec. 164.514, and for enforcement of this 
rule pursuant to proposed Sec. 164.522.
    Under our proposal, most uses and disclosures of an individual's 
protected health information would not require explicit authorization 
by the individual, but would be restricted by the provisions of the 
rule. As discussed in section II.C. of this preamble, we propose to 
substitute regulatory protections for the pro forma authorizations that 
are used today. The rules would create a sphere of privacy protection 
that includes covered entities who engage in treatment or payment, and 
the business partners they hire to assist them. While written consent 
for these activities would not be required, new restrictions on both 
internal uses and external disclosures would be put in place to protect 
the information.
    Our proposal is based on the principle that a combination of strict 
limits on how plans and providers can use and disclose identifiable 
health information, adequate notice to patients about how such 
information will be used, and patients' rights to inspect, copy and 
amend protected health information about them, will provide patients 
with better privacy protection and more effective control over the 
dissemination of their information than alternative approaches to 
patient protection and control.
    A central aspect of this proposal is the principle of ``minimum 
necessary'' disclosure. (See proposed Sec. 164.506(a)). With certain 
exceptions, permitted uses and disclosures of protected health 
information would be restricted to the minimum amount of information 
necessary to accomplish the purpose for which the information is used 
or disclosed, taking into consideration practical and technological 
limitations (including the size and nature of the covered entity's 
business) and costs. While we recognize that there are legitimate uses 
of protected health information for which patient authorization should 
not be required, the privilege of this access carries with it an 
obligation to safeguard the information. Covered entities would be 
required to take steps to limit the amount of protected health 
information used or disclosed to the information necessary to meet the 
purpose of the use or disclosure. These policies could include limiting 
access to the information to a subset of employees who need to use the 
information in the course of their work, and limiting the amount of 
information disclosed from a record to the information needed by the 
recipient to fulfill the purpose of the disclosure.
    We propose that individuals be able to request that a covered 
entity restrict the protected health information that

[[Page 59925]]

results from that encounter (with the exception of encounters for 
emergency treatment) from further use or disclosure for treatment, 
payment, and health care operations. (See proposed Sec. 164.506(c)). 
Covered entities would not be required to agree to restrictions 
requested by individuals; the rule would only enforce a restriction 
that has been agreed to by the covered entity and the individual.
    Today's health care system is a complex business involving multiple 
individuals and organizations engaging in a variety of commercial 
relationships. An individual's privacy should not be compromised when a 
covered entity engages in such normal business relationships. To 
accomplish this result, the rule would, with narrow exceptions, require 
covered entities to ensure that the business partners with which they 
share protected health information understand--through contract 
requirements `` that they are subject to standards regarding use and 
disclosure of protected health information and agree to abide by such 
rules. (See proposed Sec. 164.506(e)). Other than for purposes of 
treatment consultation or referral, we would require a contract to 
exist between the covered entity and the business partner that would, 
among other specified provisions, limit the business partner's uses and 
disclosures of protected health information to those permitted by the 
contract and would impose certain security, inspection and reporting 
requirements on the business partner.
    We do not intend to interfere with business relationships in the 
health care industry, but rather to ensure that the privacy of the 
information shared in these relationships is protected. Business 
partners would not be permitted to use or disclose protected health 
information in ways that would not be permitted by the covered entity 
itself.
3. Scalability
    The privacy standards would need to be implemented by all covered 
entities, from the smallest provider to the largest, multi-state health 
plan. For this reason, we propose the privacy principles and standards 
that covered entities must meet, but leave the detailed policies and 
procedures for meeting these standards to the discretion of each 
covered entity. We intend that implementation of these standards be 
flexible and scalable, to account for nature of each covered entity's 
business, as well as the covered entity's size and resources. A single 
approach to implementation of these requirements would be neither 
economically feasible nor effective in safeguarding health information 
privacy. Instead, we would require that each covered entity assess its 
own needs and devise and implement privacy policies appropriate to its 
size, its information practices, and its business requirements. 
Examples of how implementation of these standards are scalable are 
provided in the relevant sections of this preamble. (See, also, the 
discussion in preamble sections II.C. and III.)
4. Uses and Disclosures With Individual Authorization
    The rule would require that covered entities have authorization 
from individuals before using or disclosing their protected health 
information for any purpose not otherwise recognized by this rule. In 
Sec. 164.508, we propose rules for obtaining authorizations. 
Authorizations are needed in a wide array of circumstances. Entities 
not covered by this rule often want access to individually identifiable 
health information . For example, a potential employer may require 
health information as part of a background check for security purposes, 
or the patient may request a plan or provider to disclose information 
to obtain eligibility for disability benefits or to an attorney for use 
in a law suit. Covered entities may also seek such an authorization in 
order to use protected health information for a purpose not otherwise 
permitted under this rule. For example, a health plan may wish to use a 
person's records for developing a marketing strategy.
    The proposed authorization requirements are intended to ensure that 
an individual's authorization is truly voluntary. We would prohibit 
covered entities from conditioning treatment or payment on the 
individual agreeing to disclose information for other purposes. We also 
would require authorizations to clearly and specifically describe the 
information to be disclosed. If an authorization is sought so that a 
covered entity may sell, barter, or otherwise exchange the information 
for purposes other than treatment, payment, or health care operations, 
the covered entity would have to disclose this fact on the 
authorization form. We would also require authorizations to be 
revocable. We do not seek to limit the purposes for which authorization 
of records disclosure may be sought, but rather to ensure that these 
authorizations are voluntary, fair, and enforceable.
    While the provisions of this proposed rule are intended to make 
authorizations for treatment and payment purposes unnecessary, some 
States may continue to require them. This rule would not supersede such 
State requirements generally, but would impose a new requirement that 
such State-mandated authorizations must be physically separate from an 
authorization for other purposes described in this rule.
5. Uses and Disclosures for Treatment, Payment and Health Care 
Operations
    Under this rule, covered entities with limited exceptions would be 
permitted to use and disclose protected health information without 
individual authorization for treatment and payment purposes, and for 
related purposes that we have defined as health care operations. (See 
Sec. 164.506.) We would construe the terms ``treatment'' and 
``payment'' broadly. In section II.B. of this preamble, we describe the 
types of activities that would be considered health care operations.
6. Permissible Uses and Disclosures for Purposes Other Than Treatment, 
Payment and Health Care Operations
    Individually identifiable health information is needed to support 
certain national priority activities, such as reducing health care 
fraud, improving the quality of treatment through research, protecting 
the public health, and responding to emergency situations. In many 
cases, the need to obtain authorization for use of health information 
would create significant obstacles in efforts to fight crime, 
understand disease, and protect public health. We examined the many 
uses that the health professions, related industries, and the 
government make of health information and we are aware of the concerns 
of privacy and consumer advocates about these uses.
    After balancing privacy and other social values, we are proposing 
rules that would permit use or disclosure of health information without 
individual authorization for the following national priority activities 
and activities that allow the health care system to operate smoothly:
     Oversight of the health care system
     Public health functions
     Research
     Judicial and administrative proceedings
     Law enforcement
     Emergency circumstances
     To provide information to next-of-kin
     For identification of the body of a deceased person, or 
the cause of death
     For government health data systems
     For facility patient directories
     To banks, to process health care payments and premiums
     For management of active duty military and other special 
classes of individuals

[[Page 59926]]

     Where other law requires such disclosure and no other 
category of permissible disclosures would allow the disclosure
    The rule would specify conditions that would need to be met in 
order for the use or disclosure of protected health information to be 
permitted for each of these purposes. (See Sec. 164.514) We have 
proposed conditions tailored to the need for each type of use or 
disclosure, and to the types of organizations involved in each such 
activity. These uses and disclosures, and the conditions under which 
they may occur, are discussed in section II. F of this preamble.
    The uses and disclosures that would be permitted under proposed 
rule would be just that--permissible. Thus, for disclosures that are 
not compelled by other law, providers and payers would be free to 
disclose or not, according to their own policies and ethical 
principles. We propose these rules as a basic set of legal controls, 
but ethics and professional practice may dictate more guarded 
disclosure policies. At the same time, nothing in this rule would 
provide authority for a covered entity to restrict or refuse to make a 
disclosure mandated by other law.
7. Individual Rights
    We are proposing to establish several basic rights for individuals 
with respect to their protected health information. We propose that 
individuals be able to obtain access to protected health information 
about them, which would include a right to inspect and obtain a copy of 
such information. See proposed Sec. 164.514. The right of access would 
extend to an accounting of disclosures of the protected health 
information for purposes other than treatment, payment, and health care 
operations. See proposed Sec. 164.515.
    In Sec. 164.512, we also propose that individuals have a right to 
receive a written notice of information practices from covered 
entities. While the primary purpose of this notice would be to inform 
individuals about the uses and disclosures that a covered entity would 
intend to make with the information, the notice also would serve to 
limit the activities of the covered entity--an otherwise lawful use or 
disclosure that does not appear in the entity's notice would not be 
permitted. The covered entity's uses and disclosures could be stated in 
broad terms, but an entity would not be able to make a use or 
disclosure that is not included in its notice. The covered entity could 
modify its notice at any time and apply revised practices to existing 
and new information held by the covered entity.
    In addition, we propose that individuals have the right to request 
amendment or correction of protected health information that is 
inaccurate or incomplete. See proposed Sec. 164.516. We are proposing 
procedural requirements and deadlines to implement each of these 
individual rights.
8. Administrative Requirements and Policy Development and Documentation
    In our Recommendations, we call for a federal law that requires 
holders of identifiable health information to implement safeguards to 
protect it from inappropriate access, use or disclosure. No legislation 
or rule can effectively specify how to do this for every holder of 
health information. But federal rules can and should require those who 
hold identifiable health information to develop and implement basic 
administrative procedures to protect that information and protect the 
rights of the individual with respect to that information.
    To accomplish this goal, we propose that covered entities be 
required to designate a privacy official, develop a privacy training 
program for employees, implement safeguards to protect health 
information from intentional or accidental misuse, provide some means 
for individuals to lodge complaints about the covered entity's 
information practices, and develop a system of sanctions for employees 
and business partners who violate the entity's policies or procedures. 
(See proposed Sec. 164.518.). We also propose, in Sec. 164.520, to 
require covered entities to maintain documentation of their policies 
and procedures for complying with the requirements of this proposed 
rule. The purpose of these requirements is to ensure that covered 
entities make explicit decisions about who would have access to 
protected health information, how that information would be used within 
the entity, and when that information would or would not be disclosed 
to other entities.
9. Preemption
    The HIPAA provides that the rule promulgated by the Secretary may 
not preempt state laws that are in conflict with the regulatory 
requirements and that provide greater privacy protections. The HIPAA 
also provides that standards issued by the Secretary will not supercede 
certain other State laws, including: State laws relating to reporting 
of disease or injury, child abuse, birth or death, public health 
surveillance, or public health investigation or intervention; State 
regulatory reporting; State laws which the Secretary finds are 
necessary to prevent fraud and abuse, to ensure appropriate State 
regulation of insurance, for State reporting on health care delivery or 
costs, or for other purposes; or, State laws which the Secretary finds 
address controlled substances. These provisions are discussed in more 
detail in preamble section II.I.1.
    This proposed rule also must be read in conjunction with other 
federal laws and regulations that address the use and disclosure of 
health information. These issues are discussed in preamble section 
II.I.2.
    In general, the rule that we are proposing would create a federal 
floor of privacy protection, but would not supercede other applicable 
law that provide greater protection to the confidentiality of health 
information. In general, our rule would not make entities subject to a 
state laws to which they are not subject today.
10. Enforcement
    The HIPAA grants the Secretary the authority to impose civil 
monetary penalties against covered entities which fail to comply with 
the requirements of this rule, and also establishes criminal penalties 
for certain wrongful disclosures of protected health information. The 
civil fines are capped at $25,000 for each calendar year for each 
provision that is violated. The criminal penalties are graduated, 
increasing if the offense is committed under false pretenses, or with 
intent to sell the information or reap other personal gain. The statute 
does not provide for a private right of action for individuals.
    We propose to create a complaint system to permit individuals to 
make complaints to the Secretary about potential violations of this 
rule. We also propose that covered entities develop a process for 
receiving complaints from individuals about the entities' privacy 
practices. (See Sec. 164.522.) Our intent would be to work with covered 
entities to achieve voluntary compliance with the proposed standards.
11. Conclusion
    Although the promise of these proposed standards cannot become 
reality for many patients because of the gaps in our authority, we 
believe they would provide important new protections. By placing strict 
boundaries around the ways covered entities could use and disclose 
information, these rules would protect health information at its 
primary sources: health plans and health care providers. By requiring 
covered entities to inform patients about how their information is 
being used and

[[Page 59927]]

shared, by requiring covered entities to provide access to that 
information, and by ensuring that authorizations would be truly 
voluntary, these rules would provide patients with important new tools 
for understanding and controlling information about them. By requiring 
covered entities to document their privacy practices, this rule would 
focus attention on the importance of privacy, and reduce the ways in 
which privacy is compromised through inattention or misuse.
    With the Secretary's recommenda-tions and these proposed rules, we 
are attempting to further two important goals: to allow the free flow 
of health information needed to provide and promote high quality health 
care, while assuring that individuals' health information is properly 
protected. We seek a balance that permits important uses of information 
privacy of people who seek care and healing. We believe our 
Recommendations find that balance, and have attempted to craft this 
proposed rule to strike that balance as well.
    We continue to believe, however, that federal legislation is the 
best way to guarantee these protections. The HIPAA legislative 
authority does not allow full implementation of our recommended 
policies in this proposed rule. The legislation limits the entities 
that can be held responsible for their use of protected health 
information, and the ways in which the covered entities can be held 
accountable. For these and other reasons, we continue to call upon 
Congress to pass comprehensive federal privacy legislation. Publication 
of this proposed rule does not diminish our firm conviction that such 
legislation should be enacted as soon as possible.

II. Provisions of the Proposed Rule

    We propose to establish a new subchapter C to title 45 of the Code 
of Federal Regulations. Although the rules proposed below would only 
establish two new parts (parts 160 and 164), we anticipate the new 
subchapter C will eventually contain three parts, part 160, 162, and 
164, with parts 161 and 163 being reserved for future expansion, if 
needed. Part 160 will contain general requirements and provisions 
applicable to all of the regulations issued under sections 262 and 264 
of Public Law 104-191 (the Administrative Simplification provisions of 
HIPAA). We anticipate that Part 162 will contain the Administrative 
Simplification regulations relating to transactions, code sets and 
identifiers. The new part 164 will encompass the rules relating to the 
security standards authorized by section 1173(d), the electronic 
signature standard authorized by section 1173(e), and the privacy rules 
proposed below.
    The new part 164 will be composed of two subparts: subparts A and 
E, with B, C, and D being reserved. Subpart A will consist of general 
provisions and subpart E will consist of the final privacy rules. 
Because the new part 160 will apply to the privacy rules, as well as 
the other Administrative Simplification rules, it is set out below.

A. Applicability

    [Please label comments about this section with the subject: 
``Applicability'']
    The discussion below describes the entities and the information 
that would be subject to the proposed regulation.
1. Covered Entities
    The standards in this proposed regulation would apply to all health 
plans, all health care clearinghouses, and all health care providers 
that transmit health information in an electronic form in connection 
with a standard transaction. In this proposed rule, these entities are 
referred to as ``covered entities.'' See definition at proposed 
Sec. 160.103.
    A health plan is defined by section 1171 to be an individual or 
group plan that provides for, or pays the cost of, medical care. The 
statute expressly includes a significant group of employee welfare 
benefit plans, state-regulated insurance plans, managed care plans, and 
essentially all government health plans, including Medicare, Medicaid, 
the veterans health care program, and plans participating in the 
Federal Employees Health Benefits Program. See discussion of the 
definition in section II.B.
    A health care provider would be a provider of services as defined 
in section 1861(u) of the Act, 42 U.S.C. 1395x, a provider of medical 
or other health services as defined in section 1861(s) of the Act, and 
any other person who furnishes, bills or is paid for health care 
services or supplies in the normal course of business. See discussion 
of the definition in section II.B. Health care providers would be 
subject to the provisions of the rule if they transmit health 
information in electronic form in connection with a standard 
transaction. Standard transactions include claims and equivalent 
encounter information, eligibility and enrollment transactions, premium 
payments, claims attachments, and others. See proposed Sec. 160.103. 
Health care providers who themselves do not directly conduct electronic 
transactions would become subject to the provisions of the proposed 
rule if another entity, such as a billing agent or hospital, transmits 
health information in electronic form in connection with a standard 
transaction on their behalf.
    A health care clearinghouse would be a public or private entity 
that processes or facilitates the processing of nonstandard data 
elements of health information into standard data elements. See section 
1171(2) of the Act. For purposes of this rule, we would consider 
billing services, repricing companies, community health management 
information systems or community health information systems, ``value-
added'' networks, switches and similar organizations to be health care 
clearinghouses for purposes of this part only if they actually perform 
the same functions as a health care clearinghouse. See discussion of 
the definition in section II.B.
2. Covered Information
    We propose to apply the standards in this proposed regulation to 
individually identifiable health information that is or has been 
electronically transmitted or maintained by a covered entity, including 
such information when it is in non-electronic form (e.g., printed on 
paper) or discussed orally. In this proposed regulation, such 
information is referred to as ``protected health information.'' See 
discussion of the definition in section II.B. Under HIPAA, our 
authority to promulgate privacy standards extends to all individually 
identifiable health information, in any form, maintained or transmitted 
by a covered entity. For reasons discussed below, we are proposing to 
limit the application of the proposed standards to protected health 
information. Below we invite comment on whether we should apply the 
standards to a broader set of individually identifiable health 
information in the future.
    Under the proposal, the standards apply to information, not to 
specific records. Thus, once protected health information is 
transmitted or maintained electronically, the protections afforded by 
this regulation would apply to the information in any form and continue 
to apply as the information is printed, discussed orally or otherwise 
changed in form. It would also apply to the original paper version of 
information that is at some point transmitted electronically. The 
authority for, and implications of, this scope are discussed in detail 
in this section, below.
    This proposed regulation would not apply to information that has 
never been electronically maintained or transmitted by a covered 
entity.
    a. Legislative authority. Under HIPAA, we have authority to 
promulgate a

[[Page 59928]]

privacy standard that applies to all individually identifiable health 
information transmitted or maintained by a covered entity, including 
information in a non-electronic form. We recognize that there may be an 
expectation that we would apply privacy standards only to information 
that is electronically maintained and transmitted. Our prior proposals 
under HIPAA have addressed only electronically maintained and 
transmitted information. See Notices of Proposed Rulemaking (NPRM) 
published on May 7, 1998 (63 FR 25272 and 25320), June 16, 1998 (63 FR 
32784), and the proposed security standards published on August 12, 
1998 (63 FR 43242).
    In considering the appropriate reach of the proposed privacy 
standards, however, we determined that limiting the standards to 
electronic information would not be consistent with the requirement in 
HIPAA for the Secretary to address privacy, confidentiality and 
security concerns relating to individually identifiable health 
information.
    The HIPAA statute, taken as a whole, contemplates an information 
protection system that assures the privacy, confidentiality and 
integrity of health information. Two provisions in subtitle F of HIPAA 
address privacy and confidentiality concerns: section 264, titled 
``Recommendations with Respect to Privacy of Certain Health 
Information'' and section 1173(d), titled ``Security Standards for 
Health Information.'' See 42 U.S.C. 1320d-1320d-8, enacted as sections 
262 and 264 of HIPAA.
    In enacting HIPAA, Congress recognized that the increased 
accessibility of health information made possible by the widespread and 
growing use of electronic media and the new federal mandate for 
increased standardization of data, requires enhanced privacy and 
confidentiality protections. The House Report links privacy and 
security concerns stating: ``The standards adopted would protect the 
privacy and confidentiality of health information. Health information 
is considered relatively ``safe'' today, not because it is secure, but 
because it is difficult to access. These standards improve access and 
establish strict privacy protections.'' House Report No. 496, 104th 
Cong., 2d. Sess., at 99.
    Section 264(c) authorizes the Secretary to protect the privacy of 
individually identifiable health information transmitted in connection 
with the standard transactions. Section 1173(d) authorizes the 
Secretary to prescribe requirements that address the security, 
integrity, and confidentiality of health information maintained or 
transmitted, in any form or medium, by the covered entities.
    Neither the privacy authority in section 264(c) nor the security 
authority in 1173(d) exclusively limit the scope of protection to 
electronic information. Section 264(c) of HIPAA requires the Secretary 
to issue a regulation setting privacy standards for individually 
identifiable health information ``transmitted in connection with the 
transactions described in section 1173(a).'' This statutory language is 
not on its face limited to electronic transmissions of individually 
identifiable health information, although electronic transmissions of 
such information are clearly within its scope. Moreover, the section 
requires the regulations to address ``at least'' the subjects of the 
Secretary's Recommendations, which focus on individually identifiable 
health information, without reference to whether the information is 
electronic or not.
    The security provision also is not limited by its terms to 
electronically maintained information. Rather, section 1173(d) applies 
throughout to ``health information,'' a statutorily defined term that 
clearly covers information in both its electronic and non-electronic 
forms.
    In HIPAA, when Congress intended to limit health information to its 
electronic form, it did so explicitly. Section 1172(a)(3) of the 
statute says that the standards apply to health plans and to health 
care providers who transmit health information in electronic form in 
connection with the standard transactions (emphasis added); by 
contrast, the section 1173(d) requirements for information maintained 
or transmitted are not similarly qualified.
    Further support for the premise that the standards may reach 
information that is maintained or transmitted non-electronically is 
found within section 1173(d) itself. That section explicitly 
distinguishes within one subsection (Sec. 1173(d)(1)(A)) between 
``record systems used to maintain health information'' and 
``computerized record systems.'' Thus, the conclusion may be drawn that 
the record systems covered by the Sec. 1173(d) security standards are 
intended to include record systems other than those that are 
exclusively electronic or ``computerized.''
    Finally, the section that generally defines the HIPAA standard 
transactions, section 1173(a), is not limited by its terms to 
transactions that are electronic. Rather, although all of the 
transactions described can be performed electronically, all take paper 
and some take oral forms as well. Indeed, the purpose of the standards, 
including the security and privacy standards, is stated as ``to enable 
electronic exchange.'' This purpose would not preclude (and in fact 
would support) requirements that relate to non-electronic media where 
they support the overall goal of enabling electronic information 
exchange. Thus, we believe that the statute authorizes a privacy 
regulation covering health information in any form or medium maintained 
or transmitted by the covered entities.
    Although we believe that HIPAA authorizes the Secretary to issue 
regulations covering individually identifiable health information in 
any form, the proposed privacy standards in this NPRM are directed to 
protecting only individually identifiable health information that is or 
at some point has been electronically maintained or transmitted by a 
covered entity. Those standards do not cover health information that 
has never been in electronic form.
    We are proposing this approach because we believe that it focuses 
most directly on the primary concern raised by HIPAA: the fact that 
growing use of computerization in health care, including the rapid 
growth of electronic transfers of health information, gives rise to a 
substantial concern about the confidentiality of the health care 
information that is part of this growing electronic commerce. At the 
same time, could not adequately address the confidentiality concerns 
associated with electronic transfers of health information unless we 
address the resulting uses and disclosures of such information, in 
whatever form. Indeed, the protection offered by this standard would be 
devoid of meaning if all non-electronic records and transmissions were 
excluded. In that event, access to ``protected'' health information 
would become merely a matter of obtaining the information in a paper or 
oral form. Such a narrow reading of the statute would lead to a system 
in which individually identifiable health information transmitted as 
part of a claim would be protected only until the information was 
printed or read aloud, at which point protection would disappear. 
Previously protected information could be freely printed and 
redistributed, regardless of limits on further electronic 
redistribution. The statutory language does not compel such an 
anomalous result.
    In developing our proposal, we considered other approaches for 
determining the information that would be subject to the privacy 
standards. We

[[Page 59929]]

considered but rejected limiting the scope of the proposal to 
information in electronic form. For the reasons discussed above, such a 
narrow interpretation would render the standards nearly meaningless. We 
also considered applying the privacy standards to all individually 
identifiable health information in any form maintained or transmitted 
by a covered entity. There are clear advantages to this approach, 
including permitting covered entities to treat all individually 
identifiable health information under the same standards. We rejected 
that approach in favor of our proposed approach which we believe is 
more focused at the public concerns over health information 
confidentiality in an electronic communications age. We also were 
concerned about imposing additional burden with respect to health 
information that was less likely to present privacy concerns: paper 
records that are never reduced to electronic form are less likely to 
become disseminated broadly throughout the health care system. We 
invite comment on the approach that we are proposing and on whether 
alternate approaches to determining the health information that would 
be subject to this regulation would be more appropriate.
    We also considered making use of other statutory authorities under 
which we impose general operating or management conditions for programs 
(e.g., Medicare, grant programs) to enhance these proposed privacy 
protections. Doing so could enable us to apply these privacy standards 
to a wider range of entities than are currently affected, such as 
health care providers who do not transmit standard transactions 
electronically. We use many other authorities now to impose 
confidentiality and privacy requirements, although the current rules 
lack consistency. It is not clear whether using these other authorities 
would create more uniform protections or expanded enforcement options. 
Therefore we request comment on the concept of drawing on other 
authorities to amplify the protections of these privacy standards.
    b. Application to records containing protected and unprotected 
health information. Once transmitted or maintained electronically, 
protected health information is often mixed with unprotected health 
information in the same record. For example, under the proposed rules, 
information from a medical record that is electronically transmitted by 
a provider to a health plan and then returned to the original record 
would become protected health information, even though the rest of the 
information contained in the paper record may not be subject to these 
privacy rules.
    We reiterate that under the proposed rule, the protections would 
apply to the information itself, not to the particular record in which 
it is contained or transmitted. Therefore, an entity could not maintain 
duplicate records and only apply the protections to the information 
contained in the record that is electronically maintained or 
transmitted. For example, once an individual's name and diagnostic code 
is transmitted electronically between covered entities (or business 
partners), that information must be protected by both the transmitting 
and receiving entities in every record, written, electronic or other, 
in which it appears.
    We recognize that this approach may require some additional 
administrative attention to mixed records (records containing protected 
and unprotected health information) to ensure that the handling of 
protected health information conforms with these regulations. We 
considered ways to limit application of these protections to avoid such 
potential administrative concerns. However, these regulations would 
have little effect if not applicable to otherwise protected health 
information simply because it was combined with unprotected health 
information--any information could be lawfully disclosed simply by 
including some additional information. Likewise, these regulations 
would have no meaning if entities could then avoid applying the 
protections merely by maintaining separate duplicate records. A way to 
limit these rules to avoid application to mixed information without 
sacrificing basic protections is not apparent.
    Unlike the potential issues inherent in the protection of oral 
information, there may be relatively simple ways to reduce possible 
confusion in protecting mixed records. The risk of inappropriate use or 
disclosure of protected health information in a mixed record can be 
eliminated simply by handling all information in mixed records as if it 
were protected. It also may be possible to develop a ``watermark'' 
analogous to a copyright label, designating which written information 
is protected. We welcome comments on how best to protect information in 
mixed records, without creating unnecessary administrative burdens.
    Finally, we recognize that these rules may create awkward 
boundaries and enforcement ambiguities, and seek comment on how best to 
reduce these ambiguities while maintaining the basic protections 
mandated by the statute.
3. Interaction With Other Standards
    The privacy standards in this proposed regulation would be closely 
integrated with other standards that have been proposed under the HIPAA 
Administrative Simplification title. This is particularly true with 
respect to the proposed security standards published on August 12, 1998 
(63 FR 43242).
    We understand that we are proposing a broader scope of 
applicability with respect to covered information under these privacy 
standards than we have previously proposed under the security standard. 
We intend to solicit additional comments regarding the scope of 
information that should be addressed under the security standard in the 
near future.
    We also recognize that in this NPRM we are publishing slightly 
different definitions for some of the concepts that were defined in 
previously published NPRMs for the other standards. The differences 
resulted from the comments received on the previous NPRMs as well as 
the conceptual work done in the development of this NPRM. As we publish 
the final rules, we will bring all the definitions into conformance.
4. References to Other Laws
    The provisions we propose in this rule would interact with numerous 
other laws. For example, proposed Sec. 164.510 provides standards for 
certain uses or disclosures that are permitted in this rule, and in 
some cases references activities that are authorized by other 
applicable law, such as federal, State, tribal or territorial laws. In 
cases where this rule references ``law'' or ``applicable law'' we 
intend to encompass all applicable laws, decisions, rules, regulations, 
administrative procedures or other actions having the effect of law. We 
do not intend to exclude any applicable legal requirements imposed by a 
governmental body authorized to regulate in a given area. Where 
particular types of law are at issue, such as in the proposed 
provisions for preemption of State laws in subpart B of part 160, or 
permitted disclosures related to the Armed Forces in Sec. 164.510(m), 
we so indicate by referring to the particular type of law in question 
(e.g., ``State law'' or ``federal law'').
    When we describe an action as ``authorized by law,'' we mean that a 
legal basis exists for the activity. The phrase ``authorized by law'' 
is a term of art that includes both actions that are permitted and 
actions that are required by law. When we specifically discuss an 
action that is ``required'' or ``mandated,'' we mean that a law compels 
(or conversely, prohibits) the performance

[[Page 59930]]

of the activity in question. For example, in the health oversight 
context, disclosure of health information pursuant to a valid Inspector 
General subpoena, grand jury subpoena, civil investigative demand, or a 
statute or regulation requiring production of information justifying a 
claim would constitute a disclosure required by law.

B. Definitions. (Secs. 160.103 and 164.504)

    [Please label comments about this section with the subject: 
``Definitions'']
    Section 1171 of the Act defines several terms and our proposed 
rules would, for the most part, simply restate the law or adopt 
definitions previously defined in the other HIPAA proposed rules. In 
some instances, we propose definitions from the Secretary's 
Recommendations. We also propose some new definitions for convenience 
and efficiency of exposition, and others to clarify the application and 
operation of this rule. We describe the proposed definitions and 
discuss the rationale behind them, below.
    Most of the definitions would be defined in proposed Secs. 160.103 
and 164.504. The definitions at proposed Sec. 160.103 apply to all 
Administrative Simplification standards, including this privacy rule 
and the security standard. The definitions proposed in Sec. 164.504 
would apply only to this privacy rule. Certain other definitions are 
specific to particular sections of the proposed rule and are provided 
in those sections. The terms that are defined at proposed Sec. 160.103 
follow:
    1. Act. We would define ``Act'' to mean the Social Security Act, as 
amended. This definition would be added for convenience.
    2. Covered entity. This definition would be provided for 
convenience of reference and would mean the entities to which part C of 
title XI of the Act applies. These are the entities described in 
section 1172(a)(1): Health plans, health care clearinghouses, and 
health care providers who transmit any health information in electronic 
form in connection with a transaction referred to in section 1173(a)(1) 
of the Act (a ``standard transaction''). In the preamble we 
occasionally refer to health plans and the health care providers 
described above as ``covered plans,'' ``covered providers,'' or 
``covered plans and providers.''
    We note that health care providers who do not submit HIPAA 
transactions in standard form become covered by this rule when other 
entities, such as a billing service or a hospital, transmit standard 
electronic transactions on their behalf. The provider could not 
circumvent these requirements by assigning the task to its agent, since 
the agent would be deemed to be acting as the provider.
    3. Health care. We would define the term ``health care'' as it is 
defined in the Secretary's Recommendations. Health care means the 
provision of care, services, or supplies to a patient and includes any: 
(1) Preventive, diagnostic, therapeutic, rehabilitative, maintenance, 
or palliative care, counseling, service, or procedure with respect to 
the physical or mental condition, or functional status, of a patient or 
affecting the structure or function of the body; (2) sale or dispensing 
of a drug, device, equipment, or other item pursuant to a prescription; 
or (3) procurement or banking of blood, sperm, organs, or any other 
tissue for administration to patients.
    4. Health care clearinghouse. We would define ``health care 
clearinghouse'' as defined by section 1171(2) of the Act. The Act 
defines a ``health care clearinghouse'' as a ``public or private entity 
that processes or facilitates the processing of nonstandard data 
elements of health information into standard data elements.'' In 
practice, clearinghouses receive transactions from health care 
providers, health plans, other health care clearinghouses, or business 
partners of such entities, and other entities, translate the data from 
a given format into one acceptable to the entity receiving the 
transaction, and forward the processed transaction to that entity. 
There are currently a number of private clearinghouses that contract or 
perform this function for health care providers. For purposes of this 
rule, we would consider billing services, repricing companies, 
community health management information systems or community health 
information systems, ``value-added'' networks, switches and similar 
organizations to be health care clearinghouses for purposes of this 
part only if they actually perform the same functions as a health care 
clearinghouse.
    We would note that we are proposing to exempt clearinghouses from a 
number of the provisions of this rule that would apply to other covered 
entities (see Secs. 164.512, 164.514 and 164.516 below), because in 
most cases we do not believe that clearinghouses would be dealing 
directly with individuals. In many instances, clearinghouses would be 
considered business partners under this rule and would be bound by 
their contracts with covered plans and providers. See proposed 
Sec. 164.506(e). We would adopt this position with the caveat that the 
exemptions would be void for any clearinghouse that had direct contact 
with individuals in a capacity other than that of a business partner.
    5. Health care provider. Section 1171(3) of the Act defines 
``health care provider'' as a ``provider of medical services as defined 
in section 1861(u) of the Act, a provider of medical or other health 
services as defined in section 1861(s) of the Act, and any other person 
who furnishes health care services or supplies.'' We are proposing to 
define ``health care provider'' as the Act does, and clarify that a 
health care provider is limited to any person or organization that 
furnishes, bills, or is paid for, health care services or supplies in 
the normal course of business. This definition would include a 
researcher who provides health care to the subjects of research, free 
clinics, and a health clinic or licensed health care professional 
located at a school or business.
    Section 1861(u) of the Act contains the Medicare definition of a 
provider, which encompasses institutional providers, such as hospitals, 
skilled nursing facilities, home health agencies, and comprehensive 
outpatient rehabilitation facilities. Section 1861(s) of the Act 
defines other Medicare facilities and practitioners, including assorted 
clinics and centers, physicians, clinical laboratories, various 
licensed/certified health care practitioners, and suppliers of durable 
medical equipment. The last portion of the proposed definition 
encompasses appropriately licensed or certified health care 
practitioners or organizations, including pharmacies and nursing homes 
and many types of therapists, technicians, and aides. It also would 
include any other individual or organization that furnishes health care 
services or supplies in the normal course of business. An individual or 
organization that bills and/or is paid for health care services or 
supplies in the normal course of business, such as a group practice or 
an ``on-line'' pharmacy accessible on the Internet, is also a health 
care provider for purposes of this statute.
    For a more detailed discussion of the definition of health care 
provider, we refer the reader to our proposed rule (Standard Health 
Care Provider Identifier) published on May 7, 1998, in the Federal 
Register (63 FR 25320).
    6. Health information. We would define ``health information'' as it 
is defined in section 1171(4) of the Act. ``Health information'' would 
mean any information, whether oral or recorded in any form or medium, 
that is created or received by a health care provider, health plan, 
public health authority, employer, life insurer, school or

[[Page 59931]]

university, or health care clearinghouse; and that 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.
    In this paragraph we attempt to clarify the relationship between 
the defined terms ``health information,'' ``individually identifiable 
health information'' and ``protected health information.'' The term 
``health information'' encompasses the universe of information governed 
by the administrative simplification requirements of the Act. For 
example, under section 1173 of the Act, the Secretary is to adopt 
standards to enable the electronic exchange of all health information. 
However, protection of personal privacy is primarily a concern for the 
subset of health information that is ``individually identifiable health 
information,'' as defined by the Act (see below). For example, a 
tabulation of the number of students with asthma by school district 
would be health information, but since it normally could not be used to 
identify any individuals, it would not usually create privacy concerns. 
The definition of individually identifiable health information omits 
some of the persons or organizations that are described as creating or 
receiving ``health information.'' Some sections of the Act refer 
specifically to individually identifiable health information, such as 
section 1177 in setting criminal penalties for wrongful use or 
disclosure, and section 264 in requesting recommendations for privacy 
standards. Finally, we propose the phrase ``protected health 
information'' (Sec. 164.504) to refer to the subset of individually 
identifiable health information that is used or disclosed by the 
entities that are subject to this rule.
    7. Health plan. We would define ``health plan'' essentially as 
section 1171(5) of the Act defines it. Section 1171 of the Act refers 
to several definitions in section 2791 of the Public Health Service 
Act, 42 U.S.C. 300gg-91, as added by Public Law 104-191. For clarity, 
we would incorporate the referenced definitions as currently stated 
into our proposed definitions.
    As defined in section 1171(5), a ``health plan'' is an individual 
plan or group health plan that provides, or pays the cost of, medical 
care (see section 2791(a) of the Public Health Service Act (PHS Act)). 
This definition would include, but is not limited to, the 15 types of 
plans listed in the statute, as well as any combination of them. The 
term would include, when applied to public benefit programs, the 
component of the government agency that administers the program. Church 
plans and government plans are included to the extent that they fall 
into one or more of the listed categories.
    Health plan'' includes the following singly or in combination:
    a. ``Group health plan'' (as currently defined by section 2791(a) 
of the PHS Act). A group health plan is a plan that has 50 or more 
participants (as the term ``participant'' is currently defined by 
section 3(7) of ERISA) or is administered by an entity other than the 
employer that established and maintains the plan. This definition 
includes both insured and self-insured plans.
    Section 2791(a)(1) of the PHS Act defines ``group health plan'' as 
an employee welfare benefit plan (as defined in current section 3(1) of 
ERISA) to the extent that the plan provides medical care, including 
items and services paid for as medical care, to employees or their 
dependents directly or through insurance, or otherwise.
    b. ``Health insurance issuer'' (as currently defined by section 
2791(b) of the PHS Act).
    Section 2971(b) of the PHS Act defines a ``health insurance 
issuer'' as an insurance company, insurance service, or insurance 
organization that is licensed to engage in the business of insurance in 
a State and is subject to State law that regulates insurance.
    c. ``Health maintenance organization'' (as currently defined by 
section 2791(b) of the PHS Act). Section 2791(b) of the PHS Act 
currently defines a ``health maintenance organization'' as a federally 
qualified health maintenance organization, an organization recognized 
as such under State law, or a similar organization regulated for 
solvency under State law in the same manner and to the same extent as 
such a health maintenance organization. These organizations may include 
preferred provider organizations, provider sponsored organizations, 
independent practice associations, competitive medical plans, exclusive 
provider organizations, and foundations for medical care.
    d. Part A or Part B of the Medicare program (title XVIII of the 
Act).
    e. The Medicaid program (title XIX of the Act).
    f. A ``Medicare supplemental policy'' as defined under section 
1882(g)(1) of the Act. Section 1882(g)(1) of the Act defines a 
``Medicare supplemental policy'' as a health insurance policy that a 
private entity offers a Medicare beneficiary to provide payment for 
expenses incurred for services and items that are not reimbursed by 
Medicare because of deductible, coinsurance, or other limitations under 
Medicare. The statutory definition of a Medicare supplemental policy 
excludes a number of plans that are similar to Medicare supplemental 
plans, such as health plans for employees and former employers and for 
members and former members of trade associations and unions. A number 
of these health plans may be included under the definitions of ``group 
health plan'' or ``health insurance issuer,'' as defined in paragraphs 
``a'' and ``b'' above.
    g. A ``long-term care policy,'' including a nursing-home fixed 
indemnity policy. A ``long-term care policy'' is considered to be a 
health plan regardless of how comprehensive it is.
    h. An employee welfare benefit plan or any other arrangement that 
is established or maintained for the purpose of offering or providing 
health benefits to the employees of two or more employers. This 
includes plans that are referred to as multiple employer welfare 
arrangements (``MEWAs'').
    i. The health care program for active military personnel under 
title 10 of the United States Code. See paragraph ``k'', below, for 
further discussion.
    j. The veterans health care program under chapter 17 of title 38 of 
the United States Code. This health plan primarily furnishes medical 
care through hospitals and clinics administered by the Department of 
Veterans Affairs (VA) for veterans enrolled in the VA health care 
system.
    k. The Civilian Health and Medical Program of the Uniformed 
Services (CHAMPUS) as defined in 10 U.S.C. 1072(4). We note that the 
Act's definition of ``health plan'' omits several types of health care 
provided by the Department of Defense (DOD). Sections 1171(5)(I) and 
1171(5)(K) cover only the health care program for active duty personnel 
(see 10 U.S.C. 1074(a)) and the CHAMPUS program (see 10 U.S.C. 1079, 
1086). What is omitted is health care provided in military treatment 
facilities to military retirees (see 10 U.S.C. 1074(b)), to dependents 
of active duty personnel and to dependents of retirees (see 10 U.S.C. 
1076), to Secretarial designees such as members of Congress, Justices 
of the Supreme Court, and to foreign military personnel under NATO 
status of forces agreements. Health care provided by the DOD in 
military facilities to the aforementioned persons is not included as a 
``health plan'' under HIPAA. However, these facilities would still be 
considered to be health care providers.
    l. The Indian Health Service program under the Indian Health Care 
Improvement Act (25 U.S.C. 1601, et.

[[Page 59932]]

seq.). This program furnishes services, generally through its own 
health care providers, primarily to persons who are eligible to receive 
services because they are of American Indian or Alaskan Native descent.
    m. The Federal Employees Health Benefits Program under 5 U.S.C. 
chapter 89. This program consists of health insurance plans offered to 
active and retired federal employees and their dependents. Although 
section 1171(5)(M) of the Act refers to the ``Federal Employees Health 
Benefit Plan,'' this and any other rules adopting administrative 
simplification standards will use the correct name, the Federal 
Employees Health Benefits Program. One health plan does not cover all 
federal employees; over 350 health plans provide health benefits 
coverage to federal employees, retirees, and their eligible family 
members. Therefore, we will use the correct name, The Federal Employees 
Health Benefits Program, to make clear that the administrative 
simplification standards apply to all health plans that participate in 
the Program.
    n. An approved State child health plan for child health assistance 
that meets the requirements of section 2103 of the Act, which 
established the Children's Health Insurance Program (CHIP).
    o. A Medicare Plus Choice organization as defined in 42 CFR 422.2, 
with a contract under 42 CFR part 422, subpart K.
    p. Any other individual plan or group health plan, or combination 
thereof, that provides or pays for the cost of medical care. This 
category implements the language at the beginning of the statutory 
definition of the term ``health plan'': ``The term 'health plan' means 
an individual or group plan that provides, or pays the cost of, medical 
care * * * Such term includes the following, and any combination 
thereof * * *'' This statutory language is general, not specific. 
Moreover, the statement that the term ``health plan'' ``includes'' the 
specified plans implies that the term also covers other plans that meet 
the stated criteria. One approach to interpreting this introductory 
language in the statute would be to make coverage decisions about plans 
that may meet these criteria on a case-by-case basis. Instead we 
propose to clarify its coverage by adding this category to the proposed 
definition of ``health plan''; we seek public comment on its 
application. The Secretary would determine which plans that meet the 
criteria in the preceding paragraph are health plans for purposes of 
title II of HIPAA.
    Consistent with the other parts of HIPAA, the provisions of this 
rule generally would not apply to certain types of insurance entities, 
such as workers' compensation and automobile insurance carriers, other 
property and casualty insurers, and certain forms of limited benefits 
coverage, even when such arrangements provide coverage for health care 
services. 29 U.S.C. 1186(c). We note that health care providers would 
be subject to the provisions of this rule with respect to the health 
care they provide to individuals, even if such providers seek or 
receive reimbursement from an insurance entity that is not a covered 
entity under these rules. However, nothing in this rule would be 
intended to prevent a health care provider from disclosing protected 
health information to a non-covered insurance entity for the purpose of 
obtaining payment for services. Further, under proposed 
Sec. 164.510(n), this rule would permit disclosures by health care 
providers of protected health information to such insurance entities 
and to other persons when mandated by applicable law for the purposes 
of determining eligibility for coverage or benefits under such 
insurance arrangements. For example, a State workers' compensation law 
that requires disclosure of protected health information to an insurer 
or employer for the purposes of determining an individual's eligibility 
for medical or other benefits, or for the purpose of determining 
fitness for duty, would not be disturbed by this rule.
    8. Secretary. This term means the Secretary of Health and Human 
Services and any other officer or employee of the Department of Health 
and Human Services to whom the authority involved has been delegated. 
It is provided for ease of reference.
    9. Small health plan. The HIPAA does not define a ``small health 
plan,'' but instead explicitly leaves the definition to be determined 
by the Secretary. We propose to adopt the size classification used by 
the Small Business Administration. We would therefore define a ``small 
health plan'' as a health plan with annual receipts of $5 million or 
less. 31 CFR 121.201. This differs from the definition of ``small 
health plan'' in prior proposed Administrative Simplification rules. We 
will conform the definitions in the final Administrative Simplification 
rules.
    10. Standard. The term ``standard'' would mean a prescribed set of 
rules, conditions, or requirements concerning classification of 
components, specification of materials, performance or operations, or 
delineation of procedures in describing products, systems, services, or 
practices. This definition is a general one, to accommodate the varying 
functions of the specific standards proposed in the other HIPAA 
regulations, as well as the rules proposed below.
    11. State. This term would include the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and 
Guam. This definition follows the statutory definition of ``State'' in 
section 1101(a) of the Act.
    12. Transaction. We would define ``transaction,'' as we have done 
in other Administrative Simplification regulations, to mean the 
exchange of information between two parties to carry out financial or 
administrative activities related to health care. A transaction would 
be (1) any of the transactions listed in section 1173(a)(2) of the Act, 
and (2) any transaction determined appropriate by the Secretary in 
accordance with Section 1173(a)(1) of the Act.
    A ``transaction'' would mean any of the following:
    a. Health claims or equivalent encounter information. This 
transaction could be used to submit health care claim billing 
information, encounter information, or both, from health care providers 
to payers, either directly or via intermediary billers and claims 
clearinghouses.
    b. Health care payment and remittance advice. This transaction 
could be used by a health plan to make a payment to a financial 
institution for a health care provider (sending payment only), to send 
an explanation of benefits remittance advice directly to a health care 
provider (sending data only), or to make payment and send an 
explanation of benefits remittance advice to a health car provider via 
a financial institution (sending both payment and data).
    c. Coordination of benefits. This transaction could be used to 
transmit health care claims and billing payment information between 
payers with different payment responsibilities where coordination of 
benefits is required or between payers and regulatory agencies to 
monitor the furnishing, billing, and/or payment of health care services 
within a specific health care/insurance industry segment.
    d. Health claims status. This transaction could be used by health 
care providers and recipients of health care products or services (or 
their authorized agents) to request the status of a health care claim 
or encounter from a health plan.
    e. Enrollment and disenrollment in a health plan. This transaction 
could be used to establish communication

[[Page 59933]]

between the sponsor of a health benefit and the payer. It provides 
enrollment data, such as subscriber and dependents, employer 
information, and primary care health care provider information. A 
sponsor would be the backer of the coverage, benefit, or product. A 
sponsor could be an employer, union, government agency, association, or 
insurance company. The health plan would refer to an entity that pays 
claims, administers the insurance product or benefit, or both.
    f. Eligibility for a health plan. This transaction could be used to 
inquire about the eligibility, coverage, or benefits associated with a 
benefit plan, employer, plan sponsor, subscriber, or a dependent under 
the subscriber's policy. It also could be used to communicate 
information about or changes to eligibility, coverage, or benefits from 
information sources (such as insurers, sponsors, and payers) to 
information receivers (such as physicians, hospitals, third party 
administrators, and government agencies).
    g. Health plan premium payments. This transaction could be used by, 
for example, employers, employees, unions, and associations to make and 
keep track of payments of health plan premiums to their health 
insurers. This transaction could also be used by a health care 
provider, acting as liaison for the beneficiary, to make payment to a 
health insurer for coinsurance, copayments, and deductibles.
    h. Referral certification and authorization. This transaction could 
be used to transmit health care service referral information between 
health care providers, health care providers furnishing services, and 
payers. It could also be used to obtain authorization for certain 
health care services from a health plan.
    i. First report of injury. This transaction could be used to report 
information pertaining to an injury, illness, or incident to entities 
interested in the information for statistical, legal, claims, and risk 
management processing requirements.
    j. Health claims attachments. This transaction could be used to 
transmit health care service information, such as subscriber, patient, 
demographic, diagnosis, or treatment data for the purpose of a request 
for review, certification, notification, or reporting the outcome of a 
health care services review.
    k. Other transactions as the Secretary may prescribe by regulation. 
Under section 1173(a)(1)(B) of the Act, the Secretary may adopt 
standards, and data elements for those standards, for other financial 
and administrative transactions deemed appropriate by the Secretary. 
These transactions would be consistent with the goals of improving the 
operation of the health care system and reducing administrative costs.
    In addition to the above terms, a number of terms are defined in 
proposed Sec. 164.504, and are specific to the proposed privacy rules. 
They are as follows:
    13. Business partner. This term would mean a person to whom a 
covered entity discloses protected health information so that the 
person can carry out, assist with the performance of, or perform on 
behalf of, a function or activity for the covered entity. Such term 
includes any agent, contractor or other person who receives protected 
health information from the covered entity (or from another business 
partner of the covered entity) for the purposes described in the 
previous sentence. It would not include a person who is an employee, a 
volunteer or other person associated with the covered entity on a paid 
or unpaid basis.
    14. Designated record set. This term would be defined as a group of 
records under the control of a covered entity from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual, and 
which is used by the covered entity to make decisions about the 
individual. The concept of a ``designated record set'' is derived from 
the Privacy Act's concept of a ``system of records.'' Under the Privacy 
Act, federal agencies must provide an individual with access to 
``information pertaining to him which is contained in [a system of 
records].'' 5 U.S.C. 552a(d)(1). A ``system of records'' is defined as 
``a group of any records under the control of any agency from which 
information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifying particular assigned to 
the individual.'' 5 U.S.C. 552a(a)(5). Under this rule, we would 
substitute the term ``covered entity'' for ``agency'' and limit the 
information to that used by the covered entity to make decisions about 
the individual.
    We would define a ``record'' as ``any item, collection, or grouping 
of protected health information maintained, collected, used, or 
disseminated by a covered entity.'' Under the Privacy Act, ``the term 
'record' means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, his education, financial transactions, medical history, and 
criminal or employment history and that contains his name, or the 
identifying number, symbol, or other identifying particular assigned to 
the individual, such as a finger or voice print or a photograph.'' 5 
U.S.C. 552a(a)(4). For purposes of this rule we propose to limit the 
information to protected health information, as defined in this rule. 
``Protected health information'' already incorporates the concept of 
identifiability, and therefore our definition of ``record'' is much 
simpler.
    For health plans, designated record sets would include, at a 
minimum, the claims adjudication, enrollment, and patient accounting 
systems. For health care providers, designated record sets would 
include, at a minimum, the medical records and billing records. 
Designated record set would also include a correspondence system, a 
complaint system, or an event tracking system if decisions about 
individuals are made based, in whole or in part, on information in 
those systems. Files used to backup a primary data system or the 
sequential files created to transmit a batch of claims to a 
clearinghouse are clear examples of data files which would not fall 
under this definition.
    We note that a designated record set would only exist for types of 
records that a covered entity actually ``retrieves'' by an identifier, 
and not records that are only ``retrievable'' by an identifier. In many 
cases, technology will permit sorting and retrieving by a variety of 
fields and therefore the ``retrievable'' standard would be relatively 
meaningless.
    15. Disclosure. This term would be defined as the release, 
transfer, provision of access to, or divulging in any other manner of 
information outside the entity holding the information.
    16. Health care operations. We propose the term ``health care 
operations'' to clarify the activities we consider to be ``compatible 
with and directly related to'' treatment and payment and therefore 
would not require authorization from the individual for use or 
disclosure of protected health information.
    Under our proposal, ``health care operations'' means the following 
services or activities if provided by or on behalf of a covered health 
plan or health care provider for the purposes of carrying out the 
management functions of such plan or provider necessary for the support 
of treatment or payment:
     Conducting quality assessment and improvement activities, 
including evaluating outcomes, and developing clinical guidelines;

[[Page 59934]]

     Reviewing the competence or qualifications of health care 
professionals, evaluating practitioner and provider performance, health 
plan performance, conducting training programs in which undergraduate 
and graduate students and trainees in all areas of health care learn 
under supervision to practice as health care providers (e.g., residency 
programs, grand rounds, nursing practicums), accreditation, 
certification, licensing or credentialing activities;
     Insurance rating and other insurance activities relating 
to the renewal of a contract for insurance, including underwriting, 
experience rating, and reinsurance, but only when the individuals are 
already enrolled in the health plan conducting such activities and only 
when the use or disclosure of such protected health information relates 
to an existing contract of insurance (including the renewal of such a 
contract);
     Conducting or arranging for auditing services, including 
fraud and abuse detection and compliance programs; and
     Compiling and analyzing information in anticipation of, or 
for use in, civil or criminal legal proceedings.
    Our definition proposes to limit health care operations to 
functions and activities performed by a health plan or provider or by a 
business partner on behalf of a health plan or a provider. Our 
definition anticipates that in order for treatment and payment to 
occur, protected health information would be used within entities, 
would be shared with business partners, and in some cases would be 
shared between covered entities (or their business partners). However, 
a health care operation should not result in protected health 
information being disclosed to an entity that is not the covered entity 
(or a business partner of such entity) on whose behalf the operation is 
being performed. For example, a health plan may request a health care 
provider to provide protected health information to the health plan, or 
to a business partner of the health plan, as part of an outcomes 
evaluation effort relating to providers affiliated with that plan. This 
would be a health care operation.
    We are aware that the health care industry is changing and that 
these categories, though broad, may need to be modified to reflect 
different conditions in the future.
    17. Health oversight agency. We would define the term ``health 
oversight agency'' as it is defined in the Secretary's Recommendations. 
See section II.E. below for further discussion.
    18. Individual. We would define ``individual'' to mean the person 
who is the subject of protected health information. We would define the 
term to include, with respect to the signing of authorizations and 
other rights (such as access, copying, and correction), various types 
of legal representatives. The term would include court-appointed 
guardians or persons with a power of attorney, including persons making 
health care decisions for incapacitated persons, persons acting on 
behalf of a decedent's estate, where State or other applicable law 
authorizes such legal representatives to exercise the person's rights 
in such contexts, and parents subject to certain restrictions explained 
below. We would define this term to exclude foreign military and 
foreign diplomatic personnel and their dependents who receive health 
care provided or paid for by the DOD or other federal agency or entity 
acting on its behalf, and overseas foreign national beneficiaries of 
health care provided by the DOD or other federal agency, or non-
governmental organization acting on its behalf.
    a. Disclosures pursuant to a power of attorney. The definition of 
an individual would include legal representatives, to the extent 
permitted under State or other applicable law. We considered several 
issues in making this determination.
    A ``power of attorney'' is a legal agreement through which a person 
formally grants authority to another person to make decisions on the 
person's behalf about financial, health care, legal, and/or other 
matters. In granting power of attorney, a person does not give up his 
or her own right to make decisions regarding the health care, 
financial, legal, or other issues involved in the legal agreement. 
Rather, he or she authorizes the other person to make these decisions 
as well.
    In some cases, an individual gives another person power of attorney 
over issues not directly related to health care (e.g., financial 
matters) while informally relying on a third person (either implicitly 
or through verbal agreement) to make health care decisions on his or 
her behalf. In such situations, the person with power of attorney could 
seek health information from a health plan or provider in order to 
complete a task related to his or her power of attorney. For example, a 
person with financial power of attorney may request health information 
from a health plan or provider in order to apply for disability 
benefits on the individual's behalf.
    In developing proposed rules to address these situations, we 
considered two options: (1) Allowing health plans and health care 
providers to disclose health information without authorization directly 
to the person with power of attorney over issues not directly related 
to health care; and (2) prohibiting health plans or health care 
providers from disclosing health information without authorization 
directly to such persons and stating that disclosure without 
authorization is permitted only to persons designated formally (through 
power of attorney for health care) or informally as the patient's 
health care decision-maker. We believe that both options have merit.
    The first option recognizes that the responsibilities of persons 
with power of attorney often are broad, and that even when the power of 
attorney agreement does not relate directly to health care, the person 
with power of attorney at times has a legitimate need for health 
information in order to carry out his or her legal responsibility. The 
second option recognizes that when an individual is competent to make 
health care decisions, it is appropriate for him or her (or, if the 
individual wishes, for the informally designated health care decision 
maker) to decide whether the covered entity should disclose health 
information to someone with power of attorney over issues not directly 
related to health care.
    In light of the fact that laws vary by State regarding power of 
attorney and that implementation of either option could be in the 
individual's interest, we would allow health plans and health care 
providers to disclose protected health information without 
authorization directly to persons with power of attorney to handle any 
issue on the individual's behalf, in accordance with State or other 
applicable laws regarding this issue.
    This definition also accounts for situations in which a competent 
individual has granted one person power of attorney over health care 
issues yet, in practice, relies on another person to make health care 
decisions. We recognize that, by giving power of attorney for health 
care issues to one person and involving another person informally in 
making treatment decisions, the individual is, in the first instance, 
formally granting consent to release his or her health information and, 
in practice, granting consent to release medical information to the 
second person. Therefore, we would allow a health plan or provider, 
pursuant to State or other applicable law, to disclose protected health 
information without authorization to a person with power of attorney 
for the patient's health care and to a person

[[Page 59935]]

informally designated as the patient's health care decision maker.
    b. Disclosures pertaining to incapacitated individuals. Covered 
entities would be permitted to disclose protected health information to 
any person making health care decisions for an incapacitated person 
under State or other applicable law. This definition defers to current 
laws regarding health care decision-making when a patient is not a 
minor and is incapable of making his or her own decisions. We propose 
to permit information to follow such decision-making authority. It is 
our intent not to disturb existing practices regarding incapacitated 
patients.
    Applicable laws vary significantly regarding the categories of 
persons who can make health care decisions when a patient is incapable 
of making them. For example, some State laws establish a hierarchy of 
persons who may make medical decisions for the incapacitated person 
(e.g., first a person with power of attorney, if not then next-of-kin, 
if none then close friend, etc.). In other States, health care 
providers may exercise professional judgment about which person would 
make health care decisions in the patient's best interest. We also 
recognize that federal agencies have, in some cases, established rules 
regarding such patients. For example, the DOD has established 
requirements regarding military personnel who are based overseas and 
who have become incapable of making their own decisions.
    Because laws vary regarding patients unable to make their own 
decisions and because these patients' interests could be served through 
a variety of arrangements, we would allow health plans and health care 
providers to disclose information in accordance with applicable laws 
regarding incapacitated patients.
    c. Disclosures pertaining to minors. In general, because the 
definition of individual would include parents, a parent, guardian, or 
person acting in loco parentis could exercise the rights established 
under this regulation on behalf of their minor (as established by 
applicable law) children. However, in cases where a minor lawfully 
obtains a health care service without the consent of or notification to 
a parent, the minor would be treated as the individual for purposes of 
exercising any rights established under this regulation with respect to 
protected health information relating to such health services. Laws 
regarding access to health care for minors and confidentiality of their 
medical records vary widely; this proposed regulation recognizes and 
respects the current diversity of the law in this area. It would not 
affect applicable regulation of the delivery of health care services to 
minors, and would not preempt any law authorizing or prohibiting 
disclosure of individually identifiable health information of minor 
individuals to their parents. The disclosure of individually 
identifiable health information from substance abuse records is also 
addressed by additional requirements established under 42 CFR part 2.
    d. Foreign recipients of defense related health care. We would 
define the term ``individual'' to exclude foreign military and foreign 
diplomatic personnel and their dependents who receive health care 
provided by or paid for by the DOD or other federal agency, or by an 
entity acting on its behalf, pursuant to a country-to-country agreement 
or federal statute. We would also exclude from this term overseas 
foreign national beneficiaries of health care provided by the DOD or 
other federal agency or by a non-governmental organization acting on 
behalf of DOD or such agency. This exclusion is discussed in section 
II.E.l3.
    e. Disclosures pertaining to deceased persons. This provision is 
discussed in Section II.C.6.
    19. Individually identifiable health information. We would define 
``individually identifiable health information'' as it is defined in 
section 1171(6) of the Act. While the definition of individually 
identifiable health information does not expand on the statutory 
definition, we recognize that the issue of how the identifying 
characteristics can be removed from such information (referred to in 
this rule as de-identification) presents difficult operational issues. 
Accordingly, we propose in Sec. 164.506(d) an approach for de-
identifying identifiable information, along with restrictions designed 
to ensure that de-identified information is not used inappropriately.
    The privacy standards would apply to ``individually identifiable 
health information,'' and not to information that does not identify the 
individual. We are aware that, even after removing obvious identifiers, 
there is always some probability or risk, however remote, that any 
information about an individual can be attributed. A 1997 MIT study 
showed that, because of the public availability of the Cambridge, 
Massachusetts voting list, 97 percent of the individuals in Cambridge 
whose data appeared in a data base which contained only their nine 
digit zip code and birth date could be identified with certainty. 
1 Their information had been ``de-identified'' (some obvious 
identifiers had been removed) but it was not anonymous (it was still 
possible to identify the individual).
---------------------------------------------------------------------------

    \1\ Sweeney, L. Guaranteeing Anonymity when Sharing Medical 
Data, the Datafly System. Masys, D., Ed. Proceedings, American 
Medical Informatics Association, Nashville, TN: Hanley & Belfus, 
Inc., 1997:51-55.
---------------------------------------------------------------------------

    It is not always obvious when information identifies the subject. 
If the name and identifying numbers (e.g., SSN, insurance number, etc.) 
are removed, a person could still be identified by the address. With 
the address removed, the subject of a medical record could be 
identified based on health and demographic characteristics (e.g., age, 
race, diagnosis). ``Identifiability'' varies with the location of the 
subject; there could be hundreds of people in Manhattan who have the 
same age, race, gender, and diagnosis, but only one such person in a 
small town or rural county. Gauging the risk of identification of 
information requires statistical experience and expertise that most 
covered entities will not possess.
    Obvious identifiers on health information could be replaced with 
random numbers or encrypted codes, which can prevent the person using 
the record from identifying the subject, but which allow the person 
holding the code to re-identify the information. Information with coded 
or encrypted identifiers would be considered ``de-identified'' but not 
``anonymous,'' because it is still possible for someone to identify the 
subject.
    We considered defining ``individually identifiable health 
information'' as any information that is not anonymous, that is, for 
which there is any possibility of identifying the subject. We rejected 
this option, for several reasons. First, the statute suggests a 
different approach. The term ``individually identifiable health 
information'' is defined in HIPAA as health information that ``* * * 
identifies the individual, or with respect to which there is a 
reasonable basis to believe that the information can be used to 
identify the individual.'' By including the modifier ``reasonable 
basis,'' Congress appears to reject the absolute approach to defining 
``identifiable.''
    Second, covered entities may not have the statistical 
sophistication to know with certainty when sufficient identifying 
information has been removed so that the record is no longer 
identifiable. We believe that covered entities need more concrete 
guidance as to when information will and will not be ``identifiable'' 
for purposes of this regulation.

[[Page 59936]]

    Finally, defining non-identifiable to mean anonymous would require 
covered entities to comply with the terms of this regulation with 
respect to information for which the probability of identification of 
the subject is very low. We want to encourage covered entities and 
others to remove obvious identifiers or encrypt them whenever possible; 
use of the absolute definition of ``identifiable'' would not promote 
this salutary result.
    For these reasons, we propose at Sec. 164.506(d)(2)(ii) that there 
be a presumption that, if specified identifying information is removed 
and if the holder has no reason to believe that the remaining 
information can be used by the reasonably anticipated recipients alone 
or in combination with other information to identify an individual, 
then the covered entity is presumed to have created de-identified 
information.
    At the same time, in proposed Sec. 164.506(d)(2)(iii), we would 
leave leeway for more sophisticated data users to take a different 
approach. We would include a ``reasonableness'' standard so that 
entities with sufficient statistical experience and expertise could 
remove or code a different combination of information, so long as the 
result is still a low probability of identification. With this 
approach, our intent is to provide certainty for most covered entities, 
while not limiting the options of more sophisticated data users.
    In Sec. 164.504, we propose to define ``individually identifiable 
health information'' to mean health information created or received by 
a health care provider, health plan, employer or health care 
clearinghouse, that could be used directly or indirectly to identify 
the individual who is the subject of the information. Under proposed 
Sec. 164.506(d)(2)(ii), information would be presumed not to be 
``identifiable'' if:
     All of the following data elements have been removed or 
otherwise concealed: Name; address, including street address, city, 
county, zip code, or equivalent geocodes; names of relatives and 
employers; birth date; telephone and fax numbers; e-mail addresses; 
social security number; medical record number; health plan beneficiary 
number; account number; certificate/license number; any vehicle or 
other device serial number; web URL; Internet Protocol (IP) address; 
finger or voice prints; photographic images; and any other unique 
identifying number, characteristic, or code (whether generally 
available in the public realm or not) that the covered entity has 
reason to believe may be available to an anticipated recipient of the 
information, and
     The covered entity has no reason to believe that any 
reasonably anticipated recipient of such information could use the 
information alone, or in combination with other information, to 
identify an individual. Thus, to create de-identified information, 
entities that had removed the listed identifiers would still have to 
remove additional data elements if they had reason to believe that a 
recipient could use the remaining information, alone or in combination 
with other information, to identify an individual. For example, if the 
``occupation'' field is left intact and the entity knows that a 
person's occupation is sufficiently unique to allow identification, 
that field would have to be removed from the relevant record. The 
presumption does not allow use or disclosure if the covered entity has 
reason to believe the subject of the information can be re-identified. 
Our concern with the potential for re-identification is heightened by 
our limited jurisdiction under HIPAA. Because we can only regulate 
health care providers, health plans and health care clearinghouses, we 
cannot prohibit other recipients of de-identified information from 
attempting to re-identify it.
    To assist covered entities in ascertaining whether their attempts 
to create de-identified information would be successful, the Secretary 
would from time to time issue guidance establishing methods that 
covered entities could use to determine the identifiability of 
information. This guidance would include information on statistical and 
other tests that could be performed by covered entities in assessing 
whether they have created de-identified information. The manner in 
which such guidance would be published and distributed will be 
addressed in the final regulation. We solicit comment on the best ways 
in which to inform covered entities of appropriate and useful 
information on methods that they can use to determine whether 
information is de-identified.
    In enforcing this regulation, the Secretary would consider the 
sophistication of covered entities when determining whether a covered 
entity had reason to believe that information that it had attempted to 
de-identify continued to identify the subject. Covered entities that 
routinely create and distribute de-identified data would be expected to 
be aware of and to use advanced statistical techniques, including the 
guidance issued by the Secretary, to ensure that they are not 
improperly disclosing individually identifiable health information. 
Covered entities that rarely create de-identified information would not 
be expected to have the same level of knowledge of these statistical 
methods, and generally could rely on the presumption that information 
from which they have removed the listed identifiers (and provided that 
they do not know that the information remains identifiable) is de-
identified. We solicit comment on whether the enforcement approach that 
we are suggesting here and our overall approach relating to the 
creation of de-identified information would provide sufficient guidance 
to covered entities to permit them to create, use and disclose de-
identified information.
    In addition, we propose to permit entities with appropriate 
statistical experience and expertise (obtained through a statistical 
consultant or staff with statistical expertise) to decide that some of 
the above named data elements could be retained in the de-identified 
data set if: (1) The entity determines that the probability of 
identifying an individual with the remaining information is very low, 
or (2) the entity has converted the ``identifiable'' data elements into 
data elements that, in combination with the remaining information, have 
a very low probability of being used to identify an individual. An 
example of such a conversion would be the translation of birth date 
into age expressed in years or, if still determined to convey 
``identifiability,'' age expressed in categories of years (e.g., age 18 
to 24). In making these determinations, the entity must consider the 
data elements taken together as well as any additional information that 
might reasonably be available to a recipient. Examples of the types of 
entities that would have the statistical experience and expertise to 
make this type of judgment include large health research institutions 
such as medical schools with epidemiologists and statisticians on the 
faculty; federal agencies such as the National Center for Health 
Statistics, the Agency for Health Care Policy and Research, FDA, the 
Bureau of the Census, and NIH; and large corporations that do health 
research such as pharmaceutical manufacturers with epidemiologists and 
statisticians on staff.
    An important component of this approach to defining 
``identifiable'' would be the prohibition on re-identification of 
health information. We propose that a covered entity that is a 
recipient of de-identified information who attempts to re-identify such 
de-identified information for a purpose for which protected health 
information could not be used or disclosed under

[[Page 59937]]

this rule be deemed to be in violation of the law. See proposed 
Sec. 164.506(d) and section II.C. below. There may be circumstances, 
however, when recipients of de-identified information will have a 
legitimate reason to request that the de-identified information be re-
identified by the originating covered entity. For example, if a 
researcher received de-identified information from a covered entity and 
the research revealed that a particular patient was misdiagnosed, the 
covered entity should be permitted to re-identify the patient's health 
information so that the patient could be informed of the error and seek 
appropriate care. One of the principal reasons entities retain 
information in coded form, rather than rendering it anonymous, is to 
enable re-identification of the information for appropriate reasons. 
Although we would anticipate that the need for re-identification would 
be rare, entities that expect to have to perform this function should 
establish a process for determining when re-identification is 
appropriate. Once covered entities re-identify information, it becomes 
protected information and may, therefore, be used and disclosed only as 
permitted by this regulation.
    The phrase ``individually identifiable'' information is already in 
use by many HHS agencies and others. In particular, the Common Rule 
regulation includes ``identifiable private information'' in its 
definition of ``human subject.'' Because of this, medical records 
research on ``identifiable private information'' is subject to Common 
Rule consent and IRB review requirements. It would not be our intent to 
suggest changes to this practice. Researchers and others can and are 
encouraged to continue to use more stringent approaches to protecting 
information.
    We invite comment on the approach that we are proposing and on 
alternative approaches to standards for covered entities to determine 
when health information can reasonably be considered no longer 
individually identifiable.
    20. Law enforcement official. We propose a new definition of ``law 
enforcement official,'' to mean an officer of the United States or a 
political subdivision thereof, who is empowered by law to conduct an 
investigation or official proceeding inquiring into a violation of, or 
failure to comply with, any law; or a criminal, civil, or 
administrative proceeding arising from a violation of, or failure to 
comply with, any law.
    21. Payment. We offer a new definition of payment. The term 
``payment'' would mean activities undertaken by a health plan (or by a 
business partner on behalf of a health plan) to determine its 
responsibilities for coverage under the health plan policy or contract 
including the actual payment under the policy or contract, or by a 
health care provider (or by a business partner on behalf of a provider) 
to obtain reimbursement for the provision of health care, including:
     Determinations of coverage, improving payment 
methodologies or coverage policies, or adjudication or subrogation of 
claims;
     Risk adjusting payments based on enrollee health status 
and demographic characteristics;
     Billing, claims management, medical review, medical data 
processing;
     Review of health care services with respect to medical 
necessity, coverage under a health plan policy or contract, 
appropriateness of care, or justification of charges; and,
     Utilization review activities, including pre-certification 
and preauthorization of services.
    Our proposed definition is intended to capture the necessary 
sharing of protected health information among health care providers who 
provide care, health plans and other insurers who pay for care, their 
business partners, as well as sponsors of group health plans, such as 
employers, who pay for care and sometimes provide administrative 
services in conjunction with health plan payment activities. For 
example, employers sometimes maintain the eligibility file with respect 
to a group health plan.
    Our proposed definition anticipates that protected health 
information would be used for payment purposes within entities, would 
be shared with business partners, and in most cases would be shared 
between health care providers and health plans (and their business 
partners). In some cases, a payment activity could result in the 
disclosure of protected health information by a plan to an employer or 
to another payer of health care, or to an insurer that is not a covered 
entity, such as for coordination of benefits or to a workers 
compensation carrier. For example, a health plan could disclose 
protected health information to an employer in connection with 
determining the experience rate for group coverage.
    We are concerned that disclosures for payments may routinely result 
in disclosures of protected health information to non-covered entities, 
such as employers, which are not subject to the use and disclosure 
requirements of this rule. We considered prohibiting disclosures to 
employers without individual authorization, or alternatively, requiring 
a contractual relationship, similar to the contracts required for 
business partners, before such disclosures could occur. We note that 
the National Committee on Quality Assurance has adopted a standard for 
the year 2000 that would require health plans to ``have policies that 
prohibit sending identifiable personal health information to fully 
insured or self-insured employers and provide safeguards against the 
use of information in any action relating to an individual'' (Standard 
R.R.6, National Committee for Quality Assurance 2000 Standards).
    We did not adopt either of these approaches, however, because we 
were concerned that we might disrupt some beneficial activities if we 
were to prohibit or place significant conditions on disclosures by 
health plans to employers. We also recognize that employers are paying 
for health care in many cases, and it has been suggested to us that 
they may need access to claims and other information for the purposes 
of negotiating rates, quality improvement and auditing their plans and 
claims administrators. We invite comment on the extent to which 
employers currently receive protected health information about their 
employees, for what types of activities protected health information is 
received, and whether any or all of these activities could be 
accomplished with de-identified health information. We also invite 
other comments on how disclosures to employers should be treated under 
this rule.
    22. Protected health information. We would create a new definition 
of ``protected health information'' to mean individually identifiable 
health information that is or has been electronically maintained or 
electronically transmitted by a covered entity, as well as such 
information when it takes any other form. For example, protected health 
information would remain protected after it is read from a computer 
screen and discussed orally, printed onto paper or other media, 
photographed, or otherwise duplicated. We note that individually 
identifiable health information created or received by an employer as 
such would not be considered protected health information, although 
such information created or received by an employer in its role as a 
health plan or provider would be protected health information.
    Under this definition, information that is ``electronically 
transmitted'' would include information exchanged with a computer using 
electronic media, even when the information is physically

[[Page 59938]]

moved from one location to another using magnetic or optical media 
(e.g., copying information from one computer to another using a floppy 
disc). Transmissions over the Internet (i.e., open network), Extranet 
(i.e., using Internet technology to link a business with information 
only accessible to collaborating parties), leased lines, dial-up lines, 
and private networks would all be included. Telephone voice response 
and ``faxback'' (i.e., a request for information from a computer made 
via voice or telephone keypad input with the requested information 
returned as a fax) systems would be included because these are computer 
output devices similar in function to a printer or video screen. This 
definition would not include ``paper-to-paper'' faxes, or person-to-
person telephone calls, video teleconferencing, or messages left on 
voice-mail. The key concept that determines if a transmission meets the 
definition is whether the source or target of the transmission is a 
computer. The medium or the machine through which the information is 
transmitted or rendered is irrelevant.
    Also, information that is ``electronically maintained'' would be 
information stored by a computer or on any electronic medium from which 
the information may be retrieved by a computer. These media include, 
but are not limited to, electronic memory chips, magnetic tape, 
magnetic disk, or compact disc (CD) optical media.
    Individually identifiable health information that is part of an 
``education record'' governed by the Family Educational Rights and 
Privacy Act (FERPA), 20 U.S.C. 1232g, would not be considered protected 
health information. Congress specifically addressed such information 
when it enacted FERPA to protect the privacy rights of students and 
parents in educational settings. FERPA applies to educational records 
that are maintained by educational agencies and institutions that are 
recipients of federal funds from the Department of Education. FERPA 
requires written consent of the parent or student prior to disclosure 
of education records except in statutorily specified circumstances. We 
do not believe that Congress intended to amend or preempt FERPA in 
enacting HIPAA.
    Individually identifiable health information of inmates of 
correctional facilities and detainees in detention facilities would be 
excluded from this definition because unimpeded sharing of inmate 
identifiable health information is crucial for correctional and 
detention facility operations. In a correctional or detention setting, 
prison officials are required by law to safely house and provide health 
care to inmates. These activities require the use and disclosure of 
identifiable health information. Therefore, correctional and detention 
facilities must routinely share inmate health information among their 
health care and other components, as well as with community health care 
facilities. In order to maintain good order and protect the well-being 
of prisoners, the relationship between such facilities and inmates or 
detainees involves a highly regulated, specialized area of the law 
which has evolved as a carefully balanced compromise with due deference 
to institutional needs and obligations.
    Federal and other prison facilities routinely share health 
information with community health care facilities in order to provide 
medical treatment to persons in their custody. It is not uncommon for 
inmates and detainees to be transported from one facility to another, 
for example, for the purpose of making a court appearance in another 
jurisdiction, or to obtain specialized medical care. In these and other 
circumstances, law enforcement agencies such as the Federal Bureau of 
Prisons (the Bureau), the United States Marshals Service (USMS), the 
Immigration and Naturalization Service, State prisons, county jails, 
and U.S. Probation Offices, share identifiable health information about 
inmates and detainees to ensure that appropriate health care and 
supervision of the inmate or detainee is maintained. Likewise, these 
agencies must, in turn, share health information with the facility that 
resumes custody of the inmate or detainee.
    Requiring an inmate's or detainee's authorization for disclosure of 
identifiable health information for day-to-day operations would 
represent a significant shift in correctional and detention management 
philosophy. If correctional and detention facilities were covered by 
this rule, the proposed provisions for individual authorizations could 
potentially be used by an inmate or detainee to override the safety and 
security concerns of the correctional/custodial authority; for example, 
an inmate being sent out on a federal writ could refuse to permit the 
Bureau to disclose a suicide history to the USMS. Additionally, by 
seeking an authorization to disclose the information, staff may give 
the inmate or detainee advance notice of an impending transfer, which 
in turn may create security risks.
    Therefore we propose to exclude the individually identifiable 
health information of inmates of correctional facilities and detainees 
in detention facilities from the definition of protected health 
information. We note that existing federal laws limiting the disclosure 
and release of information (e.g., FOIA/Privacy Act) protect the privacy 
of identifiable federal inmate health information. Subject to certain 
limitations, these laws permit inmates and detainees to obtain and 
review a copy of their medical records and to correct inaccurate 
information.
    Under this approach, the identifiable health information held by 
correctional and detention facilities of persons who have been released 
would not be protected. The facilities require continued access to such 
information for security, protection and health care purposes because 
inmates and detainees are frequently readmitted to correctional and 
detention facilities. However, concern has been expressed about the 
possibility that absent coverage by this proposed rule, correctional 
and detention facilities may disclose information about former inmates 
and detainees without restriction. We therefore request comments on 
whether identifiable health information held by correctional and 
detention facilities about former inmates and detainees should be 
subject to this rule, and the potential security concerns and burden 
such a requirement might place on these facilities.
    23. Psychotherapy notes. We would define ``psychotherapy notes'' to 
mean detailed notes recorded (in any medium) by a health care provider 
who is a mental health professional documenting or analyzing the 
contents of conversation during a private counseling session or a 
group, joint, or family counseling session. Such notes are used only by 
the therapist who wrote them, maintained separately from the medical 
record, and not involved in the documentation necessary for health care 
treatment, payment, or operations. Such term would not include 
medication prescription and monitoring, counseling session start and 
stop times or the modalities and frequencies of treatment furnished, 
results of clinical tests, or a brief summary of the following items: 
diagnosis, functional status, the treatment plan, symptoms, prognosis 
and progress to date.
    24. Public health authority. We would define ``public health 
authority'' as an agency or authority of the United States, a State, a 
territory, a political subdivision of a State or territory, or an 
Indian tribe that is responsible for public health matters as part of 
its official mandate.
    25. Research. We would define ``research'' as a systematic 
investigation,

[[Page 59939]]

including research development, testing and evaluation, designed to 
develop or contribute to generalizable knowledge. We further explain 
that ``generalizable knowledge'' is knowledge related to health that 
can be applied to populations outside of the population served by the 
covered entity.
    This is the definition of ``research'' in the federal regulation 
that protects human subjects, entitled The Federal Policy for the 
Protection of Human Subjects (often referred to as the ``Common Rule,'' 
at 45 CFR part 46). This definition is well understood in the research 
community and elsewhere, and we propose to use it here to maintain 
consistency with other federal regulations that affect research.
    26. Research information unrelated to treatment. We would define 
``research information unrelated to treatment'' as information that is 
received or created by a covered entity in the course of conducting 
research for which there is insufficient scientific and medical 
evidence regarding the validity or utility of the information such that 
it should not be used for the purpose of providing health care,\2\ and 
with respect to which the covered entity has not requested payment from 
a health plan.
---------------------------------------------------------------------------

    \2\ For example, validity is an indicator of how well a test 
measures the property or characteristic it is intended to measure 
and the reliability of a test, i.e., whether the same result is 
obtained each time the test is used. Validity is also a measurement 
of the accuracy with which a test predicts a clinical condition. 
Utility refers to the degree to which the results of test can be 
used to make decisions about the subsequent delivery of health care.
---------------------------------------------------------------------------

    27. Treatment. We would define ``treatment'' to mean the provision 
of health care by, or the coordination of health care (including health 
care management of the individual through risk assessment, case 
management, and disease management) among, health care providers, or 
the referral of an individual from one provider to another, or 
coordination of health care or other services among health care 
providers and third parties authorized by the health plan or the 
individual. Our definition is intended to relate only to services 
provided to an individual and not to an entire enrolled population.
    28. Use. We would propose a new definition of the term ``use'' to 
mean the employment, application, utilization, examination or analysis 
of health information within an entity that holds the information.
    29. Workforce. We would define ``workforce'' to mean employees, 
volunteers, trainees and other persons under the direct control of a 
covered entity, including persons providing labor on an unpaid basis.

C. General Rules. (Sec. 164.506)

    [Please label comments about this section with the subject: 
``Introduction to general rules'']
    The purpose of our proposal is to define and limit the 
circumstances in which an individual's protected health information 
could be used or disclosed by covered entities. As discussed above, we 
are proposing to make the use and exchange of protected health 
information relatively easy for health care purposes and more difficult 
for purposes other than health care.
    As a general rule, we are proposing that protected health 
information not be used or disclosed by covered entities except as 
authorized by the individual who is the subject of such information or 
as explicitly provided by this rule. Under this proposal, most uses and 
disclosures of an individual's protected health information would not 
require explicit authorization by the individual, but would be 
restricted by the provisions of the rule. Covered entities would be 
able to use or disclose an individual's protected health information 
without authorization for treatment, payment and health care 
operations. See proposed Sec. 164.506(a)(1)(i). Covered entities also 
would be permitted to use or disclose an individual's protected health 
information for specified public and public policy-related purposes, 
including public health, research, health oversight, law enforcement, 
and use by coroners. Covered entities would be permitted by this rule 
to use and disclose protected health information when required to do so 
by other law, such as a mandatory reporting requirement under State law 
or pursuant to a search warrant. See proposed Sec. 164.510. Covered 
entities would be required by this rule to disclose protected health 
information for only two purposes: To permit individuals to inspect and 
copy protected health information about them (see proposed 
Sec. 164.514) and for enforcement of this rule (see proposed 
Sec. 164.522(e)).
    The proposed rule generally would not require covered entities to 
vary the level of protection of protected health information based on 
the sensitivity of such information. We believe that all protected 
health information should have effective protection from inappropriate 
use and disclosure by covered entities, and except for limited classes 
of information that are not needed for treatment and payment purposes, 
we have not provided additional protection to protected health 
information that might be considered particularly sensitive. We would 
note that the proposed rule would not preempt provisions of other 
applicable laws that provide additional privacy protection to certain 
classes of protected health information. We understand, however, that 
there are medical conditions and treatments that individuals may 
believe are particularly sensitive, or which could be the basis of 
stigma or discrimination. We invite comment on whether this rule should 
provide for additional protection for such information. We would 
appreciate comment that discusses how such information should be 
identified and the types of steps that covered entities could take to 
provide such additional protection. We also invite comment on how such 
provisions could be enforced.
    Covered entities of all types and sizes would be required to comply 
with the proposed privacy standards outlined below. The proposed 
standards would not impose particular mechanisms or procedures that 
covered entities must adopt to implement the standards. Instead, we 
would require that each affected entity assess its own needs and 
devise, implement, and maintain appropriate privacy policies, 
procedures, and documentation to address its business requirements. How 
each privacy standard would be satisfied would be business decisions 
that each entity would have to make. This allows the privacy standards 
to establish a stable baseline, yet remain flexible enough to take 
advantage of developments and methods for protecting privacy that will 
evolve over time.
    Because the privacy standards would need to be implemented by all 
covered entities, from the smallest provider to the largest, multi-
state health plan, a single approach to implementing these standards 
would be neither economically feasible nor effective in safeguarding 
health information privacy. For example, in a small physician practice, 
the office manager might be designated to serve as the privacy official 
as one of many duties (see proposed Sec. 164.518(a)) whereas at a large 
health plan, the privacy official may constitute a full time position 
and have the regular support and advice of a privacy staff or board.
    Similarly, a large enterprise may make frequent electronic 
disclosures of similar data. In such a case, the enterprise would be 
expected to remove identifiers or to limit the data fields that are 
disclosed to fit the purpose of the disclosure. The process would be 
documented and perhaps even automated. A solo physician's office, 
however, would not be expected to have

[[Page 59940]]

the same capabilities to limit the amount of information disclosed, 
although, in the cases of disclosures involving a small number of 
records, such an office could be expected to hide identifiers or to 
limit disclosures to certain pages of the medical record that are 
relevant to the purpose of the disclosure.
    In taking this approach, we intend to strike a balance between the 
need to maintain the confidentiality of protected health information 
and the economic cost of doing so. Health care entities must consider 
both aspects in devising their solutions. This approach is similar to 
the approach we proposed in the Notice of Proposed Rulemaking for the 
administrative simplification security and electronic signature 
standards.
1. Use and Disclosure for Treatment, Payment, and Health Care 
Operations.  (Sec. 164.506(a))
    [Please label comments about this section with the subject: 
``Treatment, payment, and health care operations'']
    We are proposing that, subject to limited exceptions for 
psychotherapy notes and research information unrelated to treatment 
discussed below, a covered entity be permitted to use or disclose 
protected health information without individual authorization for 
treatment, payment or health care operations.
    The Secretary's Recommendations proposed that covered entities be 
able to use individually identifiable health information without 
authorization of the identified individual for treatment and payment 
and for purposes that are ``compatible with and directly related to'' 
treatment and payment. The Recommendations further explained that the 
terms ``treatment'' and ``payment'' were to be construed broadly, 
encompassing treatment and payment for all patients. They also noted 
that the test of ``compatible with and directly related to'' is meant 
to be more restrictive than the test currently used in the Privacy Act, 
5. U.S.C. 552a, for determining whether a proposed ``routine use'' is 
sufficiently related to the primary purpose for which the information 
would be collected to permit its release under the proposed ``routine 
use.'' The Privacy Act permits release of such information if the 
proposed routine use is ``compatible with'' the purpose for which the 
information is collected. Our proposal is intended to be consistent 
with this discussion from the Secretary's Recommendations.
    a. General rule for treatment, payment, and health care operations. 
We are not proposing to require individual authorizations of uses and 
disclosures for health care and related purposes, although such 
authorizations are routinely gathered today as a condition of obtaining 
health care or enrolling in a health plan. Although many current 
disclosures of health information are made pursuant to individual 
authorizations, these authorizations provide individuals with little 
actual control over their health information. When an individual is 
required to sign a blanket authorization at the point of receiving care 
or enrolling for coverage, that consent is often not voluntary because 
the individual must sign the form as a condition of treatment or 
payment for treatment. Individuals are also often asked to sign broad 
authorizations but are provided little or no information about how 
their health information may be or will in fact be used. Individuals 
cannot make a truly informed decision without knowing all the possible 
uses, disclosures and re-disclosures to which their information will be 
subject. In addition, since the authorization usually precedes creation 
of the record, the individual cannot predict all the information the 
record may contain and therefore cannot make an informed decision as to 
what would be released.
    Our proposal is intended to make the exchange of protected health 
information relatively easy for health care purposes and more difficult 
for purposes other than health care. For individuals, health care 
treatment and payment are the core functions of the health care system. 
This is what they expect their health information will be used for when 
they seek medical care and present their proof of insurance to the 
provider. Consistent with this expectation, we considered requiring a 
separate individual authorization for every use or disclosure of 
information but rejected such an approach because it would not be 
realistic in an increasingly integrated health care system. For 
example, a requirement for separate patient authorization for each 
routine referral could impair care, by delaying consultation and 
referral, as well as payment.
    We therefore propose that covered entities be permitted to use and 
disclose protected health information without individual authorization 
for treatment and payment purposes, and for related purposes that we 
have defined as health care operations. For example, health care 
providers could maintain and refer to a medical record, disclose 
information to other providers or persons as necessary for consultation 
about diagnosis or treatment, and disclose information as part of 
referrals to other providers. Health care providers also could use a 
patient's protected health information for payment purposes such as 
submitting a claim to a payer. In addition, they could use a patient's 
protected health information for health care operations, such as use 
for an internal quality oversight review. We would note that, in the 
case of an individual where the provider has agreed to restrictions on 
use or disclosure of the patient's protected health information, the 
provider is bound by such restrictions as provided in Sec. 164.506(c).
    Similarly, health plans could use an enrollee's protected health 
information for payment purposes, such as reviewing and paying health 
claims that have been submitted to it, pre-admission screening of a 
request for hospitalization, or post-claim audits of health care 
providers. Health plans also could use an enrollee's protected health 
information for health care operations, such as reviewing the 
utilization patterns or outcome performance of providers participating 
in their network.
    Further, as described in more detail below, health care providers 
and health plans would not need individual authorization to provide 
protected health information to a business partner for treatment, 
payment or health care operations functions if the other requirements 
for disclosing to business partners are met. See proposed 
Sec. 164.506(e).
    We intend that the right to use and disclose protected health 
information be interpreted to apply for treatment and payment of all 
individuals. For example, in the course of providing care to a patient, 
a physician could wish to examine the records of other patients with 
similar conditions. Likewise, a physician could consult the records of 
several people in the same family or living in the same household to 
assist in diagnosis of conditions that could be contagious or that 
could arise from a common environmental factor. A health plan or a 
provider could use the protected health information of a number of 
enrollees to develop treatment protocols, practice guidelines, or to 
assess quality of care. All of these uses would be permitted under this 
proposed rule.
    Our proposal would not restrict to whom disclosures could be made 
for treatment, payment or operations. For example, covered entities 
could make disclosures to non-covered entities for payment purposes, 
such as a disclosure to a workers compensation carrier for coordination 
of benefits purposes. We note, however, that when disclosures are made 
to non-covered entities, the

[[Page 59941]]

ability of this proposed rule to protect the confidentiality of the 
information ends. This points to the need for passage of more 
comprehensive privacy legislation that would permit the restrictions on 
use and disclosure to follow the information beyond covered entities.
    We also propose to prohibit covered entities from seeking 
individual authorization for uses and disclosures for treatment, 
payment and health care operations unless required by State or other 
applicable law. As discussed above in this section, such authorizations 
could not provide meaningful privacy protections or individual control 
and could in fact cultivate in individuals erroneous understandings of 
their rights and protections.
    The general approach that we are proposing is not new. Some 
existing State health confidentiality laws permit disclosures without 
individual authorization to other health care providers treating the 
individual, and the Uniform Health-Care Information Act permits 
disclosure ``to a person who is providing health-care to the patient'' 
(9 part I, U.L.A. 475, 2-104 (1988 and Supp. 1998)). We believe that 
this approach would be the most realistic way to protect individual 
confidentiality in an increasingly data-driven, electronic and 
integrated health care system. We recognize, however, that particularly 
given the limited scope of the authority that we have under this 
proposed rule to reach some significant actors in the health care 
system, that other approaches could be of interest. We invite comments 
on whether other approaches to protecting individuals' health 
information would be more effective.
    b. Health care operations. We considered the extent to which the 
covered entities might benefit from further guidance on the types of 
activities that appropriately would be considered health care 
operations. The term is defined in proposed Sec. 164.504. In the 
debates that have surrounded privacy legislation before the Congress, 
there has been substantial discussion of the definition of health care 
operations, with some parties advocating for a very broad definition 
and others advocating a more restrictive approach.
    Given the lack of consensus over the extent of the activities that 
could be encompassed within the term health care operations, we 
determined that it would be helpful to identify activities that, in our 
opinion, are sufficiently unrelated to the treatment and payment 
functions to require a individual to authorize use of his or her 
information. We want to make clear that these activities would not be 
prohibited, and do not dispute that many of these activities are indeed 
beneficial to both individuals and the institutions involved. 
Nonetheless, they are not necessary for the key functions of treatment 
and payment and therefore would require the authorization of the 
individual before his/her information could be used. These activities 
would include but would not be limited to:
     The use of protected health information for marketing of 
health and non-health items and services;
     The disclosure of protected health information for sale, 
rent or barter;
     The use of protected health information by a non-health 
related division of the same corporation, e.g., for use in marketing or 
underwriting life or casualty insurance, or in banking services;
     The disclosure, by sale or otherwise, of protected health 
information to a plan or provider for making eligibility or enrollment 
determinations, or for underwriting or risk rating determinations, 
prior to the individual's enrollment in the plan;
     The disclosure of information to an employer for use in 
employment determinations; and
     The use or disclosure of information for fund raising 
purposes.
    We invite comments on the activities within the proposed 
definitions of ``treatment,'' ``payment,'' and ``health care 
operations,'' as well as the activities proposed to be excluded from 
these definitions.
    c. Exception for psychotherapy notes. We propose that a covered 
health care provider not be permitted to disclose psychotherapy notes, 
as defined by this proposed rule, for treatment, payment, or health 
care operations unless a specific authorization is obtained from the 
individual. In addition, a covered entity would not be permitted to 
condition treatment of an individual, enrollment of an individual in a 
health plan, or payment of a claim for benefits made by or on behalf of 
an individual on a requirement that the individual provide a specific 
authorization for the disclosure of psychotherapy notes.
    We would define ``psychotherapy notes'' to mean detailed notes 
recorded (in any medium) by a health care provider who is a mental 
health professional documenting or analyzing the contents of 
conversation during a private counseling session or a group, joint, or 
family counseling session. Such notes could be used only by the 
therapist who wrote them, would have to be maintained separately from 
the medical record, and could not be involved in the documentation 
necessary for health care treatment, payment, or operations (as defined 
in Sec. 164.504). Such term would not include medication prescription 
and monitoring, counseling session start and stop times or the 
modalities and frequencies of treatment furnished, results of clinical 
tests, or summaries of the following items: diagnoses, functional 
status, the treatment plan, symptoms, prognosis and progress to date.
    Psychotherapy notes are of primary value to the specific provider 
and the promise of strict confidentiality helps to ensure that the 
patient will feel comfortable freely and completely disclosing very 
personal information essential to successful treatment. Unlike 
information shared with other health care providers for the purposes of 
treatment, psychotherapy notes are more detailed and subjective and are 
subject to unique rules of disclosure. In Jaffee v. Redmond, 518 U. S. 
1 (1996), the Supreme Court ruled that conversations and notes between 
a patient and psychotherapist are confidential and protected from 
compulsory disclosure. The language in the Supreme Court opinion makes 
the rationale clear:

    Like the spousal and attorney-client privileges, the 
psychotherapist-patient privilege is ``rooted in the imperative need 
for confidence and trust.'' * * * Treatment by a physician for 
physical ailments can often proceed successfully on the basis of a 
physical examination, objective information supplied by the patient, 
and the results of diagnostic tests. Effective psychotherapy, by 
contrast, depends upon an atmosphere of confidence and trust in 
which the patient is willing to make a frank and complete disclosure 
of facts, emotions, memories, and fears. Because of the sensitive 
nature of the problems for which individuals consult 
psychotherapists, disclosure of confidential communications made 
during counseling sessions may cause embarrassment or disgrace. For 
this reason, the mere possibility of disclosure may impede 
development of the confidential relationship necessary for 
successful treatment. As the Judicial Conference Advisory Committee 
observed in 1972 when it recommended that Congress recognize a 
psychotherapist privilege as part of the Proposed Federal Rules of 
Evidence, a psychiatrist's ability to help her patients ``is 
completely dependent upon (the patients') willingness and ability to 
talk freely. This makes it difficult if not impossible for (a 
psychiatrist) to function without being able to assure * * * 
patients of confidentiality and, indeed, privileged communication. 
Where there may be exceptions to this general rule * * *, there is 
wide agreement that confidentiality is a sine qua non for successful 
psychiatric treatment. * * *''
    By protecting confidential communications between a 
psychotherapist and her patient

[[Page 59942]]

from involuntary disclosure, the proposed privilege thus serves 
important private interests. * * * The psychotherapist privilege 
serves the public interest by facilitating the provision of 
appropriate treatment for individuals suffering the effects of a 
mental or emotional problem. The mental health of our citizenry, no 
less than its physical health, is a public good of transcendent 
importance.
    That it is appropriate for the federal courts to recognize a 
psychotherapist privilege under Rule 501 is confirmed by the fact 
that all 50 States and the District of Columbia have enacted into 
law some form of psychotherapist privilege. * * * Because state 
legislatures are fully aware of the need to protect the integrity of 
the fact finding functions of their courts, the existence of a 
consensus among the States indicates that ``reason and experience'' 
support recognition of the privilege. In addition, given the 
importance of the patient's understanding that her communications 
with her therapist will not be publicly disclosed, any State's 
promise of confidentiality would have little value if the patient 
were aware that the privilege would not be honored in a federal 
court. * * * Jaffee, 518 U.S. 7-9.

    The special status of the psychotherapist privilege in our society 
as well as the physical and conceptual segregation of the psychotherapy 
notes makes this prohibition on disclosures for treatment, payment and 
health care operations without a specific authorization from the 
individual reasonable and practical.
    We note that the policy being applied to psychotherapy notes 
differs from the policy being applied to most other types of protected 
health information. For most protected health information, a covered 
entity would be prohibited from soliciting an authorization from an 
individual for treatment, payment and health operations unless such an 
authorization is required by other applicable law. In this case, 
because of the special status of psychotherapy notes as described 
above, we propose that a specific authorization be required before such 
notes can be disclosed within the treatment and payment systems. We 
propose this special treatment because there are few reasons why other 
health care entities should need the psychotherapy notes about an 
individual, and in those cases, the individual is in the best position 
to determine if the notes should be disclosed. For example, an 
individual could authorize disclosure if they are changing health care 
providers. Since we have defined psychotherapy notes in such a way that 
they do not include information that health plans would need to process 
a claim for services, special authorizations for payment purposes 
should be rare. We would note that the provisions governing 
authorizations under Sec. 164.508 would apply to the special 
authorizations under this provision.
    We also propose that covered entities not be permitted to condition 
treatment or payment decisions on a requirement that an individual 
provide a specific authorization for the use or disclosure of 
psychotherapy notes. The special protections that are being proposed 
would not be meaningful if covered entities could coerce individuals by 
conditioning treatment or payment decisions on a requirement that the 
individual authorize use or disclosures of such notes. This requirement 
would not prohibit the provider that creates the psychotherapy notes 
information from using the notes for treatment of the individual. The 
provider could not, however, condition the provision of treatment on a 
requirement that the individual authorize the use of the psychotherapy 
notes by the covered entity for other purposes or the disclosure of the 
notes by the provider to others.
    We considered including other disclosures permitted under proposed 
Sec. 164.510 within the prohibition described in this provision, but 
were unsure if psychotherapy notes were ever relevant to the public 
policy purposes underlying those disclosures. For example, we would 
assume that such notes are rarely disclosed for public health purposes 
or to next of kin. We solicit comment on whether there are additional 
categories of disclosures permitted under proposed Sec. 164.510 for 
which the disclosure of psychotherapy notes by covered entities without 
specific individual authorization would be appropriate.
    d. Exception for research information unrelated to treatment. Given 
the voluntary, often altruistic, nature of research participation, and 
the experimental character of data generated from many research 
studies, research participants should have assurances that the 
confidentiality of their individually identifiable information will be 
maintained in a manner that respects these unique characteristics. In 
the process of conducting health research, some information that is 
collected could be related to the delivery of health care to the 
individual and some could be unrelated to the care of the individual. 
Some information that is generated in the course of a research study 
could have unknown analytic validity, clinical validity, or clinical 
utility. In general, unknown analytic or clinical validity means that 
the sensitivity, specificity, and predictive value of the research 
information is not known. Specifically, analytic validity refers to how 
well a test performs in measuring the property or characteristic it is 
intended to measure. Another element of the test's analytical validity 
is its reliability--that is, it must give the same result each time. 
Clinical validity is the accuracy with which a test predicts a clinical 
condition. Unknown clinical utility means that there is an absence of 
scientific and medical agreement regarding the applicability of the 
information for the diagnosis, prevention, or treatment of any malady, 
or the assessment of the health of the individual.
    We would define ``research information unrelated to treatment'' as 
information that is received or created by a covered entity in the 
course of conducting research for which there is insufficient 
scientific and medical evidence regarding the validity or utility of 
the information such that it should not be used for the purpose of 
providing health care, and with respect to which the covered entity has 
not requested payment from a health plan.
    Such information should never be used in a clinical treatment 
protocol but could result as a byproduct of such a protocol. For 
example, consider a study which involves the evaluation of a new drug, 
as well as an assessment of a genetic marker. The drug trial includes 
physical and radiographic examinations, as well as blood tests to 
monitor potential toxicity of the new drug on the liver; all of these 
procedures are part of the provision of health care, and therefore, 
would constitute ``protected health information,'' but not ``research 
information unrelated to treatment.'' In the same study, the 
investigators are searching for a genetic marker for this particular 
disease. To date, no marker has been identified and it is uncertain 
whether or not the preliminary results from this research study would 
prove to be a marker for this disease. The genetic information 
generated from this study would constitute ``research information 
unrelated to treatment''.
    We solicit comment on this definition of ``research information 
unrelated to treatment'' and how it would work in practice.
    Because the meaning of this information is currently unknown, we 
would prohibit its use and disclosure for treatment, payment and health 
care operations unless a specific authorization is obtained from the 
subject of the information. Failing to limit the uses and disclosures 
of this information within the health payment system would place 
research participants at increased risk of discrimination, which could 
result in

[[Page 59943]]

individuals refusing to volunteer to participate in this type of 
research. Without the special protections that we are proposing, we are 
concerned that much potentially life-saving research could be halted. 
Moreover, because this information that lacks analytical or clinical 
validity and clinical utility, and because we have defined it in terms 
that preclude researchers from seeking third-party reimbursement for 
its creation, there would not be a reason for this information to be 
further used or disclosed within the treatment and payment system 
without individual authorization.
    We also propose that covered entities not be permitted to condition 
treatment or payment decisions on a requirement that an individual 
provide a specific authorization for the use or disclosure of research 
information unrelated to treatment. The special protections that are 
being proposed would not be meaningful if covered entities could coerce 
individuals into authorizing disclosure by conditioning treatment or 
payment decisions on a requirement that the individual authorize 
disclosures of such information. This requirement would not prohibit 
the covered entity that creates the information from using the 
information for the research purposes for which it was collected. The 
entity could not, however, condition the provision of treatment on a 
requirement that the individual authorize use of research information 
unrelated to treatment by the covered entity for other purposes or the 
disclosure of the information by the covered entity to others.
    We considered including other of the uses and disclosures that 
would be permitted under Sec. 164.510 within the prohibition described 
in this provision, but were unsure if research information unrelated to 
treatment would ever be relevant to the public policy purposes 
underlying those disclosures. We solicit comment on whether there are 
additional categories of uses or disclosures that would be permitted 
under proposed Sec. 164.510 for which the use or disclosure of such 
information by covered entities without specific individual 
authorization would be appropriate.
2. Minimum Necessary Use and Disclosure.  (Sec. 164.506(b))
    [Please label comments about this section with the subject: 
``Minimum necessary'']
    We propose that, except as discussed below, a covered entity must 
make all reasonable efforts not to use or disclose more than the 
minimum amount of protected health information necessary to accomplish 
the intended purpose of the use or disclosure, taking into 
consideration practical and technological limitations.
    In certain circumstances, the assessment of what is minimally 
necessary is appropriately made by a person other than the covered 
entity; in those cases, discussed in this paragraph, and reflected in 
proposed Sec. 164.506(b)(1)(i), the requirements of this section would 
not apply. First, the covered entity would not be required to make a 
``minimum necessary'' analysis for the standardized content of the 
various HIPAA transactions, since that content has been determined 
through regulation. Second, with one exception, when an individual 
authorizes a use or disclosure the covered entity would not be required 
to make a ``minimum necessary'' determination. In such cases, the 
covered entity would be unlikely to know enough about the information 
needs of the third party to make a ``minimum necessary'' determination. 
The exception, when the ``minimum necessary'' principle would apply to 
an authorization, is for authorizations for use of protected health 
information by the covered entity itself. See proposed 
Sec. 164.508(a)(2). Third, with respect to disclosures that are 
mandatory under this or other law, and which would be permitted under 
the rules proposed below, public officials, rather than the covered 
entity, would determine what information is required (e.g., coroners 
and medical examiners, State reporting requirements, judicial 
warrants). See proposed Secs. 164.510 and 164.506(b)(1)(ii). Fourth, 
disclosure made pursuant to a request by the individual for access to 
his or her protected health information presents no possible privacy 
threat and therefore lies outside this requirement. See proposed 
Sec. 164.506(b)(1)(i).
    Under this proposal, covered entities generally would be required 
to establish policies and procedures to limit the amount of protected 
health care information used or disclosed to the minimum amount 
necessary to meet the purpose of the use or disclosure, and to limit 
access to protected health information only to those people who need 
access to the information to accomplish the use or disclosure. With 
respect to use, if an entity consists of several different components, 
the entity would be required to create barriers between components so 
that information is not used inappropriately. For example, a health 
plan that offers other insurance products would have policies and 
procedures to prevent protected health information from crossing over 
from one product line to another. The same principle applies to 
disclosures. For example, if a covered entity opts to disclose 
protected health information to a researcher pursuant to proposed 
Sec. 164.510(j), it would need to ensure that only the information 
necessary for the particular research protocol is disclosed.
    It should be noted that, under section 1173(d) of the Act, covered 
entities would also be required to satisfy the requirements of the 
Security standards, by establishing policies and procedures to provide 
access to health information systems only to persons who require 
access, and implement procedures to eliminate all other access. Thus, 
the privacy and security requirements would work together to minimize 
the amount of information shared, thereby lessening the possibility of 
misuse or inadvertent release.
    A ``minimum necessary'' determination would need to be consistent 
with and directly related to the purpose of the use or disclosure and 
take into consideration the ability of a covered entity to delimit the 
amount of information used or disclosed and the relative burden imposed 
on the entity. The proposed minimum necessary requirement is based on a 
reasonableness standard: covered entities would be required to make 
reasonable efforts and to incur reasonable expense to limit the use and 
disclosure of protected health information as provided in this section.
    In determining what a reasonable effort is under this section, 
covered entities should take into consideration the amount of 
information that would be used or disclosed, the extent to which the 
use or disclosure would extend the number of individuals or entities 
with access to the protected health information, the importance of the 
use or disclosure, the likelihood that further uses or disclosures of 
the protected health information could occur, the potential to achieve 
substantially the same purpose with de-identified information, the 
technology available to limit the amount of protected health 
information that is used or disclosed, the cost of limiting the use or 
disclosure, and any other factors that the covered entity believes are 
relevant to the determination. We would expect that in most cases where 
covered entities have more information than is necessary to accomplish 
the purpose of a use or disclosure, some method of limiting the 
information that is used or disclosed could be found.
    We note that all of the uses and disclosures subject to the 
requirements of this provision are permissive; the minimum necessary 
provision does not

[[Page 59944]]

apply to uses or disclosures mandated by law. Covered entities should 
not make uses or disclosures of protected health information where they 
are unable to make any efforts to reasonably limit the amount of 
protected health information used or disclosed for a permissive 
purpose. Where there is ambiguity regarding the particular information 
to be used or disclosed, this provision should be interpreted to 
require the covered entity or make some effort to limit the amount of 
information used or disclosed.
    We note that procedures for implementing the minimum necessary 
requirement for uses would often focus on limiting the physical access 
that employees, business partners and others would have to the 
protected health information. Procedures which limit the specific 
employees or business partners, or the types of employees or business 
partners, who would be qualified to gain access to particular records 
would often be appropriate. Covered entities with advanced 
technological capabilities should also consider limiting access to 
appropriate portions of protected health information when it would be 
practical to do so.
    The ``minimum necessary'' determination would include a 
determination that the purpose of the use or disclosure could not be 
reasonably accomplished with information that is not identifiable. Each 
covered entity would be required to have policies for determining when 
information must be stripped of identifiers before disclosure. If 
identifiers are not removed simply because of inconvenience to the 
covered entity, the ``minimum necessary'' rule would be violated.
    Similarly, disclosure of an entire medical record, in response to a 
request for something other than the entire medical record, would 
presumptively violate the ``minimum necessary'' rule. Except where the 
individual has specifically authorized use or disclosure of the full 
medical record, when a covered entity receives a request for an entire 
medical record, the covered entity could not, under these proposed 
rules, disclose the entire record unless the request included an 
explanation of why the purpose of the disclosure could not reasonably 
be accomplished without the entire medical record.
    The decisions called for in determining what would be the minimum 
necessary information to accomplish an allowable purpose should include 
both a respect for the privacy rights of the subjects of the medical 
record and the reasonable ability of covered entities to delimit the 
amount of individually identifiable health information in otherwise 
permitted uses and disclosures. For example, a large enterprise that 
makes frequent electronic disclosures of similar data would be expected 
to remove identifiers or to limit the data fields that are disclosed to 
fit the purpose of the disclosure. An individual physician's office 
would not be expected to have the same capabilities to limit the amount 
of information disclosed, although, in the cases of disclosures 
involving a small number of records, such an office could be expected 
to hide identifiers or to limit disclosures to certain pages of the 
medical record that are relevant to the purpose of the disclosure.
    Even where it might not be reasonable for a covered entity to limit 
the amount of information disclosed, there could be opportunities, when 
the use or disclosure does not require authorization by the individual, 
to reduce the scope of the disclosure in ways that substantially 
protect the privacy interests of the subject. For example, if a health 
researcher wants access to relatively discrete parts of medical records 
that are presently maintained in paper form for a large number of 
patients with a certain condition, it could be financially prohibitive 
for the covered entity to isolate the desired information. However, it 
could be reasonable for the covered entity to allow the researcher to 
review the records on-site and to abstract only the information 
relevant to the research. Much records research is done today through 
such abstracting, and this could be a good way to meet the ``minimum 
necessary'' principle. By limiting the physical distribution of the 
record, the covered entity would have effectively limited the scope of 
the disclosure to the information necessary for the purpose.
    Proposed Sec. 164.506(b) generally would place the responsibility 
for determining what disclosure is the ``minimum necessary'' on the 
covered entity making the disclosure. The exception would be for health 
plan requests for information from health care providers for auditing 
and related purposes. In this instance, since the provider is not in a 
position to negotiate with the payer, the duty would be shifted to the 
payer to request the ``minimum necessary'' information for the purpose. 
See proposed Sec. 164.506(b)(1)(iv). Whenever a health plan requests a 
disclosure, it would be required to limit its requests to the 
information to achieve the purpose of the request. For example, a 
health plan seeking protected health information from a provider or 
other health plan to process a payment should not request the entire 
health record unless it is actually necessary.
    In addition, the proposal would permit covered entities to 
reasonably rely on requests by certain public agencies in determining 
the minimum necessary information for certain disclosures. For example, 
a covered entity that reasonably relies on the requests of public 
health agencies, oversight agencies, law enforcement agencies, coroners 
or medical examiners would be in compliance with this requirement. See 
proposed Sec. 164.506(b)(3).
    As discussed in prior HIPAA proposed rulemakings, it is likely to 
be easier to limit disclosure when disclosing computerized records than 
when providing access to paper records. Technological mechanisms to 
limit the amount of information available for a particular purpose, and 
make information available without identifiers, are an important 
contribution of technology to personal privacy. For example, the fields 
of information that are disclosed can be limited, identifiers 
(including names, addresses and other data) can be removed, and 
encryption can restrict to authorized personnel the ability to link 
identifiers back to the record.
    For electronic information covered by the proposed rules, the 
``minimum necessary'' requirement would mean reviewing, forwarding, or 
printing out only those fields and records relevant to the user's need 
for information. Where reasonable (based on the size, sophistication 
and volume of the covered entity's electronic information systems), 
covered entities would configure their record systems to allow 
selective access to different portions of the record, so that, for 
example, administrative personnel get access to only certain fields, 
and medical personnel get access to other fields. This selective access 
to information would be implemented using the access control technology 
discussed in the electronic security regulation.
    For non-electronic information covered by the proposed rules, 
``minimum necessary'' would mean the selective copying of relevant 
parts of protected health information or the use of ``order forms'' to 
convey the relevant information. These techniques are already in use in 
the health care environment today, not because of privacy 
considerations, but because of the risk of losing access to the full 
medical record when needed for clinic or emergency visits.

[[Page 59945]]

    This rule would require, in proposed Sec. 164.520, that each 
covered entity document the administrative policies and procedures that 
it will use to meet the requirements of this section. With respect to 
the ``minimum necessary'' compliance standard, such procedures would 
have to describe the process or processes by which the covered entity 
will make minimum necessary determinations, the person or persons who 
will be responsible for making such determinations, and the process in 
place to periodically review routine uses and disclosures in light of 
new technologies or other relevant changes. Proposed uses or 
disclosures would have to be reviewed by persons who have an 
understanding of the entity's privacy policies and practices, and who 
have sufficient expertise to understand and weigh the factors described 
above. See proposed Sec. 164.506(b)(2). The policies that would be 
reasonable would vary depending on the nature and size of the covered 
entity. For large enterprises, the documentation of policies and 
procedures might identify the general job descriptions of the people 
that would make such decisions throughout the organization.
    In addition, the procedures would provide that the covered entity 
will review each request for disclosure individually on its own merits 
(and, for research, the documentation of required IRB or other 
approval). Covered entities should not have general policies of 
approving all requests (or all requests of a particular type) for 
disclosures or uses without carefully considering the factors 
identified above as well as other information specific to the request 
that the entity finds important to the decision.
    We understand that the requirements outlined in this section do not 
create a bright line test for determining the minimum necessary amount 
of protected health information appropriate for most uses or 
disclosures. Because of this lack of precision, we considered 
eliminating the requirement altogether. We also considered merely 
requiring covered entities to address the concept within their internal 
privacy procedures, with no further guidance as to how each covered 
entity would address the issue. These approaches were rejected because 
minimizing both the amount of protected health information used and 
disclosed within the health care system and the number of persons who 
have access to such information is vital if we are to successfully 
enhance the confidentiality of people's personal health information. We 
invite comments on the approach that we have adopted and on alternative 
methods of implementing the minimum necessary principle.
3. Right to Restrict Uses and Disclosures.  (Sec. 164.506(c))
    [Please label comments about this section with the subject: ``Right 
to restrict'']
    We propose to permit in Sec. 164.506(c) that individuals be able to 
request that a covered entity restrict further uses and disclosures of 
protected health information for treatment, payment, or health care 
operations, and if the covered entity agrees to the requested 
restrictions, the covered entity could not make uses or disclosures for 
treatment, payment or health care operations that are inconsistent with 
such restrictions, unless such uses or disclosures are mandated by law. 
This provision would not apply to health care provided to an individual 
on an emergency basis.
    This proposal would not restrict the right of a provider to make an 
otherwise permissible disclosure under Sec. 164.510, such as a 
disclosure for public health or emergency purposes. While there is 
nothing in this proposed rule that would prohibit a provider and an 
individual from agreeing in advance not to make such disclosures, such 
an agreement would not be enforceable through this proposed rule.
    We should note that there is nothing in this proposed rule that 
requires a covered entity to agree to a request to restrict, or to 
treat or provide coverage to an individual requesting a restriction 
under this provision. Covered entities who do not wish to, or due to 
contractual obligations cannot, restrict further use or disclosure 
would not be obligated to treat an individual making a request under 
this provision. For example, some health care providers could feel that 
it is medically inappropriate to honor patient requests under this 
provision. The medical history and records of a patient, particularly 
information about current medications and other therapies, are often 
very much relevant when new treatment is sought, and the patient cannot 
seek to withhold this information from subsequent providers without 
risk.
    Under this proposal, individuals could request broad restrictions 
on further uses and disclosures for treatment, payment or health care 
operations, or could request more limited restrictions relating to 
further uses or disclosures of particular portions of the protected 
health information or to further disclosures to particular persons. 
Covered entities could choose to honor the individual's request, could 
decline to treat or provide coverage to the individual, or could 
propose an alternative restriction of further use or disclosure. The 
covered entity would not be bound by an individual's request for 
restriction until its scope has been agreed to by the individual and 
the provider. Once an agreement has been reached, however, a covered 
entity that uses or discloses the protected health information 
resulting from the encounter in any manner that violates such agreement 
would be in violation of this provision.
    We are not proposing to extend this right to individuals receiving 
emergency medical care, because emergency situations may not afford 
sufficient opportunity for the provider and patient to discuss the 
potential implications of restricting further use and disclosure of the 
resulting medical information. Additionally, a health care provider may 
not be free to refuse treatment to an emergency patient if the provider 
does not wish to honor a request to restrict further use or disclosure 
of health information, leaving the provider in an unfair position where 
she or he must choose between permitting medical harm to come to the 
patient or honoring a request that she or he feels may be inappropriate 
or which may violate the provider's business practices or contractual 
obligations. Some health care providers are legally required to treat 
emergency patients (e.g., hospital emergency rooms), and would have no 
opportunity to refuse treatment as a result of a request to restrict 
further use and disclosure under this provision. Under the pressure of 
an emergency, a provider should not be expected to adhere to the 
restrictions associated with a particular individual's information.
    Under this proposal, covered entities would not be responsible for 
ensuring that agreed-upon restrictions are honored when the protected 
health information leaves the control of the covered entity or its 
business partners. For example, a provider would not be out of 
compliance if information she or he disclosed to another provider 
(consistent with the agreed upon restrictions and with notice of the 
applicable restrictions on uses and disclosures) is subsequently used 
or disclosed in violation of the restrictions.
    The agreement to restrict use and disclosure under this provision 
would have to be documented to be binding on the covered entity. In 
proposed Sec. 164.520, we would require covered entities to develop and 
document policies and procedures reasonably designed to ensure that the 
requests are followed, i.e., that unauthorized uses and disclosures are 
not made.

[[Page 59946]]

    We note that this proposed rule would not permit covered entities 
to require individuals to invoke their right to restrict uses and 
disclosures; only the patient could make a request and invoke this 
right to restrict.
    We considered providing individuals substantially more control over 
their protected health information by requiring all covered entities to 
attempt to accommodate any restrictions on use and disclosure requested 
by patients. We rejected this option as unworkable. While industry 
groups have developed principles for requiring patient authorizations, 
we have not found widely accepted standards for implementing patient 
restrictions on uses or disclosures. Restrictions on information use or 
disclosure contained in patient consent forms are sometimes ignored 
because they may not be read or are lost in files. Thus, it seems 
unlikely that a requested restriction could successfully follow a 
patient's information through the health care system--from treatment to 
payment, through numerous operations, and potentially through certain 
permissible disclosures. Instead we would limit the provision to 
restrictions that have been agreed to by the covered entity.
    We recognize that the approach that we are proposing could be 
difficult because of the systems limitations described above. However, 
we believe that the limited right for patients included in this 
proposed rule can be implemented because it only applies in instances 
in which the covered entity agrees to the restrictions. We assume that 
covered entities would not agree to restrictions that they are unable 
to implement.
    We considered limiting the rights under this provision to patients 
who pay for their own health care (or for whom no payment was made by a 
health plan). Individuals and health care providers that engage in 
self-pay transactions have minimal effect on the rights or 
responsibilities of payers or other providers, and so there would be 
few instances when a restriction agreed to in such a situation would 
have negative implications for the interests of other health care 
actors. Limiting the right to restrict to self-pay patients also would 
reduce the number of requests that would be made under this provision. 
We rejected this approach however, because the desire to restrict 
further uses and disclosures arises in many instances other than self-
pay situations. For example, a patient could request that his or her 
records not be shared with a particular physician because that 
physician is a family friend. Or an individual could be seeking a 
second opinion and might not want his or her treating physician 
consulted. Individuals have a legitimate interest in restricting 
disclosures in these situations. We solicit comment on the 
appropriateness of limiting this provision to instances in which no 
health plan payment is made on behalf of the individual.
    In making this proposal, we recognize that it could be difficult in 
some instances for patients to have a real opportunity to make 
agreements with covered entities, because it would not be clear in all 
cases which representatives of a covered entity could make an agreement 
on behalf of the covered entity. There also are concerns about the 
extent to which covered entities could ensure that agreed-upon 
restrictions would be followed. As mentioned above, current 
restrictions contained in patient consent forms are sometimes ignored 
because the person handling the information is unaware of the 
restrictions. We solicit comments on the administrative burdens this 
provision creates for covered entities, such as the burdens of 
administering a system in which some information is protected by 
federal law and other information is not.
    We would note that we expect that systems for handling patient 
requests to restrict use and disclosure of information will become more 
responsive as technology develops. Therefore, we will revisit this 
provision as what is practicable changes over time. Proposed 
requirements for documenting internal procedures to implement this 
proposed provision are included in proposed Sec. 164.520. We request 
comments on whether the final rule should provide examples of 
appropriate, scalable systems that would be in compliance with this 
standard.
4. Creation of De-identified Information  (164.506(d))
    [Please label comments about this section with the subject: 
``Creation of de-identified information'']
    In this rule we are proposing that covered entities and their 
business partners be permitted to use protected health information to 
create de-identified health information. Covered entities would be 
permitted to further use and disclose such de-identified information in 
any way, provided that they do not disclose the key or other mechanism 
that would enable the information to be re-identified, and provided 
that they reasonably believe that such use or disclosure of de-
identified information will not result in the use or disclosure of 
protected health information. See proposed Sec. 164.506(d)(1). This 
means that a covered entity could not disclose de-identified 
information to a person if the covered entity reasonably believes that 
the person would be able to re-identify some or all of that 
information, unless disclosure of protected health information to such 
person would be permitted under this proposed rule. In addition, a 
covered entity could not use or disclose the key to coded identifiers 
if this rule would not permit the use or disclosure of the identified 
information to which the key pertains. If a covered entity re-
identifies the de-identified information, it may only use or disclose 
the re-identified information consistent with these proposed rules, as 
if it were the original protected health information.
    In some instances, covered entities creating de-identified health 
information could want to use codes or identifiers to permit data 
attributable to the same person to be accumulated over time or across 
different sources of data. For example, a covered entity could 
automatically code all billing information as it enters the system, 
substituting personal identifiers with anonymous codes that permit 
tracking and matching of data but do not permit people handling the 
data to create protected health information. Such a mechanism would be 
permissible as long as the key to unlocking the codes is not available 
to the people working with the de-identified information, and the 
entity otherwise makes no attempt to create protected health 
information from the de-identified information.
    There are many instances in which such individually identifiable 
health information is stripped of the information that could identify 
individual subjects and is used for analytical, statistical and other 
related purposes. Large data sets of de-identified information can be 
used for innumerable purposes that are vital to improving the 
efficiency and effectiveness of health care delivery, such as 
epidemiological studies, comparisons of cost, quality or specific 
outcomes across providers or payers, studies of incidence or prevalence 
of disease across populations, areas or time, and studies of access to 
care or differing use patterns across populations, areas or time. 
Researchers and others often obtain large data sets with de-identified 
information from providers and payers (including from public payers) to 
engage in these types of studies. This information is valuable for 
public health activities (e.g., to identify cost-effective 
interventions for a particular disease) as well as for

[[Page 59947]]

commercial purposes (e.g., to identify areas for marketing new health 
care services).
    We intend that this proposed provision will permit the important 
health care research that is being conducted today to continue under 
this rule. Indeed, it would be our hope that covered entities, their 
business partners, and others would make greater use of de-identified 
health information than they do today, when it is sufficient for the 
research purpose. Such practice would reduce the confidentiality 
concerns that result from the use of individually identifiable health 
information for some of these purposes. The selective transfer of 
health information without identifiers into an analytic database would 
significantly reduce the potential for privacy violations while 
allowing broader access to information for analytic purposes, without 
the overhead of audit trails and IRB review. For example, providing de-
identified information to a pharmaceutical manufacturer to use in 
determining patterns of use of a particular pharmaceutical by general 
geographic location would be appropriate, even if the information were 
sold to the manufacturer. Such analysis using protected health 
information would be research and therefore would require individual 
authorization or approval by an IRB or similar board. We note that data 
that includes an individual's address is ``identifiable'' by definition 
and could not be used in such databases.
    We invite comment on the approach that we are proposing and on 
whether alternative approaches to standards for entities determining 
when health information can reasonably be considered no longer 
individually identifiable.
5. Application to business partners.  (Sec. 164.506(e))
    [Please label comments about this section with the subject: 
``Business partners'']
    In Sec. 164.506(e), we propose to require covered entities to take 
specific steps to ensure that protected health information disclosed to 
a business partner remains protected. We intend these provisions to 
allow customary business relationships in the health care industry to 
continue while providing privacy protections to the information shared 
in these relationships. Business partners would not be permitted to use 
or disclose protected health information in ways that would not be 
permitted of the covered entity itself under these rules.
    Other than for purposes of consultation or referral for treatment, 
we would allow covered entities to disclose protected health 
information to business partners only pursuant to a written contract 
that would, among other specified provisions, limit the business 
partner's uses and disclosures of protected health information to those 
permitted by the contract, and would impose certain security, 
inspection and reporting requirements on the business partner. We would 
hold the covered entity responsible for certain violations of this 
proposed rule made by their business partners, and require assignment 
of responsibilities when a covered entity acts as a business partner of 
another covered entity.
    a. Who is a business partner? Under this proposed rule, a business 
partner would be a person to whom the covered entity discloses 
protected health information so that the person can carry out, assist 
with the performance of, or perform on behalf of, a function or 
activity for the covered entity. This would include contractors or 
other persons who receive protected health information from the covered 
entity (or from another business partner of the covered entity) for the 
purposes described in the previous sentence, including lawyers, 
auditors, consultants, third-party administrators, health care 
clearinghouses, data processing firms, billing firms, and other covered 
entities. This would not include persons who would be members of the 
covered entity's workforce. The key features of the relationship would 
be that the business partner is performing an activity or function for 
or on behalf of the covered entity and that the business partner 
receives protected health information from the covered entity as part 
of providing such activity or function.
    Many critical functions are performed every day by individuals and 
organizations that we would define as business partners. Under the 
proposal, billing agents, auditors, third-party administrators, 
attorneys, private accreditation organizations, clearinghouses, 
accountants, data warehouses, consultants and many other actors would 
be considered business partners of a covered entity. Most covered 
entities will use one or more business partners, to assist with 
functions such as claims filing, claims administration, utilization 
review, data storage, or analysis. For example, if a covered entity 
seeks accreditation from a private accreditation organization and 
provides such organization with protected health information as part of 
the accreditation process, the private accreditation organization would 
be a business partner of the covered entity. This would be true even if 
a third party, such as an employer or a public agency, required 
accreditation as a condition of doing business with it. The 
accreditation is being performed for the covered entity, not the third 
party, in such cases.
    The covered entity may have business relationships with 
organizations that would not be considered to be business partners 
because protected health information is not shared or because services 
are not provided to the covered entity. For example, a covered entity 
could contract with another organization for facility management or 
food services; if these organizations do not receive protected health 
information for these functions or activities, they would not be 
considered business partners. In the case where a covered entity 
provides management services to another organization, the other 
organization would not be a business partner because it would be 
receiving, not providing, a service or function.
    Under the proposal, a covered entity could become a business 
partner of another covered entity, such as when a health plan acts as a 
third-party administrator to an insurance arrangement or a self-funded 
employee benefit plan. In such cases, we propose that the authority of 
the covered entity acting as a business partner to use and disclose 
protected health information be constrained to the authority that any 
business partner in the same situation would have. Thus, the authority 
of a covered entity acting as a business partner to use and disclose 
protected health information obtained as a business partner would be 
limited by the contract or arrangement that created the business 
partner relationship.
    In most cases, health care clearinghouses would fall under our 
definition of ``business partner'' because they receive protected 
health information in order to provide payment processing and other 
services to health plans, health care providers and their business 
partners, a case that would fall under our definition of ``business 
partner.'' Therefore, although health care clearinghouses would be 
covered entities, in many instances under this proposed rule they would 
also be treated as business partners of the health care providers or 
health plans for whom they are performing a service. We would note that 
because health care clearinghouses would generally be operating as 
business partners, we are proposing not to apply several requirements 
to health care clearinghouses that we otherwise would apply to covered 
plans and providers, such as requiring a notice of information

[[Page 59948]]

practices, access for inspection and copying, and accommodation of 
requests for amendment or correction. See proposed Secs. 164.512, 
164.514 and 164.516.
    b. Limitations on use or disclosure.
    i. Scope of the covered entity's authority.
    Under this proposed rule, a business partner would be acting on 
behalf of a covered entity, and we propose that its use or disclosure 
of protected health information be limited to the same extent that the 
covered entity for whom they are acting would be limited. Thus, a 
business partner could have no more authority to use or disclose 
protected health information than that possessed by the covered entity 
from which the business partner received the information. For example, 
a business partner could not sell protected health information to a 
financial services firm without individual authorization because the 
covered entity would not be permitted to do so under these proposed 
rules. We would note that a business partner's authority to use and 
disclose protected health information could be further restricted by 
its contract with a covered entity, as described below.
    We are not proposing to require the business partners of covered 
entities to develop and distribute a notice of information practices, 
as provided in proposed Sec. 164.512. A business partner would, 
however, be bound by the terms of the notice of the covered entity from 
which it obtains protected health information. For example, if a 
covered entity provided notice to its subscribers that it would not 
engage in certain permissible disclosures of protected health 
information, we are proposing that such a limitation would apply to all 
of the business partners of the covered entity that made the 
commitment. See proposed Sec. 164.506(e). We are proposing this 
approach so that individuals could rely on the notices that they 
receive from the covered entities to which they disclose protected 
health information. If the business partners of a covered entity were 
able to make wider use or make more disclosures than the covered 
entity, the patients or enrollees of the covered entity would have 
difficulty knowing how their information was being used and to whom it 
was being disclosed.
    ii. Scope of the contractual agreement.
    We are also proposing that a business partner's use and disclosure 
of protected health information be limited by the terms of the business 
partner's contractual agreement with the covered entity. We propose 
that a contract between a covered entity and a business partner could 
not grant the business partner authority to make uses or disclosures of 
protected health information that the covered entity itself would not 
have the authority to make. The contract between a covered entity and a 
business partner could further limit the business partner's authority 
to use or disclose protected health information as agreed to by the 
parties. Further, the business partner would have to apply the same 
limitations to its subcontractors (or persons with similar 
arrangements) who assist with or carry out the business partner's 
activities.
    To help ensure that the uses and disclosures of business partners 
would be limited to those recognized as appropriate by the covered 
entities from whom they receive protected health information, subject 
to the exception discussed below, we are proposing that covered 
entities be prohibited from disclosing protected health information to 
a business partner unless the covered entity has entered into a written 
contract with the business partner that meets the requirements of this 
subsection. See proposed Sec. 164.506(e)(2)(i). The written contract 
between a covered entity and a business partner would be required to:
     Prohibit the business partner from further using or 
disclosing the protected health information for any purpose other than 
the purpose stated in the contract.
     Prohibit the business partner from further using or 
disclosing the protected health information in a manner that would 
violate the requirements of this proposed rule if it were done by the 
covered entity. As discussed above, the covered entity could not permit 
the business partner to make uses or disclosures that the covered 
entity could not make.
     Require the business partner to maintain safeguards as 
necessary to ensure that the protected health information is not used 
or disclosed except as provided by the contract. We are only proposing 
a general requirement; the details can be negotiated to meet the 
particular needs of each arrangement. For example, if the business 
partner is a two-person firm the contractual provisions regarding 
safeguards may focus on controlling physical access to a computer or 
file drawers, while a contract with a business partner with 500 
employees would address use of electronic technologies to provide 
security of electronic and paper records.
     Require the business partner to report to the covered 
entity any use or disclosure of the protected health information of 
which the business partner becomes aware that is not provided for in 
the contract.
     Require the business partner to ensure that any 
subcontractors or agents to whom it provides protected health 
information received from the covered entity will agree to the same 
restrictions and conditions that apply to the business partner with 
respect to such information.
     Establish how the covered entity would provide access to 
protected health information to the subject of that information, as 
would be required under Sec. 164.514, when the business partner has 
made any material alteration in the information. The covered entity and 
the business partner would determine in advance how the covered entity 
would know or could readily ascertain, when a particular individual's 
protected health information has been materially altered by the 
business partner, and how the covered entity could provide access to 
such information.
     Require the business partner to make available its 
internal practices, books and records relating to the use and 
disclosure of protected health information received from the covered 
entity to HHS or its agents for the purposes of enforcing the 
provisions of this rule.
     Establish how the covered entity would provide access to 
protected health information to the subject of that information, as 
would be required under Sec. 164.514, in circumstances where the 
business partner will hold the protected health information and the 
covered entity will not.
     Require the business partner to incorporate any amendments 
or corrections to protected health information when notified by the 
covered entity that the information is inaccurate or incomplete.
     At termination of the contract, require the business 
partner to return or destroy all protected health information received 
from the covered entity that the business partner still maintains in 
any form to the covered entity and prohibit the business partner from 
retaining such protected health information in any form.
     State that individuals who are the subject of the 
protected health information disclosed are intended to be third party 
beneficiaries of the contract.
     Authorize the covered entity to terminate the contract, if 
the covered entity determines that the business partner has repeatedly 
violated a term of the contract required by this paragraph.
    Each specified contract term above would be considered a separate 
implementation specification under this proposal for situations in 
which a

[[Page 59949]]

contract is required, and, as discussed below, a covered entity would 
be responsible for assuring that each such implementation standard is 
met by the business partner. See proposed Sec. 164.506(e)(2). The 
contract could include any additional arrangements that do not violate 
the provisions of this regulation.
    The contract requirement that we are proposing would permit covered 
entities to exercise control over their business partners' activities 
and provide documentation of the relationship between the parties, 
particularly the scope of the uses and disclosures of protected health 
information that business partners could make. The presence of a 
contract also would formalize the relationship, better ensuring that 
key questions such as security, scope of use and disclosure, and access 
by individuals are adequately addressed and that the roles of the 
respective parties are clarified. Finally, a contract can bind the 
business partner to return any protected health information from the 
covered entity when the relationship is terminated.
    In lieu of a contracting requirement, we considered imposing only 
affirmative duties on covered entities to ensure that their 
relationships with business partners conformed to the standards 
discussed in the previous paragraph. Such an approach could be 
considered less burdensome and restrictive, because we would be leaving 
it to the parties to determine how to make the standards effective. We 
rejected this approach primarily because we believe that in the vast 
majority of cases, the only way that the parties could establish a 
relationship with these terms would be through contract. We also 
determined that the value of making the terms explicit through a 
written contract would better enable the parties to know their roles 
and responsibilities, as well as better enable the Secretary to 
exercise her oversight role. In addition, we understand that most 
covered entities already enter into contracts in these situations and 
therefore this proposal would not disturb general business practice. We 
invite comment on whether there are other contractual or non-
contractual approaches that would afford an adequate level of 
protection to individuals' protected health information. We also invite 
comment on the specific provisions and terms of the proposed approach.
    We are proposing one exception to the contracting requirement: when 
a covered entity consults with or makes a referral to another covered 
entity for the treatment of an individual, we would propose that the 
sharing of protected health information pursuant to that consultation 
or referral not be subject to the contracting requirement described 
above. See proposed Sec. 164.506(e)(1)(i). Unlike most business partner 
relationships, which involve the systematic sharing of protected health 
information under a business relationship, consultation and referrals 
for treatment occur on a more informal basis among peers, and are 
specific to a particular individual. Such exchanges of information for 
treatment also appear to be less likely to raise concerns about further 
impermissible use or disclosure, because health care providers 
receiving such information are unlikely to have a commercial or other 
interest in using or disclosing the information. We invite comment on 
the appropriateness of this exception, and whether there are additional 
exceptions that should be included in the final regulation.
    We note that covered health care providers receiving protected 
health information for consultation or referral purposes would still be 
subject to this rule, and could not use or disclose such protected 
health information for a purpose other than the purpose for which it 
was received (i.e., the consultation or referral). Further, we note 
that providers making disclosures for consultations or referrals should 
be careful to inform the receiving provider of any special limitations 
or conditions to which the disclosing provider has agreed to impose 
(e.g., the disclosing provider has provided notice to its patients that 
it will not make disclosures for research).
    Under the system that we are proposing, business partners 
(including business partners that are covered entities) that have 
contracts with more than one covered entity would have no authority to 
combine, aggregate or otherwise use for a single purpose protected 
health information obtained from more than one covered entity unless 
doing so would have been a lawful use or disclosure for each of the 
covered entities that supplied the protected health information that is 
being combined, aggregated or used. In addition, the business partner 
must be authorized through the contract or arrangement with each 
covered entity that supplied the protected health information to 
combine or aggregate the information. For example, a business partner 
of a health plan would be permitted to disclose information to another 
health plan for coordination of benefits purposes, if such a disclosure 
were authorized by the business partner's contract with the covered 
entity that provided the protected health information. However, a 
business partner that is performing an audit of a group medical 
practice on behalf of several health plans could not combine protected 
health information that it had received from each of the plans, even if 
the business partner's contracts with the plans attempted to allow such 
activity, because the plans themselves would not be permitted to 
exchange protected health information for such a purpose. A covered 
entity would not be permitted to obtain protected health information 
through a business partner that it could not otherwise obtain itself.
    We further note that, as discussed above in section II.C.4, under 
our proposal a business partner generally could create a database of 
de-identified health information drawn from the protected health 
information of more than one covered entity with which it does 
business, and could use and disclose information and analyses from the 
database as they see fit, as long as there was no attempt to re-
identify the data to create protected health information. In the 
example from the preceding paragraph, the business partner could review 
the utilization patterns of a group medical practice on behalf of 
several groups of plans by establishing a data base of de-identified 
health information drawn from all of its contracts with covered 
entities and review the use patterns of all of the individuals in the 
data base who had been treated by the medical group. The results of the 
analyses could be used by or distributed to any person, subject to the 
limitation that the data could not be identified. We would caution that 
business partners releasing such information and analyses would need to 
ensure that they do not inadvertently disclose protected health 
information by releasing examples or discussing specific cases in such 
a way that the information could be identified by people receiving the 
analysis or report.
    c. Accountability. We are proposing that covered entities be 
accountable for the uses and disclosures of protected health 
information by their business partners. A covered entity would be in 
violation of this rule if the covered entity knew or reasonably should 
have known of a material breach of the contract by a business partner 
and it failed to take reasonable steps to cure the breach or terminate 
the contract. See proposed Sec. 164.506(e)(2)(iii). A covered entity 
that is aware of impermissible uses and disclosures by a business 
partner would be responsible for taking such steps as are necessary to 
prevent further improper use or disclosures and, to the extent 
practicable, for mitigating any harm caused by such violations.

[[Page 59950]]

This could include, for example, requiring the business partner to 
retrieve inappropriately disclosed information (even if the business 
partner must pay for it) as a condition of continuing to do business 
with the covered entity. A covered entity that knows or should know of 
impermissible use of protected health information by its business 
partner and fails to take reasonable steps to end the breach would be 
in violation of this rule.
    Where a covered entity acts as a business partner to another 
covered entity, the covered entity that is acting as business partner 
would also be responsible for any violations of the regulation.
    We considered requiring covered entities to terminate relationships 
with business partners if the business partner committed a serious 
breach of contact terms required by this subsection or if the business 
partner exhibited a pattern or practice of behavior that resulted in 
repeated breaches of such terms. We rejected that approach because of 
the substantial disruptions in business relationships and customer 
service when terminations occur. We instead require the covered entity 
to take reasonable steps to end the breach and mitigate its effects. We 
would expect covered entities to terminate the arrangement if it 
becomes clear that a business partner cannot be relied upon to maintain 
the privacy of protected health information provided to it. We invite 
comments on our approach here and whether requiring automatic 
termination of business partner contracts would be warranted in any 
circumstances.
    We also considered imposing more strict liability on covered 
entities for the actions of their business partners, just as principals 
are strictly liable for the actions of their agents under common law. 
We decided, however, that this could impose too great a burden on 
covered entities, particularly small providers. We are aware that, in 
some cases, the business partner will be larger and more sophisticated 
with respect to information handling than the covered entity. Therefore 
we instead opted to propose that covered entities monitor use of 
protected health information by business partners, and be held 
responsible only when they knew or reasonably should have known of 
improper use of protected health information.
    Our intention in this subsection is to recognize the myriad 
business relationships that currently exist and to ensure that when 
they involve the exchange of protected health information, the roles 
and responsibilities of the different parties with respect to the 
protected health information are clear. We do not propose to 
fundamentally alter the types of business relationships that exist in 
the health care industry or the manner in which they function. We 
request comments on the extent to which our proposal would disturb 
existing contractual or other arrangements among covered entities and 
business partners.
6. Application to Information About Deceased Persons  (Sec. 164.506(f))
    [Please label comments about this section with the subject: 
``Deceased persons'']
    We are proposing that information otherwise protected by these 
regulations retain that protection for two years after the death of the 
subject of the information. The only exception that we are proposing is 
for uses and disclosures for research purposes.
    HIPAA includes no temporal limitations on the application of the 
privacy protections. Although we have the authority to protect 
individually identifiable health information maintained by a covered 
entity indefinitely, we are proposing that the requirements of this 
rule generally apply for only a limited period, as discussed below. In 
traditional privacy law, privacy interests, in the sense of the right 
to control use or disclosure of information about oneself, cease at 
death. However, good arguments exist in favor both of protecting and 
not protecting information about the deceased. Considering that one of 
the underlying purposes of health information confidentiality is to 
encourage a person seeking treatment to be frank in the interest of 
obtaining care, there is good reason for protecting information even 
after death. Federal agencies and others sometimes withhold sensitive 
information, such as health information, to protect the privacy of 
surviving family members. At the same time, perpetual confidentiality 
has serious drawbacks. If information is needed for legitimate 
purposes, the consent of a living person legally authorized to grant 
such consent must be obtained, and the further from the date of death, 
the more difficult it may be to identify the person. The administrative 
burden of perpetual protection may eventually outweigh the privacy 
interests served.
    The proposed two-year period of confidentiality, with an exception 
for uses and disclosures for research purposes, would preserve dignity 
and respect by preventing uncontrolled disclosure of information 
immediately after death while allowing access to the information for 
proper purposes during this period and for any purpose thereafter. We 
would not subject the use or disclosure of protected health information 
of deceased individuals to the requirements in proposed Sec. 164.510(j) 
governing most uses and disclosures for research because we believe 
that it is important to remain as consistent as possible with the 
Common Rule. The Common Rule does not consider deceased persons to be 
``human subjects'' and therefore they have never been covered in the 
standard research protocol assessments conducted under the Common Rule. 
The Department of Health and Human Services will examine this issue in 
the context of an overall assessment of the Common Rule. Pending the 
outcome of this examination, we concluded that this exception was 
warranted so as not to interfere with standard research practice. We 
invite comments on whether the exception that we are proposing is 
necessary, or whether existing research using the protected health 
information of deceased individuals could proceed under the 
requirements of proposed Sec. 164.510(j).
    Under our proposal, and subject to the exceptions discussed above, 
the right to control the individual's health information within that 
two-year time period would be held by an executor or administrator, or 
in the absence of such an officer, by next-of-kin, as determined under 
applicable law, or in absence of both, by the holder of the health 
information. This is reflected in the proposed definition of 
``individual'' discussed above. The legally authorized representative 
would make decisions for the individual with regard to uses or 
disclosures of the information for purposes not related to treatment, 
payment or health care operations. Likewise, an authorized 
representative could exercise the individual rights of inspection, 
copying, amendment or correction under proposed Secs. 164.514 and 
164.516.
    Under our proposal, information holders could choose to keep 
information confidential for a longer period. These proposed rules also 
would not override any legally required prohibitions on disclosure for 
longer periods.
    One area of concern regarding the proposed two-year period of 
protection relates to information on individual genetic make-up or 
individual diseases and conditions that may be hereditary. Under the 
proposed rules, covered entities would be legally allowed to use such 
information or to disclose records to others, such as commercial 
collectors

[[Page 59951]]

of information, two years after the death of the individual. Since 
genetic information about one family member may reveal health 
information about other members of that family, the health data 
confidentiality of living relatives could be compromised by such uses 
or disclosures. Likewise, information regarding the hereditary diseases 
or conditions of the deceased person may reveal health information 
about living relatives. In the past, information that may not have been 
legally protected was de facto protected for most people because of the 
difficulty of its collection and aggregation. With the dramatic 
proliferation of large electronic databases of information about 
individuals, growing software-based intelligence, and the declining 
cost of linking information from disparate sources, such information 
could now be more readily and cost-effectively accessed.
    While various State laws have been passed specifically addressing 
privacy of genetic information, there is currently no federal 
legislation that deals with these issues. We considered extending the 
two-year period for genetic and hereditary information, but were unable 
to construct criteria for protecting the possible privacy interests of 
living children without creating extensive burden for information 
holders and hampering health research. We invite comments on whether 
further action is needed in this area and what types of practical 
provisions may be appropriate to protect genetic and hereditary health 
information.
7. Adherence to the Notice of Information Practices  (Sec. 164.506(g))
    [Please label comments about this section with the subject: 
``Adherence to notice'']
    In Sec. 164.506(g), we are proposing that covered plans and 
providers be required to adhere to the statements reflected in the 
notice of information practices that would be required under proposed 
Sec. 164.512. In binding covered plans and providers to their notices, 
we intend to create a system where open and accurate communication 
between entities and individuals would become necessary and routine. 
The corollary to this general rule is that the covered plan or provider 
would be permitted to modify its notice at any time.
    The information practices reflected in the most recent notice would 
apply to all protected health information regardless of when the 
information was collected. For example, if information was collected 
during a period when the notice stated that no disclosures would be 
made to researchers, and the covered plan or provider later decided 
that it wanted to disclose information to researchers, the entity would 
then need to revise its notice. The entity would be permitted to 
disclose all of the information in its custody to researchers as long 
as the notice is revised and re-distributed as provided below in 
Sec. 164.512. We considered permitting a covered entity to change its 
information practices only with respect to protected health information 
obtained after it revised its notice. Such a requirement would ensure 
individuals that the notice they received when they disclosed 
information to the covered entity would continue to apply to that 
information. We rejected that approach because compliance with such a 
standard would require covered entities to segregate or otherwise mark 
information to be based on the information practices that were in 
effect at different times. Such an approach would make covered entities 
extremely reluctant to revise the information practices, and otherwise 
would be extremely burdensome to administer.
    We are concerned that by requiring covered plans and providers to 
adhere to the practices reflected in their notice, we would encourage 
entities to create broad, general notices so that all possible uses, 
disclosures and other practices would be included. Such broad notices 
would not achieve the goals of open and accurate communication between 
entities and individuals. We welcome comments on this requirement and 
alternative proposals to achieve the same goals.
8. Application to Covered Entities That Are Components of Organizations 
That Are Not Covered Entities
    [Please label comments about this section with the subject: 
``Component entities'']
    In this section we describe how the provisions of this proposed 
rule apply to persons or organizations that provide health care or have 
created health plans but are primarily engaged in other unrelated 
activities. Examples of such organizations include schools that operate 
on-site clinics, employers who operate self-funded health plans, and 
information processing companies that include a health care services 
component. The health care component (whether or not separately 
incorporated) of the organization would be the covered entity. 
Therefore, any movement of protected health information into another 
component of the organization would be a ``disclosure,'' and would be 
lawful only if such disclosure would be authorized by this regulation. 
In addition, we propose to require such entities to create barriers to 
prevent protected health information from being used or disclosed for 
other activities not authorized or permitted under these proposed 
rules.
    For example, schools frequently employ school nurses or operate on-
site clinics. In doing so, the nurse or clinic component of the school 
would be acting as a provider, and must conform to this proposed rule. 
School clinics would be able to use protected health information 
obtained in an on-site clinic for treatment and payment purposes, but 
could not disclose it to the school for disciplinary purposes except as 
permitted by this rule. Similarly, an employee assistance program of an 
employer could meet the definition of ``provider,'' particularly if 
health care services are offered directly by the program. Protected 
health information obtained by the employee assistance program could be 
used for treatment and payment purposes, but not for other purposes 
such as hiring and firing, placement and promotions, except as may be 
permitted by this rule.

D. Uses and Disclosures With Individual Authorization  (Sec. 164.508)

    [Please label comments about this section With the subject: 
``Individual authorization'']
    This section addresses the requirements that we are proposing when 
protected health information is disclosed pursuant to the individual's 
explicit authorization. The regulation would require that covered 
entities have authorization from individuals before using or disclosing 
their protected health information for any purpose not otherwise 
recognized by this regulation. Circumstances where an individual's 
protected health information may be used or disclosed without 
authorization are discussed in connection with proposed Secs. 164.510 
and 164.522 below.
    This section proposes different conditions governing such 
authorizations in two situations in which individuals commonly 
authorize covered entities to disclose information:
     Where the individual initiates the authorization because 
he or she wants a covered entity to disclose his or her record, and
     Where a covered entity asks an individual to authorize it 
to disclose or use information for purposes other than treatment, 
payment or health care operations.
    In addition, this section proposes conditions where a covered 
entity or the individual initiates an authorization for use or 
disclosure of psychotherapy notes or research information unrelated

[[Page 59952]]

to treatment. See discussion above in section II.C.1.c.
    Individually identifiable health information is used for a vast 
array of purposes not directly related to providing or paying for an 
individual's health care. Examples of such uses include targeted 
marketing of new products and assessing the eligibility of an 
individual for certain public benefits or for commercial products based 
on their health status. Under these rules, these types of uses and 
disclosures could only be made by a covered entity with the specific 
authorization of the subject of the information. The requirements 
proposed in this section are not intended to interfere with normal uses 
and disclosures of information in the health care delivery or payment 
process, but only to permit control of uses extraneous to health care. 
The restrictions on disclosure that the regulation would apply to 
covered entities may mean that some existing uses and disclosures of 
information could take place only if the individual explicitly 
authorized them under this section.
    Authorization would be required for these uses and disclosures 
because individuals probably do not envision that the information they 
provide when getting health care would be disclosed for such unrelated 
purposes. Further, once a patient's protected health information is 
disclosed outside of the treatment and payment arena, it could be very 
difficult for the individual to determine what additional entities have 
seen, used and further disclosed the information. Requiring an 
authorization from the patient for such uses and disclosures would 
enhance individuals' control over their protected health information.
    We considered requiring a uniform set of requirements for all 
authorizations, but concluded that it would be appropriate to treat 
authorizations initiated by the individual differently from 
authorizations sought by covered entities. There are fundamental 
differences in the uses of information and in the relationships and 
understandings among the parties in these two situations. When 
individuals initiate authorizations, they are more likely to understand 
the purpose of the release and to benefit themselves from the use or 
disclosure. When a covered entity asks the individual to authorize 
disclosure, we believe the entity should make clear what the 
information will be used for, what the individual's rights are, and how 
the covered entity would benefit from the requested disclosure.
    Individuals seek disclosure of their health information to others 
in many circumstances, such as when applying for life or disability 
insurance, when government agencies conduct suitability investigations, 
and in seeking certain job assignments where health is relevant. 
Another common instance is tort litigation, where an individual's 
attorney needs individually identifiable health information to evaluate 
an injury claim and asks the individual to authorize disclosure of 
records relating to the injury to the attorney.
    There could also be circumstances where the covered entity asks an 
individual to authorize use or disclosure of information, for example 
to disclose it to a subsidiary to market life insurance to the 
individual. Similarly, the covered entity might ask that the individual 
authorize it to send information to a person outside that covered 
entity--possibly another covered entity or class of covered entity--for 
purposes outside of treatment, payment, or health care operations. See 
proposed Sec. 164.508(a)(2)(ii).
1. Requirements When the Individual Has Initiated the Authorization
    We are proposing several requirements that would have to be met in 
the authorization process when the individual has initiated the 
authorization.
    The authorization would have to include a description of the 
information to be used or disclosed with sufficient specificity to 
allow the covered entity to know to which information the authorization 
references. For example, the authorization could include a description 
of ``laboratory results from July 1998'' or ``all laboratory results'' 
or ``results of MRI performed in July 1998.'' The covered entity would 
then use or disclose that information and only that information. If the 
covered entity does not understand what information is covered by the 
authorization, the use or disclosure would not be permitted unless the 
covered entity were able to clarify the request.
    We are proposing no limitations on the information to be disclosed. 
If an individual wishes to authorize a covered entity to disclose his 
or her entire medical record, the authorization could so specify. But 
in order for the covered entity to disclose the entire medical record, 
the authorization would have be specific enough to ensure that 
individuals have a clear understanding of what information is to be 
disclosed under the circumstances. For example, if the Social Security 
Administration seeks authorization for release of all health 
information to facilitate the processing of benefit applications, then 
the description would need to specify ``all health information.''
    We would note that our proposal does not require a covered entity 
to disclose information pursuant to an individual's authorization. 
Therefore individuals may face reluctance on the part of covered 
entities that receive authorizations requiring them to classify and 
selectively disclose information when they do not benefit from the 
activity. Individuals would need to consider this when specifying the 
information in the authorization. Covered entities may respond to 
requests to analyze and separate information for selective disclosure 
by providing the entire record to the individual, who may then redact 
and release the information to others.
    We do not propose to require an authorization initiated by an 
individual to state a purpose. When the individual has initiated the 
authorization, the entity would not need to know why he or she wants 
the information disclosed. Ideally, anyone asking an individual to 
authorize release of individually identifiable health information would 
indicate the purpose and the intended uses. We are unable to impose 
requirements on the many entities that make such requests, and it would 
not be feasible to ask covered entities to make judgments about 
intended uses of records that are disclosed. In the absence of legal 
controls in this situation, the prudent individual would obtain a clear 
understanding of why the requester needs the information and how it 
would be used.
    We are proposing that the authorization would be required to 
identify sufficiently the covered entity or covered entities that would 
be authorized to use or disclose the protected health information by 
the authorization. Additionally, the authorization would be required to 
identify the person or persons that would be authorized to use or 
receive the protected health information with sufficient specificity to 
reasonably permit a covered entity responding to the authorization to 
identify the authorized user or recipient. When an authorization 
permits a class of covered entities to disclose information to an 
authorized person, each covered entity would need to know with 
reasonable certainty that the individual intended for it to release 
protected health information under the authorization.
    Often, individuals provide authorizations to third parties, who 
present them to one or more covered entities. For example, an 
authorization could be completed by an individual

[[Page 59953]]

and provided to a government agency, authorizing the agency to receive 
medical information from any health care provider that has treated the 
individual within a defined period. Such an authorization would be 
permissible (subject to the other requirements of this part) if it 
sufficiently identifies the government entity as the recipient of the 
disclosures and it sufficiently identifies the health care providers 
who would be authorized to release the individual's protected health 
information under the authorization.
    We are proposing that the authorization must state a specific 
expiration date. We considered providing an alternative way of 
describing the termination of the authorization, such as ``the 
conclusion of the clinical trial,'' or ``upon acceptance or denial of 
this application for life insurance'' (an ``event''), but we are 
concerned that covered entities could have difficulty implementing such 
an approach. We also considered proposing that if an expiration date 
were indicated on the authorization, it be no more than two or three 
years after the date of the signature. We are soliciting comment on 
whether an event can be a termination specification, and whether this 
proposed rule should permit covered entities to honor authorizations 
with ``unlimited'' or extremely lengthy expiration dates or limit it to 
a set term of years, such as two or three years.
    We are proposing that the authorization include a signature or 
other authentication (e.g., electronic signature) and the date of the 
signature. If the authorization is signed by an individual other than 
the subject of the information to be disclosed, that individual would 
have to indicate his or her authority or relationship with the subject.
    The authorization would also be required to include a statement 
that the individual understands that he or she may revoke an 
authorization except to the extent that action has been taken in 
reliance on the authorization.
    When an individual authorizes disclosure of health information to 
other than a covered entity, the information would no longer be 
protected under this regulation once it leaves the covered entity. 
Therefore, we propose that the authorization must clearly state that 
the individual understands that when the information is disclosed to 
anyone except a covered entity, it would no longer be protected under 
this regulation.
    We understand that the requirements that we are imposing here would 
make it quite unlikely that an individual could actually initiate a 
completed authorization, because few individuals would know to include 
all of these elements in a request for information. We understand that 
in most instances, individuals accomplish authorizations for release of 
health records by completing a form provided by another party, either 
the ultimate recipient of the records (who may have a form authorizing 
them to request the records from the record holders) or a health care 
provider or health plan holding the records (who may have a form that 
documents a request for the release of records to a third party). For 
this reason, we do not believe that our proposal would create 
substantial new burdens on individuals or covered entities in cases 
when an individual is initiating an authorized release of information. 
We invite comment on whether we are placing new burdens on individuals 
or covered entities. We also invite comment on whether the approach 
that we have proposed provides sufficient protection to individuals who 
seek to have their protected health information used or disclosed.
2. Requirements When the Covered Entity Initiates the Authorization
    We are proposing that when covered entities initiate the 
authorization by asking individuals to authorize disclosure, the 
authorization be required to include all of the items required above as 
well as several additional items. We are proposing additional 
requirements when covered entities initiate the request for 
authorization because in many cases it could be the covered entity, and 
not the individual, that achieves the primary benefit of the 
disclosure. We considered permitting covered entities to request 
authorizations with only the basic features proposed for authorizations 
initiated by the individual, for the sake of simplicity and 
consistency. However, we believe that additional protections would be 
merited when the entity that provides or pays for health care requests 
an authorizations to avert possible coercion.
    When a covered entity asks an individual to sign an authorization, 
we propose to require that it provide on the authorization a statement 
that identifies the purposes for which the information is sought as 
well as the proposed uses and disclosures of that information. The 
required statements of purpose would provide individuals with the facts 
they need to make an informed decision as to whether to allow release 
of the information. Covered entities and their business partners would 
be bound by the statements provided on the authorization, and use or 
disclosure by the covered entity inconsistent with the statement would 
constitute a violation of this regulation. We recognize that the 
covered entities cannot know or control uses and disclosures that will 
be made by persons who are not business partners to whom the 
information is properly disclosed. As discussed above, authorizations 
would need to notify individuals that when the information is disclosed 
to anyone except a covered entity, it would no longer be protected 
under this regulation.
    We propose to require that authorizations requested by covered 
entities be narrowly tailored to authorize use or disclosure of only 
the protected health information necessary to accomplish the purpose 
specified in the authorization. The request would be subject to the 
minimum necessary requirement as discussed in section II.C.2. We would 
prohibit the use of broad or blanket authorizations requesting the use 
or disclosure of protected health information for a wide range of 
purposes. Both the information that would be used or disclosed and the 
specific purposes for such uses or disclosures would need to be 
specified in the notice.
    We are proposing that when covered entities ask individuals to 
authorize use or disclosure for purposes other than for treatment, 
payment, or health care operations, they be required to advise 
individuals that they may inspect or copy the information to be used or 
disclosed as provided in proposed Sec. 164.514, that they may refuse to 
sign the authorization, and that treatment and payment could not be 
conditioned on the patient's authorization. For example, a request for 
authorization to use or disclose protected health information for 
marketing purposes would need to clearly state that the individual's 
decision would have no influence on his or her health care treatment or 
payment. In addition, we are proposing that when a covered entity 
requests an authorization, it must provide the individual with a copy 
of the signed authorization form.
    Finally, we are proposing that when the covered entity initiates 
the authorization and the covered entity would be receiving financial 
or in-kind compensation in exchange for using or disclosing the health 
information, the authorization would include a statement that the 
disclosure would result in commercial gain to the covered entity. For 
example, a health plan may wish to sell or rent its enrollee mailing 
list. A pharmaceutical company may offer a provider a discount on its 
products if

[[Page 59954]]

the provider can obtain authorization to disclose the demographic 
information of patients with certain diagnoses so that the company can 
market new drugs to them directly. A pharmaceutical company could pay a 
pharmacy to send marketing information to individuals on its behalf. 
Each such case would require a statement that the requesting entity 
will gain financially from the disclosure.
    We considered requiring a contract between the provider and the 
pharmaceutical company in this type of arrangement, because such a 
contract could enhance protections and enforcement options against 
entities who violate these rules. A contract also would provide covered 
entities a basis to enforce any limits on further use or disclosures by 
authorized recipients. Although we are not proposing this approach now, 
we are soliciting comment on how best to protect the interests of the 
patient when the authorization for use or disclosure would result in 
commercial gain to the covered entity.
3. Model Forms
    Covered entities and third parties that wish to have information 
disclosed to them would need to prepare forms for individuals to use to 
authorize use or disclosure. A model authorization form is displayed in 
Appendix to this proposed rule. We considered presenting separate model 
forms for the two different types of authorizations (initiated by the 
individual and not initiated by the individual). However, this approach 
could be subject to misuse and be confusing to covered entities and 
individuals, who may be unclear as to which form is appropriate in 
specific situations. The model in the appendix accordingly is a unitary 
model, which includes all of the requirements for both types of 
authorization.
4. Plain Language Requirement
    We are proposing that all authorizations must be written in plain 
language. If individuals cannot understand the authorization they may 
not understand the results of signing the authorization or their right 
to refuse to sign. See section II.F.1 for more discussion of the plain 
language requirement.
5. Prohibition on Conditioning Treatment or Payment
    We propose that covered entities be prohibited, except in the case 
of clinical trial as described below, from conditioning treatment or 
payment for health care on obtaining an authorization for purposes 
other than treatment, payment or health care operations. This is 
intended to prevent covered plans and providers from coercing 
individuals into signing an authorization for a disclosure that is not 
necessary for treatment, payment or health care operations. For 
example, a provider could not refuse to treat an individual because the 
individual refused to authorize a disclosure to a pharmaceutical 
manufacturer for the purpose of marketing a new product.
    We propose one exception to this provision: health care providers 
would be permitted to condition treatment provided as part of a 
clinical trial on obtaining an authorization from the individual that 
his or her protected health information could be used or disclosed for 
research associated with such clinical trial. Permitting use of 
protected health information is part of the decision to receive care 
through a clinical trial, and health care providers conducting such 
trials should be able to condition participation in the trial on the 
individual's willingness to authorize that his or her protected health 
information be used or disclosed for research associated with the 
trial. We note that the uses and disclosures would be subject to the 
requirements of Sec. 164.510(j) below.
    Under the proposal, a covered entity would not be permitted to 
obtain an authorization for use or disclosure of information for 
treatment, payment or health care operations unless required by 
applicable law. Where such an authorization is required by law, 
however, it could not be combined in the same document with an 
individual authorization to use or disclosure of protected health 
information for any purpose other than treatment, payment or health 
care operations (e.g., research). We would require that a separate 
document be used to obtain any other individual authorizations to make 
it clear to the individual that providing an authorization for such 
other purpose is not a condition of receiving treatment or payment.
6. Inclusion in the Accounting and Disclosures
    As discussed in section II.H.6, we propose that covered entities be 
required to keep a record of all disclosures for purposes other than 
treatment, payment or health care operations, including those made 
pursuant to authorization. In addition, we propose that when an 
individual requests such an accounting or requests a copy of a signed 
authorization form, the covered entity must give a copy to the 
individual. See proposed Sec. 164.515.
7. Revocation of an Authorization by the Individual
    We are proposing that an individual be permitted to revoke an 
authorization at any time except to the extent that action has been 
taken in reliance on the authorization. See proposed Sec. 164.508(e). 
That is, an individual could change her or his mind about an 
authorization and cancel it, except that she or he could not thereby 
prevent the use or disclosure of information if the recipient has 
already acted in reliance on the authorization. For example, an 
individual might cancel her or his authorization to receive future 
advertisements, but the entity may be unable to prevent mailing of the 
advertisements that the covered entity or third party has already 
prepared but not yet mailed.
    An individual would revoke the old authorization and sign a new 
authorization when she or he wishes to change any of the information in 
the original authorization. Upon receipt of the revocation, the covered 
entity would need to stop processing the information for use or 
disclosure to the greatest extent practicable.
8. Expired, Deficient, or False Authorization
    The model authorization form or a document that includes the 
elements set out at proposed Sec. 164.508 would meet the requirements 
of this proposed rule and would have to be accepted by the covered 
entity. Under Sec. 164.508(b), there would be no ``authorization'' 
within the meaning of the rules proposed below if the submitted 
document has any of the following defects:
     The date has expired;
     On its face it substantially fails to conform to any of 
the requirements set out in proposed Sec. 164.508, because it lacks an 
element;
     It has not been filled out completely. Covered entities 
may not rely on a blank or incomplete authorization;
     The authorization is known to have been revoked; or
     The information on the form is known by the person holding 
the records to be materially false.
    We understand that it would be difficult for a covered entity to 
confirm the identity of the person who signed the authorization. We 
invite comment on reasonable steps that a covered entity could take to 
be assured that the individual who requests the disclosure is whom she 
or he purports to be.

[[Page 59955]]

E. Uses and Disclosures Permitted Without Individual Authorization  
(Sec. 164.510)

    [Please label comments about this section with the subject: 
``Introduction to uses and disclosures without individual 
authorization'']
    This section describes uses and disclosures of protected health 
information that covered entities could make for purposes other than 
treatment, payment, and health care operations without individual 
authorization, and the conditions under which such uses and disclosures 
could be made. We propose to allow covered entities to use or disclose 
protected health information without individual authorization for such 
purposes if the use or disclosure would comply with the applicable 
requirements of this section.
    These categories of allowable uses and disclosures are designed to 
permit and promote key national health care priorities, and to ensure 
that the health care system operates smoothly. For each of these 
categories, this rule would permit--but not require--the covered entity 
to use or disclose protected health information without the 
individual's authorization. Some covered entities could conclude that 
the records they hold, or portions of them, should not be used or 
disclosed for one or more of these permitted purposes without 
individuals' authorization (absent a law mandating such disclosure), 
even under the conditions imposed here. The proposed regulation is 
intended to reflect the importance of safeguarding individuals' 
confidentiality, while also enabling important national priority 
activities that require protected health information.
    We considered permitting uses and disclosures only where law 
affirmatively requires the covered entity to use or disclose protected 
health information. However, because the activities described below are 
so important to the population as a whole, we decided to permit a 
covered entity to use or disclose information to promote those 
activities even when such activities are not legally mandated. In some 
cases, however, we would permit a use or disclosure only when such use 
or disclosure is authorized by other law. The requirements for 
verification of legal authority are discussed in each relevant section.
    Where another law forbids the use or disclosure of protected health 
information without the individual's authorization, nothing in this 
section would permit such use or disclosure.
    Other law may require use or disclosure of protected health 
information. If such a use or disclosure is not otherwise addressed in 
proposed Sec. 164.510(b) through (m), we would in proposed 
Sec. 164.510(n) permit covered entities to use or disclose protected 
health information without individual authorization pursuant to any law 
that mandates such use or disclosure. To be in compliance with this 
rule, the covered entity must meet the requirements of such other law 
requiring the use or disclosure. Similarly, nothing in this rule would 
provide authority for a covered entity to restrict or refuse to make a 
use or disclosure mandated by other law.
    The HIPAA legislative authority generally does not bring the 
entities that receive disclosures pursuant to this section, including 
public health authorities, oversight and law enforcement agencies, 
researchers, and attorneys, under the jurisdiction of this proposed 
rule. We therefore generally cannot propose restrictions on the further 
use and disclosure of protected health information obtained by the 
recipients of these disclosures (unless the recipient is also a covered 
entity). We believe, however, that in most instances it is sound policy 
to restrict further uses and disclosures of such protected health 
information. For example, the Secretary's Recommendations proposed that 
protected health information obtained by researchers not be further 
disclosed except for emergency circumstances, for a research project 
that meets certain conditions, and for oversight of research. We 
believe that federal legislation should include appropriate 
restrictions on further use and disclosure of protected health 
information received by entities for purposes such as those described 
in this section. We note that, under S.578 (introduced by Senator 
Jeffords), protected health information disclosed for oversight could 
not be used against the subject of the protected health information 
unless the action arises out of and is directly related to a health 
care fraud or a fraudulent claim for benefits, unless such use is 
judicially authorized. We believe such safeguards strike the right 
balance between encouraging national priority oversight activities and 
protecting individuals' privacy.
    The provisions of this section contain requirements related to use 
and requirements related to disclosure, as appropriate to each of the 
purposes discussed. For many of these purposes, only requirements 
relating to disclosure are proposed because there are no appropriate 
internal uses for such a purpose. Examples include disclosures for 
next-of-kin and disclosures for banking and financial purposes.
    For many of these permitted disclosures, we would require the 
covered entity to verify the identity of the requestor and his or her 
legal authority to make the request. Requirements for verifying the 
identity and authority of requests for information are further 
discussed in II.G, ``Administrative Requirements.'' As discussed in 
more detail in section II.G.3. of this preamble, the verification 
requirement would apply where the identity of the person making the 
request is not already known to the covered entity (e.g., where the 
disclosure is not part of a routine business transaction). We would ask 
health plans and health care providers to take reasonable steps to 
verify the identity of persons requesting protected health information, 
such as asking to see a badge or other proof of the identity of 
government officials, and would allow covered entities to rely on the 
statement of government officials and others regarding the legal 
authority for the activity. We would not require covered entities to 
make an independent inquiry into the legal authority behind requests 
for protected health information.
    The provisions below would permit covered entities to use or 
disclose protected health information without individual authorization, 
pursuant to certain requirements. Although health care clearinghouses 
would be defined as covered entities under this rule, in most instances 
clearinghouses will be receiving and maintaining protected health 
information as the business partner of a covered health plan or 
provider. In such cases, proposed Sec. 164.510(a)(2) provides that the 
clearinghouses that hold protected health information as business 
partners would not be permitted to make uses or disclosures otherwise 
permitted by this section unless such uses or disclosures also were 
permitted under the terms of the contract between the clearinghouse and 
the business partner.
1. Uses and Disclosures for Public Health Activities  (Sec. 164.510(b))
[Please label comments about this section with the subject: ``Public 
health'']
    We propose to permit covered entities to disclose protected health 
information without individual authorization to public health 
authorities carrying out public health activities authorized by law, to 
non-governmental entities authorized by law to carry out public health 
activities, and to persons who may be at risk of contracting or 
spreading a disease (when other law

[[Page 59956]]

authorizes notification). Where the covered entity also is a public 
health agency, such as a public hospital or local health department, it 
would be permitted to use protected health information in all cases in 
which it would be permitted to disclose such information for public 
health activities under this section.
    a. Importance of public health and need for protected health 
information. Public health authorities are responsible for promoting 
health and quality of life by preventing and controlling disease, 
injury, and disability. Inherent in the collection of information for 
public health activities is a balancing of individual versus communal 
interests. While the individual has an interest in maintaining the 
privacy of his or her health information, public health authorities 
have an interest in the overall health and well-being of the entire 
population of their jurisdictions. To accomplish this, public health 
authorities engage in a number of activities, including: traditional 
public health surveillance; investigations and interventions with 
respect to communicable diseases; registries (such as immunization or 
cancer registries); programs to combat diseases that involve contacting 
infected persons and providing treatment; and actions to prevent 
transmission of serious communicable diseases.
    Public health activities also include regulatory investigations and 
interventions such as pre-market review of medical products, and 
evaluations of the risk-benefit profile of a drug or medical product 
before and after approval (relying on critical epidemiological 
techniques and resources such as HMO claims databases and medical 
records). Public health agencies use the results of analyses to make 
important labeling changes and take other actions, such as the removal 
of non-compliant products from the market.
    We considered requiring individual authorization for certain public 
health disclosures, but rejected this approach because many important 
public health activities would not be possible if individual 
authorization were required. In the case of contagious diseases, for 
example, if individual authorization were required before individually 
identifiable information could be provided to public health workers, 
many other people who may be harboring contagious diseases may be 
missed by efforts to halt the spread of disease because they failed to 
provide the appropriate individual authorization. Their failure to 
authorize could place the general population at risk for contracting an 
infectious disease. Furthermore, always requiring individual 
authorization to disclose protected health information to public health 
authorities would be impractical due to the number of reports and the 
variety of sources from which they are made. If individuals were 
permitted to opt out from having their information included in these 
public health systems, the number of persons with a particular 
condition would be undercounted. Furthermore, the persons who did 
authorize the inclusion of their information in the system might not be 
representative of all persons with the disease or condition.
    We also considered limiting certain public health disclosures to 
de-identified health information. However, identifiable information 
could be required in order to track trends in a disease over time, and 
to assess the safety of medical treatments. While de-identified 
information could be appropriate for many public health activities, 
there are also many public health activities that require individual 
identifiers. We decided not to attempt to define specific public health 
activities for which only de-identified information could be disclosed, 
in part because public health data collection requirements would be 
better addressed in public health laws, and in part to reflect the 
variation in information technologies available to public health 
authorities. Instead, we rely on the judgment of public health 
authorities as to what information would be necessary for a public 
health activity. See discussion in section II.C.2.
    b. Public health activities. We intend a broad reading of the term 
``public health activities'' to include the prevention or control of 
disease, injury, or disability. We considered whether to propose a 
narrow or broad scope of public health activities for which disclosure 
without individual authorization would be permitted. For the reasons 
described above, we believe that both the general public and individual 
interests are best served by a broad approach to public health 
disclosures.
    We therefore propose that covered entities be permitted to disclose 
protected health information to public health authorities for the full 
range of public health activities described above, including reporting 
of diseases, injuries, and conditions, reporting of vital events such 
as birth and death to vital statistics agencies, and a variety of 
activities broadly covered by the terms public health surveillance, 
public health investigation, and public health intervention. These 
would include public health activities undertaken by the FDA to 
evaluate and monitor the safety of food, drugs, medical devices, and 
other products. These terms would be intended to cover the spectrum of 
public health activities carried out by federal, State, and local 
public health authorities. The actual authorities and terminology used 
for public health activities will vary under different jurisdictions. 
We do not intend to disturb or limit current public health activities.
    c. Permitted recipients of disclosures for public health 
activities. Disclosures without individual authorization for public 
health activities would be permitted to be made to only three types of 
persons: public health authorities, non-governmental entities 
authorized by law to carry out public health activities, and persons 
who may be at risk of contracting or spreading a disease, if other law 
authorizes notification.
    i. Public health authorities.
    We propose to define ``public health authority'' broadly, based on 
the function being carried out, not the title of the public entity. 
Therefore, disclosures under this proposed rule would not be limited to 
traditional public health entities such as State health departments. 
Other government agencies and entities carry out public health 
activities in the course of their missions. For example, the 
Occupational Safety and Health Administration, the Mine Safety and 
Health Administration, and the National Institute for Occupational 
Safety and Health conduct public health investigations related to 
occupational health and safety. The National Transportation Safety 
Board investigates airplane and train crashes in an effort to reduce 
mortality and injury by making recommendations for safety improvements. 
Similar inquiries are conducted by the military services. The Food and 
Drug Administration reviews product performance prior to marketing, and 
investigates adverse events reported after marketing by industries, 
health professionals, consumers, and others. The Environmental 
Protection Agency investigates the effects of environmental factors on 
health. The definition of public health authority reflects the need for 
access to data and information including protected health information 
by these other agencies and authorities consistent with their official 
mandates under applicable law.
    ii. Non-governmental entities carrying out public health 
activities.
    The proposed rule would further provide that disclosures may be 
made not only to government agencies, but also to other public and 
private entities

[[Page 59957]]

as otherwise required or authorized by law. For example, this would 
include tracking medical devices, where the initial disclosure is not 
to a government agency, but to a device manufacturer that collects 
information under explicit legal authority, or at the direction of the 
Food and Drug Administration. Also, the cancer registries mentioned 
above could be operated by non-profit organizations such as 
universities funded by public health authorities which receive reports 
from physicians and laboratories pursuant to State statutory 
requirements to report.
    We considered limiting public health disclosures to only government 
entities, but the reality of current public health practice is that a 
variety of activities are conducted by public health authorities in 
collaboration with non-governmental entities. Federal agencies also use 
a variety of mechanisms including contracts, grants, cooperative 
agreements, and other agreements such as memoranda of understanding to 
carry out and support public health activities. These relationships 
could be based on specific or general legal authorities. It is not our 
intent to disturb these relationships. Limiting the ability to 
collaborate with other entities and designate them to receive protected 
health information, could potentially have an adverse impact on public 
health practice.
    iii. Persons who may be at risk of contracting or spreading a 
disease.
    The proposed rule would allow disclosure to a person who could have 
been exposed to a communicable disease or may otherwise be at risk of 
contracting or spreading a disease or condition and is authorized by 
law to be notified as necessary in the conduct of a public health 
intervention or investigation. Physicians, in carrying out public 
health interventions authorized by law, can notify persons who have 
been exposed to a communicable disease, or who otherwise may be at risk 
of contracting or spreading a disease or condition. That notification 
may implicitly or explicitly reveal the identity of the individual with 
the disease to which the person could have been exposed, but should be 
permitted as a disclosure in the course of a legally authorized public 
health intervention or investigation. The proposed rule would not (and, 
under the HIPAA legislative authority, cannot) impose a confidentiality 
obligation on the person notified.
    d. Additional requirements. Under proposed Sec. 164.518(c), covered 
entities would have to verify the identity of the person requesting 
protected health information and the legal authority supporting that 
request, before the disclosure would be permitted under this 
subsection. Preamble section II.G.3 describes these requirements in 
more detail.
    We note that to the extent that the public health authority is 
providing treatment as defined in proposed Sec. 164.504, the public 
health authority would be a covered health care provider for purposes 
of that treatment, and would be required to comply with this 
regulation.
    We also note that the preemption provision of the HIPAA statute 
creates a special rule for a subset of public health disclosures: this 
regulation cannot preempt State law regarding ``public health 
surveillance, or public health investigation or intervention * * *''.
2. Use and Disclosure for Health Oversight Activities.  
(Sec. 164.510(c))
[Please label comments about this section with the subject: ``Health 
oversight'']
    In section Sec. 164.510(c), we propose to allow covered entities to 
disclose protected health information to public oversight agencies (and 
to private entities acting on behalf of such agencies) without 
individual authorization, for health oversight activities authorized by 
law. In cases in which a covered entity is also an oversight agency, it 
would be permitted to use protected health information in all cases in 
which it would be permitted to disclose such information for health 
oversight activities under this section.
    a. Importance of oversight and need for protected health 
information. Oversight activities are critical to support national 
priorities, including combating fraud in the health care industry, 
ensuring nondiscrimination, and improving the quality of care. The 
goals of public agencies' oversight activities are: to monitor the 
fiscal and programmatic integrity of health programs and of government 
benefit programs; to ensure that payments or other benefits of these 
programs are being provided properly; to safeguard health care quality; 
to monitor the safety and efficacy of medical products; and to ensure 
compliance with statutes, regulations, and other administrative 
requirements applicable to public programs and to health care delivery.
    Oversight activities are a national priority in part because of the 
losses in the healthcare system due to error and abuse. For example, 
the HHS Office of Inspector General recently estimated losses due to 
improper Medicare benefit payments to be about seven percent. See 
``Improper Fiscal Year 1998 Medicare Fee-For Service-Payments,'' 
transmittal from Inspector General June Gibbs Brown to HCFA 
Administrator Nancy-Ann Min DeParle (February 9, 1999). Similarly, the 
final report of the President's Advisory Commission on Consumer 
Protection and Quality in the Health Care Industry concluded that 
``employing the extensive knowledge and expertise of organizations that 
oversee health care quality * * * is essential to quality 
improvement.'' (http://www.hcqualitycommission.gov/final/chap09.html)
    There are certain oversight activities done as statistical 
inquiries that can be conducted without direct access to individually 
identifiable health information. However, many instances exist in which 
government oversight agencies, and private entities under contracting 
to act on their behalf, need to examine individually identifiable 
health information to conduct their investigations effectively. For 
example, to determine whether a hospital has engaged in fraudulent 
billing practices, it could be necessary to examine billing records for 
a set of individual cases. Billing abuses are detected by cross-
checking the records of specific patients to see the medical 
documentation in support of a service. To determine whether a health 
plan is complying with federal or State health care quality standards, 
it may be necessary to examine individually identifiable health 
information. Other inquiries require review of individually 
identifiable health information to identify specific instances of the 
anomalies in treatment or billing patterns detected in statistical 
analysis. Even in most statistical inquiries of the type just 
described, in a paper environment particular patient charts must be 
examined, and the patient's name would be disclosed because it would be 
on each page of the chart.
    b. Proposed requirements. Specifically, we would permit covered 
entities to disclose protected health information without individual 
authorization to a health oversight agency to conduct oversight 
activities authorized by law. Disclosures also could be made to private 
entities working under a contract with or grant of authority from one 
or more of the government oversight agencies described above. As 
discussed below, oversight activities by private entities operating 
pursuant to contracts with covered entities, such as accreditation 
organizations, would not be permitted to receive information under this 
provision, even if accreditation by such an organization is recognized 
by law as fulfilling a government requirement or

[[Page 59958]]

condition of participation in a government program (often referred to 
as ``deemed status'').
    Under our rule, oversight activities would include conducting or 
supervising the following activities: Audits; investigations; 
inspections; civil, criminal or administrative proceedings or actions; 
and other activities necessary for appropriate oversight of the health 
care system, of government benefit programs for which health 
information is relevant to beneficiary eligibility, and of government 
regulatory programs for which health information is necessary for 
determining compliance with program standards. This regulation does not 
create any new right of access to health records by oversight agencies, 
and could not be used as authority to obtain records not otherwise 
legally available to the oversight agency.
    Under our rule, a health oversight agency would be defined as a 
public agency authorized by law to conduct oversight activities 
relating to the health care system, a government program for which 
health information is relevant to determining beneficiary eligibility 
or a government regulatory program for which health information is 
necessary for determining compliance with program standards. Examples 
of agencies in the first category would include State insurance 
commissions, State health professional licensure agencies, Offices of 
Inspectors General of federal agencies, the Department of Justice, 
State Medicaid fraud control units, Defense Criminal Investigative 
Services, the Pension and Welfare Benefit Administration, the HHS 
Office for Civil Rights, and the FDA. Examples of agencies in the 
second category include the Social Security Administration and the 
Department of Education. Examples of agencies in the third category 
include the workplace safety programs such as the Occupational Health 
and Safety Administration and the Environmental Protection Agency. 
Agencies that conduct both oversight and law enforcement activities 
would be subject to this provision when conducting oversight 
activities.
    In cases where health oversight agencies are working in tandem with 
other agencies overseeing public benefit programs to address 
compliance, fraud, or other integrity issues that could span across 
programs, the oversight activities of the team would be considered 
health oversight and disclosure to and among team members would be 
permitted under the proposed rule to the extent permitted under other 
law. For example, a fraud investigation could attempt to find a pattern 
of abuse across related programs, such as Medicaid and the supplemental 
security income program. Protected health information could be 
disclosed to the team of oversight agencies and could be shared among 
such agencies for oversight activities.
    Public oversight agencies sometimes contract with private entities 
to conduct program integrity activities on a public agency's behalf. 
Such audits or investigations may include, for example, program 
integrity reviews of fraud and abuse in billing Federal and State 
health care programs; investigations conducted in response to consumer 
complaints regarding the quality or accessibility of a particular 
provider, health plan, or facility; and investigations related to 
disciplinary action against a health care provider, health plan, or 
health care facility. Covered entities may disclose protected health 
information to these agents to the extent such disclosure would be 
permitted to the public oversight body.
    In many cases today, public agencies' contracts with private 
entities conducting investigations on their behalf require the private 
oversight organization to implement safeguards to protect individual 
privacy. HIPAA does not provide statutory authority to regulate the 
contracts between public oversight entities and their agents. However, 
we encourage public oversight entities to include privacy safeguards in 
all such contracts, and believe it would be appropriate for federal 
legislation to impose such safeguards.
    In developing our proposal, we considered but rejected the option 
of providing an exemption from the general rules for situations in 
which a covered entity has a contract with a private accreditation 
organization to conduct an accreditation inspection. In such instances, 
the accreditation organization is performing a service for the covered 
entity much like any other contractor. The situation is not materially 
different in instances where accreditation from a private organization 
would have the effect of ``deeming'' the covered entity to be in 
compliance with a government standard or condition of participation in 
a government program. In both cases, the accreditation organization is 
performing a service for the covered entity, not for the government. In 
our considerations, we were unable to identify a reason that covered 
entities should hold these contractors to lesser standards than their 
other contractors. Individuals' privacy interests would not be 
diminished in this situation, nor is there any reason why such 
accreditation organizations should not be held to the requirements 
described above for business partners. Proposed rules for disclosure to 
these entities are discussed in section II.C.5., ``Application to 
business partners.'' We invite comment on our proposed approach.
    c. Additional considerations. We do not propose any new 
administrative or judicial process prior to disclosure. This regulation 
would permit disclosure of protected health information without 
compulsory process where such disclosure is otherwise allowed. However, 
this regulation also would not abrogate or modify other statutory 
requirements for administrative or judicial determinations or for other 
procedural safeguards, nor would it permit disclosures forbidden by 
other law.
    Under this Sec. 164.518(c), covered entities would have an 
obligation to verify the identity of the person requesting protected 
health information and the legal authority behind the request before 
the disclosure would be permitted under this subsection. Preamble 
section II.G.3. describes these requirements in more detail.
3. Use and Disclosure for Judicial and Administrative Proceedings  
(Sec. 164.510(d))
    [Please label comments about this section with the subject: 
``Judicial and administrative proceedings'']
    In Sec. 164.510(d), we propose to permit covered entities to 
disclose protected health information in a judicial or administrative 
proceeding if the request for such protected health information is made 
through or pursuant to an order by a court or administrative tribunal. 
A court order would not be required if the protected health information 
being requested relates to a party to the proceeding whose health 
condition is at issue, or if the disclosure would otherwise be 
permitted under this rule. A covered entity that also is a government 
entity would be permitted to use protected health information in a 
judicial or administrative proceeding under the same conditions that it 
could make a disclosure of protected health information under this 
paragraph.
    a. Importance of judicial and administrative process and the need 
for protected health information. Protected health information is often 
needed as part of an administrative or judicial proceeding. Examples of 
such proceedings would include personal injury or medical malpractice 
cases or other lawsuits in which the medical condition of a person is 
at issue, and judicial or administrative proceedings to determine 
whether an illness or injury was caused by workplace conditions or

[[Page 59959]]

exposure to environmental toxins. The information may be sought well 
before a trial or hearing, to permit the party to discover the 
existence or nature of testimony or physical evidence, or in 
conjunction with the trial or hearing, in order to obtain the 
presentation of testimony or other evidence. These uses of health 
information are clearly necessary to allow the smooth functioning of 
the legal system. Requiring the authorization of the subject prior to 
disclosure could mean that crucial information would not be available, 
and could be unfair to persons who have been wronged.
    b. Proposed requirements. We propose to permit covered entities to 
disclose protected health information in a judicial or administrative 
proceeding if the request for such protected health information is made 
through or pursuant to a court order or an order by an administrative 
law judge specifically authorizing the disclosure of protected health 
information. The exception to this requirement is where the protected 
health information being requested relates to a party to the proceeding 
whose health condition is at issue, and where the disclosure is made 
pursuant to lawful process (e.g., a discover order) or is otherwise 
authorized by law. We note that this would not apply where the 
disclosure would otherwise be permitted under this rule.
    The proposed provisions of this section are intended to apply to 
the broad spectrum of judicial and administrative procedures by which 
litigants, government agencies, and others request information for 
judicial or administrative proceedings, including judicial subpoenas, 
subpoenas duces tecum, notices of deposition, interrogatories, 
administrative subpoenas, and any disclosure pursuant to the Federal 
Rules of Civil Procedures, the Federal Rules of Criminal Procedures, 
comparable rules of other courts (including State, tribunal, or 
territorial courts) and comparable rules of administrative agencies. 
Under the rule, a covered entity could not respond to such requests 
unless they determined that the request is pursuant to a court order 
authorizing disclosure of protected health information or if the 
individual who is the subject of the protected health information is a 
party to the proceeding and his or her medical condition or history is 
at issue.
    Covered entities generally would not be required to conduct any 
independent investigation of the legality of the process under which 
the protected health information is being sought, but would need to 
review the request protected health information to ensure that the 
disclosure would meet the terms of this provision. Where the request is 
accompanied by an order from a court, the covered entity could rely on 
a statement in the order authorizing disclosure of protected health 
information. The statement could be a general one, indicating that 
protected health information is relevant to the matter, or it could 
identify specifically what protected health information may be 
disclosed. The covered entity could rely on either type of statement, 
but it could not disclose more information than was authorized by the 
court where the scope of the authorized disclosure is clear.
    Where the request is not accompanied by a court order or order from 
an administrative law judge, the covered entity would be required to 
determine whether the request relates to the protected health 
information of a litigant whose health is at issue, a written statement 
from the requester certifying that the protected health information 
being requested is about a litigant to the proceeding and that the 
health condition of such litigant is at issue at such proceeding. Such 
a certification could be from the agency requesting the information 
(e.g., in an administrative proceeding) or from legal counsel 
representing a party to litigation. We invite comments on whether this 
requirement is overly burdensome and on whether it is sufficient to 
protect protected health information from unwarranted disclosures.
    We are not proposing to preclude a covered entity from contesting 
the nature or scope of the process when the procedural rules governing 
the proceeding so allow and covered entities could well choose to 
assert privileges against disclosure on behalf of individuals.
    In developing our proposal, we considered permitting covered 
entities to disclose protected health information pursuant to any 
request made in conjunction with a judicial or administrative 
proceeding. We rejected this option because we believe that current 
procedures for document production could result in unwarranted 
disclosure of protected health information. Under current practice, 
requests for documents are developed by the parties to a proceeding, 
with little review or oversight unless the request is challenged by the 
opposing party. In many instances, the parties make very broad 
discovery requests that result in the production of large numbers of 
documents for review. Recipients of broad motions for document 
production often provide the requester with a substantial quantity of 
material, expecting the requester to page through the documents to 
identify the ones that are relevant to the proceeding. While such a 
process may be appropriate for many types of records, we are concerned 
that it could lead to substantial breaches of privacy where the 
material being requested is protected health information. We are unsure 
if it is appropriate for private attorneys, government officials and 
others who develop such requests to be able to circumvent the 
protections provided by this rule with simple motions for document 
production that have not been subject to third-party review.
    Under our proposal, therefore, a party to a proceeding that wishes 
production of information that includes protected health information 
would generally need to seek judicial review of the request. If a court 
determines that a request for protected health information is 
appropriate to the proceeding, a covered entity can produce the 
protected health information pursuant to an otherwise lawful request.
    We propose an exception to the general requirement for judicial 
review for protected health information for instances in which the 
protected health information of a party to the proceeding is relevant 
to the proceeding. In such instances, the party will have counsel who 
can object to an overly broad or unwarranted discovery of the party's 
protected health information or will receive the discovery request 
directly and, again, will have an opportunity to object prior to 
disclosure.
    We note that there are other existing legal requirements governing 
the disclosure of protected health information, and which govern the 
procedures in federal, State and other judicial and administrative 
proceedings. For example, 42 U.S.C. 290dd-2 and the implementing 
regulations, 42 CFR part 2, will continue to govern the disclosure of 
substance abuse patient records. There may also be provisions of a 
particular State's law governing State judicial or administrative 
proceedings, including State medical record privacy statutes, as well 
as precedential court opinions, which apply to the circumstances 
described in the section, that will not be preempted by this part. 
Also, the discovery of psychiatric counseling records in federal 
proceedings governed by section 501 of the Federal Rules of Evidence, 
has been restricted in certain circumstances, by Jaffee v. Redmond, 116 
S. Ct. 1923 (1996). These more stringent rules would remain in place.

[[Page 59960]]

4. Disclosure to Coroners and Medical Examiners  (Sec. 164.510(e))
    [Please label comments about this section with the subject: 
``Coroners and medical examiners'']
    In Sec. 164.510(e), we propose to allow covered entities to 
disclose protected health information without individual authorization 
to coroners and medical examiners, as authorized by law, for 
identification of a deceased person or to determine cause of death.
    a. Importance of disclosure to coroners and medical examiners and 
the need for protected health information. Coroners and medical 
examiners, who under State or other law typically are public officials, 
have a legitimate need to obtain protected health information in an 
expeditious manner in order to carry out their legal responsibility to 
identify deceased persons and determine cause of death. Such disclosure 
would be clearly in the public interest, and should be included among 
the types of disclosures for which the public interest in efficient 
sharing of medical information outweighs any individual privacy 
interests that may be compromised.
    b. Proposed requirements. Proposed Sec. 164.510(e) would allow 
covered entities to disclose protected health information about a 
deceased person without individual authorization to coroners and 
medical examiners, consistent with other law, for the purpose of a 
post-mortem investigation.
    We recognize that a deceased person's medical record could include 
information that potentially could reveal health information about 
others, for example, relatives who have the same genetically linked 
disease as the deceased individual. In developing this section of the 
proposed rule, we considered requiring covered entities to redact any 
protected health information about persons other than the deceased 
before giving the record to coroners or medical examiners.
    We rejected this option for two reasons. First, coroners and 
medical examiners typically need significant portions of a deceased 
person's medical record, and, in some cases, all medical records that 
are available, to conduct a post-mortem investigation, which may also 
include an autopsy. Second, they need to obtain the record quickly, 
because there is a limited time period after death within which an 
autopsy can be conducted. Requiring covered entities to take the time 
to review and redact portions of the health information before 
providing it to a coroner or medical examiner would create delays that 
could make it impossible to conduct an autopsy appropriately. Nothing 
in this rule would prohibit a covered entity from undertaking such 
redaction on its own initiative so long as the information provided 
would meet the needs of the coroner or medical examiner.
    In addition to these two reasons, it is our understanding that 
health care providers, as a standard record keeping practice, rarely 
identify specific persons other than the patient in the record. We are 
soliciting comment on whether health care providers routinely identify 
other persons specifically in a individual's record and if so, whether 
we should require the provider to redact the information about the 
other person before providing it to a coroner or medical examiner.
    Under Sec. 164.518(c), covered entities would have an obligation to 
verify the identity of the coroner or medical examiner making the 
request for protected health information and the legal authority 
supporting the request, before the disclosure would be permitted under 
this subsection. Preamble section II.G.3. describes these requirements 
in more detail.
    We intend to allow only those disclosures that are authorized by 
other applicable law. Laws vary widely regarding release of health 
information to coroners and medical examiners for the purposes of 
identifying deceased persons or determining cause of death, and we do 
not intend to disturb those practices.
5. Disclosure for Law Enforcement  (Sec. 164.510(f))
[Please label comments about this section with the subject: ``Law 
enforcement'']
    In Sec. 164.510(f), we propose to permit covered entities to 
disclose protected health information without individual authorization 
to a law enforcement official conducting a law enforcement inquiry 
authorized by law if the request for protected health information is 
made pursuant to a judicial or administrative process, as described 
below. Similarly, we propose to permit covered entities to disclose 
protected health information to a law enforcement official without 
individual authorization for the conduct of lawful intelligence 
activities. We also propose to permit covered entities to disclose 
protected health information to a law enforcement official about the 
victim of a crime, abuse or other harm, if the information is needed to 
determine both whether a violation of law by a person other than the 
victim has occurred and whether an immediate law enforcement activity 
might be necessary. We would further permit such disclosure for the 
purpose of identifying a suspect, fugitive, material witness, or 
missing person, if the covered entity discloses only limited 
identifying information. Finally, we would permit disclosure of 
protected health information by a health plan or a health care provider 
without individual authorization to law enforcement officials if the 
plan or provider believed in good faith that the disclosed protected 
health information would constitute evidence of criminal conduct that 
constitutes health care fraud, occurred on the premises of the covered 
entity, or was witnessed by an employee of the covered entity.
    i. Law enforcement need for protected health information. Law 
enforcement officials need protected health information for their 
investigations in a variety of circumstances. Health information about 
a victim of a crime may be needed to investigate the crime, or to allow 
prosecutors to determine the proper charge. For some crimes, the 
severity of the victim's injuries will determine what charge should be 
brought against a suspect. The medical condition of a defendant could 
also be relevant to whether a crime was committed, or to the 
seriousness of a crime. The medical condition of a witness could be 
relevant to the reliability of that witness. Medical, billing, 
accounting or other documentary records in the possession of a covered 
entity can be important evidence relevant to criminal fraud or 
conspiracy investigations. Nor is this list of important uses by law 
enforcement exhaustive.
    In many cases, the law enforcement official will obtain such 
evidence through legal process, such as judicially executed warrant, an 
administrative subpoena, or a grand jury subpoena. In other 
circumstances, time constraints preclude use of such process. For 
example, health information may be needed when a law enforcement 
official is attempting to apprehend an armed suspect who is rapidly 
fleeing. Health information may be needed from emergency rooms to 
locate a fleeing prison escapee or criminal suspect who was injured and 
is believed to have stopped to seek medical care.
    Protected health information could be sought as part of a law 
enforcement investigation, to determine whether and who committed a 
crime, or it could be sought in conjunction with the trial to be 
presented as evidence. These uses of medical information are clearly in 
the public interest. Requiring the authorization of the subject prior 
to disclosure could impede important law enforcement activities by 
making

[[Page 59961]]

apprehension and conviction of some criminals difficult or impossible.
    As described above, this proposed rule seeks to respond 
appropriately to new risks to privacy that could emerge as the form of 
medical records changes in coming years. The administrative 
simplification mandated by HIPAA will lead to far greater exchanges of 
individually identifiable health information among covered entities in 
the future, increasingly in electronic form. If a misperception were to 
develop that law enforcement had instant and pervasive access to 
medical records, the goals of this proposed regulation could be 
undermined. For instance, individuals might become reluctant to seek 
needed care or might report inaccurately to providers to avoid 
revealing potentially embarrassing or incriminating information. In 
addition, popular concerns about government access to sensitive medical 
records might impede otherwise achievable progress toward 
administrative simplification. We believe that the proposed 
prophylactic and administrative rules governing disclosure to law 
enforcement officials, as described below, are justified in order to 
avoid these harms in the future.
    ii. Proposed requirements. In Sec. 164.510(f), we propose to permit 
covered entities to disclose protected health information to law 
enforcement officials conducting or supervising a law enforcement 
inquiry or proceeding authorized by law if the request for protected 
health information is made:
     Pursuant to a warrant, subpoena, or order issued by a 
judicial officer;
     Pursuant to a grand jury subpoena;
     Pursuant to an administrative subpoena or summons, civil 
investigative demand, or similar certification or written order issued 
pursuant to federal or state law where (i) the records sought are 
relevant and material to a legitimate law enforcement inquiry; (ii) the 
request is as specific and narrowly drawn as is reasonably practicable 
to meet the purposes of the inquiry; and (iii) de-identified 
information could not reasonably be used to meet the purposes of the 
inquiry;
     For limited identifying information where necessary to 
identify a suspect, fugitive, witness, or missing person;
     By a law enforcement official requesting protected health 
information about an individual who is, or who is suspected to be, the 
victim of a crime, abuse or other harm, if such law enforcement 
official represents that (i) such information is needed to determine 
whether a violation of law by a person other than the victim has 
occurred and (ii) immediate law enforcement activity which depends on 
the official obtaining such information may be necessary;
     For the conduct of lawful intelligence activities 
conducted pursuant to the National Security Act of 1947 (50 U.S.C. 401 
et seq.) or in connection with providing protective services to the 
President or other individuals pursuant to section 3056 of title 18, 
United States Code, and the disclosure is otherwise authorized under 
Federal or state law; or
     To law enforcement officials when a covered entity 
believes in good faith that the disclosed protected health information 
constitutes evidence of criminal conduct that: (i) Arises out of and is 
directly related to the receipt of health care or payment for health 
care (including a fraudulent claim for health care) or qualification 
for or receipt of benefits, payments or services based on a fraudulent 
statement or material misrepresentation of the health of a patient; 
(ii) occurred on the premises of the covered entity; or (iii) was 
witnessed by an employee or other workforce member of the covered 
entity.
    In drafting the proposed rule, we have attempted to match the level 
of procedural protection for privacy with the nature of the law 
enforcement need for access. Therefore, access for law enforcement 
under this rule would be easier where other rules would impose 
procedural protections, such as where access is granted after review by 
an independent judicial officer. Access would also be easier in an 
emergency situation or where only limited identifying information would 
be provided. By contrast, this rule proposes stricter standards for 
administrative requests, where other rules could not impose appropriate 
procedural protections.
    Under the first part of this proposal, we would authorize 
disclosure of protected health information pursuant to a request that 
has been reviewed by a judicial officer. Examples of such requests 
include State or federal warrants, subpoenas, or other orders signed by 
a judicial officer. Review by a judicial officer is significant 
procedural protection for the proper handling of individually 
identifiable health information. Where such review exists, we believe 
that it would be appropriate for covered entities to disclose 
individually identifiable health information pursuant to the order.
    Under the second part of this proposal, we would authorize 
disclosure of protected health information pursuant to a State or 
federal grand jury subpoena. Information disclosed to a grand jury is 
covered by significant secrecy protections, such as under Federal Rule 
of Criminal Procedure 6(e) and similar State laws. Our understanding is 
that State grand juries have secrecy protections substantially as 
protective as the federal rule. We solicit comment on whether there are 
any State grand jury secrecy provisions that are not substantially as 
protective.
    Under the third part of this proposal, we would set somewhat 
stricter standards than exist today for disclosure pursuant to 
administrative requests, such as an administrative subpoena or summons, 
civil investigative demand, or similar process authorized under law. 
These administrative actions do not have the same procedural 
protections as review by an independent judicial officer. They also do 
not have the grand jury secrecy protections that exist under federal 
and State law. For administrative requests, an individual law 
enforcement official can define the scope of the request, sometimes 
without any review by a superior, and present it to the covered entity. 
We propose, therefore, that a greater showing should be made for an 
administrative request before the covered entity would be permitted to 
release protected health information. We also believe that the somewhat 
stricter test for administrative requests would provide some reason for 
officials to choose to obtain protected health information through 
process that includes the protections offered by judicial review or 
grand jury secrecy.
    We therefore propose that a covered entity could disclose protected 
health information pursuant to an administrative request, issued 
pursuant to a determination that: (i) The records sought are relevant 
and material to a legitimate law enforcement inquiry; (ii) the request 
is as specific and narrowly drawn as is reasonably practicable; and 
(iii) de-identified information could not reasonably be used to meet 
the purpose of the request.
    Because our regulatory authority does not extend to law enforcement 
officials, we are seeking comment on how to create an administrable 
system for implementing this three-part test. We do not intend that 
this provision require a covered entity to second guess representations 
by an appropriate law enforcement official that the three part test has 
been met.
    To verify that the three-part test has been met, we propose that a 
covered entity be permitted to disclose protected health information to 
an appropriate law enforcement official pursuant to a subpoena or other 
covered administrative request that on its face indicates that the 
three-part test has

[[Page 59962]]

been met. In the alternative, where the face of the request does not 
indicate that the test has been met, a covered entity could disclose 
the information upon production of a separate document, signed by a law 
enforcement official, indicating that the three-part test has been met. 
Under either of these alternatives, disclosure of the information can 
also be made if the document applies any other standard that is as 
strict or stricter than the three-part test.
    This approach would parallel the research provisions of proposed 
Sec. 164.510(j). Under that section, disclosure would be authorized by 
a covered entity where the party seeking the records produces a 
document that states it has met the standards for the institutional 
review board process. We solicit comments on additional, administrable 
ways that a law enforcement official could demonstrate that the 
appropriate issuing authority has determined that the three-part test 
has been met.
    We solicit comment on the burdens and benefits of the proposed 
three-part test for administrative requests. For covered entities, we 
are interested in comments on how burdensome it would be to determine 
whether the three-part test has been met, and we would explore 
suggestions for approaches that would be more easily administered. For 
law enforcement, we are interested in the potential impact that this 
approach might have on current law enforcement practices, and the 
extent to which law enforcement officials believe that their access to 
information critical to law enforcement investigations could be 
impaired. We solicit comment on the burden on law enforcement 
officials, compared to current practice, of writing the administrative 
requests. We would also like comments on whether there are any federal, 
State, or local laws that would create an impediment to application of 
this section, including the proposed three-part test. If there are such 
impediments, we would solicit comment on whether extending the 
effective date of this section could help to prevent difficulties. On 
the benefit side, we are interested in comments on the specific gains 
for privacy that would result from requiring law enforcement to comply 
with greater procedures than currently exist for gaining access to 
protected health information.
    As the fourth part of this proposal, we address limited 
circumstances where the disclosure of health information by covered 
entities would not be made pursuant to lawful process such as judicial 
order, grand jury subpoena, or administrative request. In some cases 
law enforcement officials could seek limited but focused information 
needed to obtain a warrant. For example, a witness to a shooting may 
know the time of the incident and the fact that the perpetrator was 
shot in the left arm, but not the identity of the perpetrator. Law 
enforcement would then have a legitimate need to ask local emergency 
rooms whether anyone had presented with a bullet wound to the left arm 
near the time of the incident. Law enforcement may not have sufficient 
information to obtain a warrant, but instead would be seeking such 
information. In such cases, when only limited identifying information 
is disclosed and the purpose is solely to ascertain the identity of a 
person, the invasion of privacy would be outweighed by the public 
interest.
    In such instances, we propose to permit covered entities to 
disclose ``limited identifying information'' for purposes of 
identifying a suspect, fugitive, material witness, or missing person. 
We would define ``limited identifying information'' as the name, 
address, social security number, date of birth, place of birth, type of 
injury, date and time of treatment, and date of death. Disclosure of 
any additional information would cause the covered entity to be out of 
compliance with this provision, and subject to sanction. The request 
for such information could be made orally or in writing. Requiring the 
request to be in writing could defeat the purposes of this provision. 
We solicit comment on whether the list of ``limited identifying 
information'' is appropriate, or whether additional identifiers, such 
as blood type, also should be permitted disclosures under this section. 
Alternatively, we solicit comment on whether any of the proposed items 
on the list are sufficiently sensitive to warrant a legal process 
requirement before they should be disclosed.
    Under the fifth part of the proposal, we would clarify that the 
protected health information of the victim of a crime, abuse or other 
harm could be disclosed to a law enforcement official if the 
information is needed to determine both whether a violation of law by a 
person other than the victim has occurred and whether an immediate law 
enforcement activity might be necessary. There could be important 
public safety reasons for obtaining medical records or other protected 
health information quickly, perhaps before there would be time to get a 
judicial order, grand jury subpoena, or administrative order. In 
particular, where the crime was violent, information about the victim's 
condition could be needed to present to a judge in a bond hearing in 
order to keep the suspect in custody while further evidence is sought. 
Information about the victim also could be important in making an 
appropriate charging decision. Rapid access to victims' medical records 
could reduce the risk of additional violent crimes, such as in cases of 
spousal or child abuse or in situations where the protected health 
information could reveal evidence of the identity of someone who is 
engaged in ongoing criminal activities.
    In some of these instances, release of protected health information 
would be authorized under other sections of this proposed regulation, 
pursuant to provisions for patient consent, health oversight, 
circumstances, or disclosure pursuant to mandatory reporting laws for 
gunshot wounds or abuse cases. (As discussed later in section II.I, our 
rule would not be construed to invalidate or limit the authority, 
powers or procedures established under any law that provides for 
reporting of injury, child abuse or death.) In addition, 
Sec. 164.510(k) addressing emergency circumstances would permit covered 
entities to disclose protected health information in instances where 
the disclosure could prevent imminent harm to the individuals or to the 
public. However, we propose to include this fifth provision for law 
enforcement access to ensure that immediate need for law enforcement 
access to information about a victim would be permitted under this 
rule.
    Under the sixth part of this proposal, we seek to assure that this 
rule would not interfere with the conduct of lawful security functions 
in protection of the public interest, as defined by the Congress. 
Therefore, we would allow disclosure of protected health information 
for the conduct of lawful intelligence activities conducted pursuant to 
the National Security Act of 1947. Similarly, we would allow disclosure 
of protected health information for providing protective services to 
the President or other individuals pursuant to section 3056 of title 
18, United States Code. Where such disclosures are authorized by 
Federal or state law, we would not interfere with these important 
national security activities.
    Under the final part of this proposal, we would permit covered 
entities that uncover evidence of health care fraud to disclose the 
protected health information that evidences such fraud to law 
enforcement officials without receiving a request from such officials. 
This provision would permit covered entities to make certain 
disclosures to law enforcement officials on their own

[[Page 59963]]

initiative if the information disclosed constitutes evidence of 
criminal conduct that arises out of and is directly related to (i) the 
receipt of health care or payment for health care (including a 
fraudulent claim for health care) or (ii) qualification for or receipt 
of benefits, payments or services based on a fraudulent statement or 
material misrepresentation of the health of a patient. Similarly, we 
would permit covered entities on their own initiative to disclose to 
law enforcement officials protected health information that the covered 
entity believes in good faith constitutes evidence of criminal conduct 
that either occurred on the covered entity's premises or was witnessed 
by an employee (or other workforce member) of the covered entity. In 
such situations, covered entities should be permitted to take 
appropriate steps to protect the integrity and safety of their 
operations or to assure that the such criminal conduct is properly 
prosecuted.
    To be protected by this provision, the covered entity would have to 
have good faith belief that the disclosed protected health information 
was evidence of such conduct. If the covered entity disclosed protected 
health information in good faith but was wrong in its belief that the 
information evidenced a legal violation, the covered entity would not 
be subject to sanction under this regulation. We would not require the 
covered entity to accurately predict the outcome of a criminal 
investigation.
    There also are situations where law enforcement officials would 
need access to information for emergency circumstances. In those cases, 
the disclosure could be made under Sec. 164.510(k), ``Disclosure in 
emergency circumstances.''
    Pursuant to Sec. 164.518(c), covered entities would have an 
obligation to verify the identity of the person seeking disclosure of 
protected health information and the legal authority behind the 
request. As described in section II.H.3. of this preamble, we would 
permit covered entities to rely on a badge or similar identification to 
confirm that the request for protected health information is being made 
by a law enforcement official. If the request is not made in person, we 
would permit the covered entity to rely on official letter head or 
similar proof.
    Where the covered entity must verify that lawful process has been 
obtained, Sec. 164.518(c) would require the covered entity to review 
the document evidencing the order. The covered entity could not 
disclose more information than was authorized in the document.
    Because the regulation applies to covered entities, and not to the 
law enforcement officials seeking the protected health information, the 
covered entity would not be in a position to determine with any 
certainty whether the underlying requirements for the process have been 
met. For instance, it may be difficult for the covered entity to 
determine whether the three-part test has been met for an 
administrative request. In light of this difficulty facing covered 
entities, the proposed rule would include a good faith provision. Under 
that provision, covered entities would not be liable under the rule for 
disclosure of protected health information to a law enforcement 
official where the covered entity or its business partners acted in a 
good faith belief that the disclosure was permitted under this title. 
We solicit comment on the extent to which this good faith provision 
would make the proposed rule less burdensome on covered entities and 
law enforcement officials. We also solicit comment on the extent to 
which the provision could undermine the effectiveness of the provision.
    For requests for the conduct of intelligence activities or for 
protective services, covered entities would be required to verify the 
identity of the person or entity requesting the information, through a 
badge or other identification, or official letter head, as just 
described. If such verification of identity is obtained, covered 
entities would be permitted to reasonably rely on the representations 
of such persons that the request is for lawful national security or 
protective service activities and is authorized by law. Similarly, to 
disclose limited identifying information, covered entities would be 
required to obtain verification that the request comes from a law 
enforcement official, and would be permitted to reasonably rely on such 
official's representation that the information is needed for the 
purpose of identifying a suspect, fugitive, material witness, or 
missing person and is authorized by law.
    iii. Additional considerations. This section is not intended to 
limit or preclude a covered entity from asserting any lawful defense or 
otherwise contesting the nature or scope of the process when the 
procedural rules governing the proceeding so allow, although it is not 
intended to create a basis for appealing to federal court concerning a 
request by state law enforcement officials. Each covered entity would 
continue to have available legal procedures applicable in the 
appropriate jurisdiction to contest such requests where warranted. This 
proposed rule would not create any new affirmative requirement for 
disclosure of protected health information. Similarly, this section is 
not intended to limit a covered entity from disclosing protected health 
information for law enforcement purposes where other sections of the 
rule permit such disclosure, e.g., as permitted by Sec. 164.510 under 
emergency circumstances, for oversight or public health activities, to 
coroners or medical examiners, and in other circumstances permitted by 
the rule.
    In obtaining protected health information, law enforcement 
officials would have to comply with whatever other law was applicable. 
In certain circumstances, while this subsection could authorize a 
covered entity to disclose protected health information to law 
enforcement officials, there could be additional applicable statutes 
that further govern the specific disclosure. If the preemption 
provisions of this regulation do not apply, the covered entity must 
comply with the requirements or limitations established by such other 
law, regulation or judicial precedent. See proposed Secs. 160.201 
through 160.204. For example, if State law would permit disclosure only 
after compulsory process with court review, a provider or payer would 
not be allowed to disclose information to state law enforcement 
officials unless the officials had complied with that requirement. 
Similarly, disclosure of substance abuse patient records subject to, 42 
U.S.C. 290dd-2, and the implementing regulations, 42 CFR part 2, would 
continue to be governed by those provisions.
    In some instances, disclosure of protected health information to 
law enforcement officials would be compelled by other law, for example, 
by compulsory judicial process or compulsory reporting laws (such as 
laws requiring reporting of wounds from violent crimes, suspected child 
abuse, or suspected theft of prescription controlled substances). 
Disclosure of protected health information under such other mandatory 
law would be permitted under proposed Sec. 164.510(n).
    In developing our proposal, we considered permitting covered 
entities to disclose protected health information pursuant to any 
request made by a law enforcement official, rather than requiring some 
form of legal process or narrowly defined other circumstances. We 
rejected this option because we believe that in most instances some 
form of review should be required. Individuals' expectation of privacy 
with respect to their health information is sufficiently strong to 
require some form of process prior to disclosure to the

[[Page 59964]]

government. At the same time, we recognize that the public interest 
would not be served by requiring such formal process in every instance. 
Under our proposal, therefore, law enforcement could obtain certain 
identifying information in order to identify suspects and witnesses, 
and could obtain information for national security or protective 
services activities or in emergency circumstances. Similarly, we would 
not require process before a law enforcement official could obtain 
information about the victim of a crime, where the information is 
necessary as the basis for immediate action. In addition, in seeking an 
appropriate balance between public safety and individuals' expectation 
of privacy, we are proposing that covered entities not be subject to 
enforcement under this regulation if they disclose protected health 
information to law enforcement officials in a good faith belief that 
the disclosure was permitted under this title.
    We solicit comment on what additional steps, if any, are 
appropriate for allowing law enforcement access to protected health 
information. We are interested in comments concerning situations where 
needed access to protected health information would not be available 
under these or other provisions of this proposed rule. We also seek 
comment on specific privacy or other concerns that would apply if the 
final regulation included provision for law enforcement access to 
protected health information without requiring a judicial order, grand 
jury subpoena, or administrative request, under such additional defined 
circumstances.
    In some of these instances, release of protected health information 
would be authorized under the proposed regulation pursuant to 
provisions for patient consent, health oversight, emergency 
circumstances, or under mandatory reporting laws for gunshot wounds or 
abuse cases. We are interested in comments concerning situations where 
needed access to protected health information would not be available 
under these or other provisions of this proposed rule. We also seek 
comment on specific privacy or other concerns that would apply if the 
final regulation included provision for law enforcement access to 
protected health information without requiring a judicial order, grand 
jury subpoena, or administrative request, under such additional defined 
circumstances.
    Our proposal with respect to law enforcement has been shaped by the 
limited scope of our regulatory authority under HIPAA, which applies 
only to the covered entities and not to law enforcement officials. We 
believe the proposed rule sets the correct standards for when an 
exception to the rule of non-disclosure is appropriate for law 
enforcement purposes. There may be advantages, however, to legislation 
that applies the appropriate standards directly to judicial officers, 
prosecutors in grand juries, and to those making administrative or 
other requests for protected health information, rather than to covered 
entities as in the proposed regulation. These advantages could include 
measures to hold officials accountable if they seek or receive 
protected health information contrary to the legal standard. In 
Congressional consideration of law enforcement access, there have also 
been useful discussions of other topics, such as limits on re-use of 
protected health information gathered in the court of oversight 
activities. These limitations on our regulatory authority provide 
additional reason to support comprehensive medical privacy legislation.
6. Uses and Disclosures for Governmental Health Data Systems  
(Sec. 164.510(g))
    [Please label comments about this section with the subject: 
``Governmental health data systems'']
    In Sec. 164.510(g), we propose to permit covered entities to 
disclose protected health information for inclusion in State or other 
governmental health data systems without individual authorization when 
such disclosures are authorized by State or other law in support of 
policy, planning, regulatory or management functions.
    a. Importance of Governmental health data systems and the need for 
protected health information. Governmental agencies collect and analyze 
individually identifiable health information as part of their efforts 
to improve public policies and program management, improve health care 
and reduce costs, and improve information available for consumer 
choices. Governments use the information to analyze health care 
outcomes, quality, costs and patterns of utilization, effects of public 
policies, changes in the health care delivery system, and related 
trends. These important purposes are related to public health, research 
and oversight (although the information in State or other governmental 
data systems usually is not collected specifically to audit or evaluate 
health care providers or for public health surveillance). The data are 
an important resource that can be used for multiple public policy 
evaluations.
    The collection of health information by governmental health data 
systems often occurs without specification of the particular analyses 
that could be conducted with the information. These governmental data 
collection programs frequently call for reporting of information for 
all individuals treated or released by specified classes of providers. 
For example, many States request and receive from hospitals records 
containing individual diagnosis and treatment data for all discharges 
from their facilities. State hospital discharge data have been used to 
compare treatment practices and costs between hospitals, to evaluate 
implications for funding of health care, as well as to provide hospital 
``report cards'' to consumers. As part of its general evaluation 
activities, the DOD maintains a very large database, called the 
Comprehensive Clinical Evaluation Program, involving military personnel 
who have reported illnesses possibly arising from service during the 
Gulf War.
    b. Proposed requirements. We propose to permit covered entities to 
disclose protected health information for inclusion in State or other 
governmental health data systems when such disclosure is authorized by 
law for analysis in support of policy, planning, regulatory, and 
management functions. The recipient of the information must be a 
government agency (or privacy entity acting on behalf of a government 
agency). Where the covered entity is itself a government agency that 
collects health data for analysis in support of policy, planning, 
regulatory, or management functions, it would be permitted to use 
protected health information in all cases in which it is permitted to 
disclose such information for government health data systems under this 
section.
    We believe that Congress intended to permit States, Tribes, 
territories, and other governmental agencies to operate health data 
collection systems for analyzing and improving the health care system. 
In section 1178(c), ``State regulatory reporting,'' HIPAA provides that 
it is not limiting the ability of a State to require a health plan to 
report, or to provide access to, information for a variety of oversight 
activities, as well as for ``program monitoring and evaluation.'' We 
also believe that the considerations Congress applied to State 
capacities to collect data would apply to similar data collection 
efforts by other levels of government, such as those undertaken by 
Tribes, territories and federal agencies. Therefore, we considered two 
questions regarding governmental health data systems; first,

[[Page 59965]]

which entities could make such disclosures; and second, what type of 
legal authority would be necessary for the disclosure to be permitted.
    We considered whether to allow disclosure by all covered entities 
to governmental data collection systems or to limit permitted 
disclosures to those made by health plans, as specified in the 
regulatory reporting provision of HIPAA. While this provision only 
mentions data collected from health plans, the conference agreement 
notes that laws regarding ``State reporting on health care delivery or 
costs, or for other purposes'' should not be preempted by this rule. 
States would be likely to require sources of information other than 
health plans, such as health care providers or clearinghouses, in order 
to examine health care delivery or costs. Therefore, we do not believe 
it is appropriate to restrict States' or other governmental agencies' 
ability to obtain such data. This viewpoint is consistent with the 
Recommendations, which would permit this disclosure of protected health 
information by all covered entities.
    We also asked what type of law would be required to permit 
disclosure without individual authorization to governmental health data 
systems. We considered requiring a specific statute or regulation that 
requires the collection of protected health information for a specified 
purpose. A law that explicitly addresses the conditions under which 
protected health information is collected would provide individuals and 
covered entities with a better understanding of how and why the 
information is to be collected and used.
    We understand, however, that explicit authority to collect 
information is not always included in relevant law. Governmental 
agencies may collect health data using a broad public health or 
regulatory authority in statute or regulation. For example, a law may 
call on a State agency to report on health care costs, without 
providing specific authority for the agency to collect the health care 
cost data they need do so. Consequently, the agency may use its general 
operating authority to request health care providers to release the 
information. We recognize that many governmental agencies rely on broad 
legal authority for their activities and do not intend this proposed 
rule to hamper those efforts.
    Under Sec. 164.518(c), covered entities would have an obligation to 
verify the identity of the person requesting protected health 
information, and the legal authority behind the request before the 
disclosure would be permitted under this subsection. Preamble section 
II.G.3. describes these requirements in more detail.
7. Disclosure of Directory Information (Sec. 164.510(h))
    [Please label comments about this section with the subject: 
``Directory information'']
    In Sec. 164.510(h), we propose to permit covered entities to 
disclose information that could reveal protected health information 
about an individual for purposes of a facility patient directory, if 
the individual has indicated consent to such disclosures, or if the 
individual who is incapacitated had not previously expressed a 
preference in this regard and a covered entity determines that 
including such information in the directory would be consistent with 
good medical practice. Directory information could include only the 
person's name, location in the institution, and general condition.
    a. Importance of directory information and need for protected 
health information. When individuals enter inpatient facilities, they 
are not always able to contact people who may need to know their 
whereabouts, want to visit them, or want to send them flowers or some 
other expression of concern. Today, facilities typically operate 
patient directories, allowing confirmation of a person's presence in a 
facility, providing the room number for visits and deliveries, and 
sometime providing general information on the patient's condition. 
These services cannot be performed without disclosing protected health 
information. Since most patients find this a welcome convenience, we 
believe it would be important to allow these practices to continue. 
However, not everyone may appreciate this service. We are proposing to 
accommodate the wishes of such people, where possible.
    b. Proposed requirements. In Sec. 164.510(h), we would require 
covered entities to ask individuals whether they wish to be included in 
the entity's directory. For individuals who are incapacitated or 
otherwise unable to communicate their wishes and who have not 
previously expressed a preference, the decision would be left to the 
discretion of the covered entity, consistent with good medical 
practice. We note that legal representatives could make such decisions 
on behalf of persons who are incapacitated or otherwise unable to 
communicate their wishes, consistent with State or other law, since 
they would stand as the ``individual.'' In the absence of a legal 
representative or prior expression of a preference by the individual, 
the decision would be left to the discretion of the covered entity, 
consistent with good medical practice.
    i. Individuals capable of making decisions.
    For individuals who are not incapacitated, this rule would require 
the covered entity to ask whether information about the individual's 
presence in the facility, room number and general condition can be 
included in the general patient directory. When individuals are capable 
of making such a determination, their wishes should be respected.
    We considered whether also to require covered entities to allow an 
individual to specify that information can be provided to specific 
persons but not others. For example, someone may feel that it is 
acceptable to release information to family members but not to friends. 
While we would like to respect individuals' wishes to the greatest 
extent possible, we are concerned about placing on covered entities the 
burden of verifying the identify of a person requesting directory 
information. We are therefore not including this additional 
requirement, but are requesting comments on current practices and how 
such requests might be accommodated.
    We would not require a formal individual authorization pursuant to 
Sec. 164.508. A verbal or other informal inquiry and agreement would be 
sufficient. We require only that individuals be given the choice.
    ii. Incapacitated individuals.
    If an individual is not able to make determinations as to whether 
location or status information should be released to family and 
friends, and had not in the past expressed a preference in this regard, 
we would leave the decision as to whether to include the individual in 
a directory to the discretion of the covered entity. Often individuals 
are unconscious or otherwise unable due to a medical condition to 
communicate their wishes to the entity and no representative is 
available to act for them. In these cases, we encourage the covered 
entity to take into consideration a number of factors when deciding 
whether or not to include such an individual in the directory:
     Could disclosing that an individual is in the facility 
reasonably cause danger of harm to the individual? For example, if a 
person is unconscious and receiving treatment for injuries resulting 
from physical abuse from an unknown source, an entity may determine 
that revealing that the individual is in the facility could give the 
attacker enough information to seek out the individual and repeat the 
abuse.

[[Page 59966]]

     Could disclosing the location within the facility of the 
patient give information about the condition of the patient? If a 
patient's room number would reveal the nature of the medical condition, 
the entity may decide that it is inappropriate to give that 
information. For example, if one floor of a hospital has been 
specifically designated as the psychiatric floor, simply saying that a 
patient is located on that floor discloses some information about the 
condition of the individual.
     Is it necessary or appropriate to give the status of a 
patient to family or friends? Covered entities often need information 
from family or friends for the treatment of an incapacitated 
individual. For example, if a patient is unconscious, family or friends 
may be able to give valuable information that will assist the care 
giver in making urgent decisions. Family members or friends may be able 
to give information on drugs or medications that the individual has 
been taking. On the other hand, it may be that revealing the status of 
an individual gives more information than the individual would have 
disclosed if they could make the determination themselves.
     If an individual had, prior to becoming incapacitated, 
expressed a desire not to be included in such a directory and the 
covered entity learns of that statement of preference, the covered 
entity would be required to act in accordance with the stated 
preference.
    Individuals who enter a facility incapacitated and then improve to 
the point of being able to make their own determinations should be 
asked within a reasonable time period for permission to include 
information in the facility's directory.
    When the condition of an individual who has opted not to allow 
protected health information to be included in the facility's directory 
deteriorates, and the individual is no longer capable of making 
disclosure decisions, the covered entity would be required to abide by 
the individual's initial decision. However, such a decision should not 
prevent a provider from contacting the family if such contact is 
required for good medical practice. A provider could need information 
from the family to treat a newly incapacitated person. If good medical 
practice would include contacting family or friends, the individual's 
initial request should not prohibit such contact. But the covered 
entity would still be prohibited from including information about the 
individual in its directory.
8. Disclosure for Banking and Payment Processes  (Sec. 164.510(i))
    [Please label comments about this section with the subject: 
``Banking and payment processes'']
    In Sec. 164.510(i), we propose to allow covered entities to 
disclose protected health information to financial institutions, or 
entities acting for financial institutions, if necessary for processing 
payments for health care and health care premiums.
    a. Importance of financial transactions and the need for protected 
health information. Checks that individuals use to pay for health care 
typically include the names of providers or provider groups that could 
implicitly identify the medical condition for which treatment was 
rendered. Similarly, a credit card transaction will also reveal the 
identify of the provider and thus potentially the nature of the medical 
condition involved. While such information would constitute protected 
health information under this rule, there is no practical way of 
concealing this information when the provider deposits the check or 
claims credit card payment. Failure to allow this kind of disclosure of 
protected health information would impede the efficient operations of 
the health care system.
    b. Proposed requirements. We propose that covered entities be 
permitted to disclose protected health information to financial 
institutions for the specific purposes listed in the section. The 
permissible purposes are those identified in the statute, and the 
regulatory text would copy the statutory list of allowable uses.
    Under section 1179 of the Act, activities of financial institutions 
are exempt from HIPAA's Administrative Simplification requirements to 
the extent that those activities constitute ``authorizing, processing, 
clearing, settling, billing, transferring, reconciling, or collecting 
payments'' for health care or health plan premiums. This section of the 
statute states that financial institutions can use or disclose 
protected health information for these purposes. We read this part of 
the statute as indicating that Congress intended that this regulation 
not impede the efficient processing of these transactions, and 
accordingly are allowing covered entities to disclose protected health 
information to financial institutions for the purposes listed in 
section 1179 of the statute.
    Proposed Sec. 164.510(i) would not allow covered entities to 
include any diagnostic or treatment information in the data transmitted 
to financial institutions. Such information is never necessary to 
process a payment transaction. We believe that, in most cases, the 
permitted disclosure would include only: (1) The name and address of 
the account holder; (2) the name and address of the payer or provider; 
(3) the amount of the charge for health services; (4) the date on which 
health services were rendered; (5) the expiration date for the payment 
mechanism, if applicable (i.e., credit card expiration date); and (6) 
the individual's signature. At this time, we are not proposing to 
include in the regulation an exclusive list of information that could 
be lawfully disclosed for this purpose. We are, however, soliciting 
comment on whether more elements would be necessary for these banking 
and payment transactions and on whether including a specific list of 
the protected health information that could be disclosed is an 
appropriate approach.
    We understand that financial institutions may also provide covered 
entities that accept payment via credit card with software that, in 
addition to fields for information required to process the transaction, 
includes blank fields in which health plans or health care providers 
may enter any type of information regarding their patients, such as 
diagnostic and treatment information, or other information that the 
covered entity wished to track and analyze. Other financial 
institutions could provide services to covered entities that constitute 
``health care operations'' as defined in proposed Sec. 164.504.
    We do not know whether and to what extent health plans and health 
care providers are using such software to record and track diagnostic 
and treatment and similar information. However, we recognize that the 
capability exists and that if a plan or provider engages in this 
practice, information not necessary for processing the payment 
transaction could be forwarded to financial institutions along with 
other information used to process payments. Disclosing such information 
to a financial institution (absent a business partner relationship) 
would violate the provisions of this rule.
    We also understand that banks, in addition to offering traditional 
banking services, may be interested in offering additional services to 
covered entities such as claims management and billing support. Nothing 
in this regulation would prohibit banks from becoming the business 
partners of covered entities in accordance with and subject to the 
conditions of Sec. 164.506(e). If a bank offers an integrated package 
of traditional banking services and health claims and billing services, 
it could do

[[Page 59967]]

so through a business partner arrangement that meets the requirements 
of proposed Sec. 164.506(e). Any services offered by the bank that are 
not on the list of exempt services in 1179 would be subject to the 
terms of this rule.
    We recognize that financial institutions' role in providing 
information management systems to customers is evolving and that in the 
future, banks and credit card companies could develop and market to 
health plans and health care providers software designed specifically 
to record and track diagnostic and treatment information along with 
payment information. In light of the rapid evolution of information 
management technology available to plans and providers, we seek comment 
on the types of services that financial institutions are performing or 
may soon perform for covered entities, and how these services could be 
best addressed by this proposed rule.
    Finally, we note that we would impose no verification requirements 
for most routine banking and payment activities. However, if a bank or 
financial institution seeks information outside payment processing 
transactions (e.g., during a special audit), we would require the 
covered entity to take reasonable steps to verify the identity of the 
person requesting the disclosure.
9. Uses and Disclosures for Research  (Sec. 164.510(j))
    [Please label comments about this section with the subject: 
``Research'']
    In Sec. 164.510(j), we propose to permit covered entities to use 
and disclose protected health information for research without 
individual authorization, provided that the covered entity receives 
documentation that the research protocol has been reviewed by an 
Institutional Review Board or equivalent body--a privacy board--and 
that the board found that the research protocol meets specified 
criteria (regarding protected health information) designed to protect 
the subject. Absent such documentation, the subject's protected health 
information could be disclosed for research only with the individual's 
authorization, pursuant to the authorization requirements in proposed 
Sec. 164.508.
    Our proposed requirements for this disclosure build on the 
requirements for such disclosure under the Federal regulation that 
protects human subjects in research conducted or funded by the Federal 
government, the Federal Policy for the Protection of Human Subjects 
(often referred to as the ``Common Rule''), first published for several 
agencies at 56 FR 28,002-028, 032 (1991), and codified for the 
Department of Health and Human Services at 45 CFR part 46.
    a. Importance of research and the need for protected health 
information. Much important and sometimes lifesaving knowledge has come 
from studies that used individually identifiable health information, 
including biomedical and behavioral research, epidemiological studies, 
health services research, and statistical activities. This type of 
research has lead to dramatic improvements in the nation's health. For 
example, the results of such research include the association of a 
reduction in the risk of heart disease with dietary and exercise 
habits, the association between the use of diethylstilbestrol (DES) by 
pregnant women and vaginal cancer in their daughters, and the value of 
beta-blocker therapy in reducing re-hospitalizations and in improving 
survival among elderly survivors of acute myocardial infarction.
    Likewise, research on behavioral, social, and economic factors that 
affect health, and the effect of health on other aspects of life may 
require individually identifiable health information. Studies of this 
kind can yield important information about treatment outcomes and 
patterns of care, disease surveillance and trends, health care costs, 
risk factors for disease, functional ability, and service utilization--
which may ultimately lead to improvements in the quality of patient 
care, the identification and eradication of public health threats, and 
the development of new devices and pharmaceutical products. For 
example, such research uncovered the fact that disease screening and 
treatment patterns vary with the race of the person, which in turn has 
lead to focused outreach programs to improve health. Such research 
showed that the results of certain highly invasive surgical treatments 
are better when the care is provided in hospitals that performed a high 
volume of these procedures.
    It is not always possible for researchers to obtain the consent of 
every subject that a researcher may wish to include within a study. 
Thousands of records may be involved. Tracking down the subjects may 
entail costs that make the research impracticable. The requirement to 
obtain consent also may lead to biased study results, because those who 
refuse consent may be more or less likely than average to have a 
particular health problem or condition. This may be a particular 
concern where the research topic involves sensitive or potentially 
embarrassing information. At the same time, the privilege of using 
individually identifiable health information for research purposes 
without individual authorization requires that the information be used 
and disclosed under strict conditions that safeguard individuals' 
confidentiality.
    b. Definition of research. In proposed Sec. 164.504, we would 
define ``research'' as a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. This is the definition of ``research'' in 
the Common Rule. This definition is well understood in the research 
community and elsewhere, and we propose to use it here to maintain 
consistency with other federal regulations that affect research.
    For purposes of determining whether an activity is research under 
this proposed rule, it would not be relevant whether the information is 
given gratis, sold, bartered, rented, or otherwise provided for 
commercial gain. The purpose of this proposed rule regarding disclosure 
of protected health information for research is to protect the subjects 
of the information. Where the activity meets the definition of research 
and involves use or disclosure of protected health information, the 
rules in this section would apply. We request comments on any aspect of 
our proposed definition of research.
    We understand that research and health care operations often look 
alike, and may overlap. We have provided definitions for these terms in 
Sec. 164.504. We solicit comments on ways to further distinguish 
between research and operations, or otherwise clarify the application 
of this rule to such activities.
    c. Privacy board review requirement. In Sec. 154.510(j), we would 
require covered entities that wish to use or disclose protected health 
information for research without individual authorization to obtain 
documentation that a privacy board has reviewed the research protocol 
and has determined that specified criteria (described below) for waiver 
of authorization for use or disclosure of the information have been 
met. The board could be an IRB constituted under the Common Rule, or an 
equivalent privacy board that meets the requirements in this proposed 
rule. We propose to apply these requirements to uses and disclosures of 
protected health information by all covered entities, regardless of the 
source of funding of the research.
    We propose no requirements for the location or sponsorship of the 
IRB or privacy board. The covered entity could

[[Page 59968]]

create such a board, and could rely on it to review proposals for uses 
and disclosure of records. An outside researcher could come to the 
covered entity with the necessary documentation from his or her own 
university IRB. A covered entity could engage the services of an 
outside IRB or privacy board to obtain the necessary documentation. The 
documentation would have to be reviewed by the covered entity prior to 
a use or disclosure subject to this provision.
    Under our proposal, we would require that the documentation 
provided by the IRB or privacy board state: (1) That the waiver of 
authorization has been approved by the IRB or privacy board; (2) that 
the board either is an IRB established in accordance with the HHS 
regulations (45 CFR 46.107) or equivalent regulations of another 
federal agency, or is a privacy board whose members (i) have 
appropriate expertise for review of records research protocols, (ii) do 
not have a conflict of interest with respect to the research protocol, 
and (iii) include at least one person not affiliated with the 
institution conducting the research; (3) that the eight criteria for 
waiver of authorization (described below) are met by the protocol; and 
(4) the date of board approval of the waiver of authorization. We would 
also require that the documentation be signed by the chair of the IRB 
or privacy board.
    i. Application to disclosures and uses regardless of funding 
source.
    The Common Rule describes conditions under which research may be 
conducted when obtaining authorization is not possible. Those 
conditions are intended to ensure that research on human subjects, 
including research using their health records, is conducted in a manner 
that minimizes or eliminates the risk of harm to individuals. The 
Common Rule has been adopted by seventeen Federal agencies,3 
representing most of the federal agencies sponsoring human subjects 
research.
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    \3\ The following 17 Departments and Agencies have adopted the 
Common Rule: (1) Department of Agriculture; (2) Department of 
Commerce; (3) Department of Defense; (4) Department of Education; 
(5) Department of Energy; (6) Department of Health and Human 
Services; (7) Department of Housing and Urban Development; (8) 
Department of Justice; (9) Department of Transportation; (10) 
Department of Veterans Affairs; (11) International Development 
Cooperative Agency: Agency for International Development; (12) 
Consumer Product Safety Commission; (13) Environmental Protection 
Agency; (14) National Aeronautics and Space Administration; (15) 
National Science Foundation; (16) Social Security Administration; 
(17) Central Intelligence Agency. In addition, the White House 
Office of Science and Technology Policy is a signatory to the Common 
Rule, but its policy is not codified in the Code of Federal 
Regulations.
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    However, a significant amount of research involving protected 
health information is currently conducted in the absence of these 
federal protections. Pharmaceutical companies, health plans, and 
colleges and universities conduct research supported by private funds. 
Identifiable information currently is being disclosed and used by these 
entities without individual authorization without any assessment of 
risk or of whether individual privacy interests are being adequately 
protected.
    The Secretary's Recommendations call for the extension of the 
Common Rule principles for waiver of authorization for research uses 
and disclosures of identifiable health information to all research. The 
Recommendations also propose additional principles that directly 
address waiver of authorization for research use of such information. 
The Recommendations would require an external board to review proposals 
for research on health information under criteria designed to ensure 
that the need for waiver of authorization is real, that the public 
interest in the research outweighs the individual's privacy interest, 
and that privacy will be protected as much as possible. In addition, 
the Secretary's Recommendations proposed important restrictions on use 
and re-disclosure of information by researchers, and requirements for 
safeguarding protected information, that are not currently applied 
under the Common Rule.
    Under the Secretary's Recommendations, these requirements would 
apply to researchers who want to use or obtain identifiable information 
without first obtaining the authorization of the individual who is the 
subject of the information. However, under HIPAA, we do not have the 
authority to regulate researchers unless the researcher is also acting 
as a provider, as in a clinical trial. We can only directly regulate 
health care providers, health plans, and health care clearinghouses. 
This means that for most research-related disclosures of health 
information, we can directly regulate the entities that disclose the 
information, but not the recipients of the information. Therefore, in 
order to implement the principles in the Secretary's Recommendations, 
we must impose any protections on the health plans and health care 
providers that use and disclose the information, rather than on the 
researcher seeking the information.
    We understand that this approach involves imposing burdens on 
covered entities rather than on researchers. However, our jurisdiction 
under this statute leaves us the choice of taking this approach, or 
failing to provide any protection for individuals whose information is 
made the subject of research, or requiring individual authorization 
whenever a covered entity wants to disclose protected health 
information for research. The second approach would provide no 
protection for individuals, and the third approach would make much 
important research impossible. Therefore, we are proposing a mechanism 
that we believe imposes as little burden as possible on the covered 
entity while providing enhanced protection for individuals. This is not 
the approach we advocate for new federal privacy legislation, where we 
would propose that standards be applied directly to researchers, but it 
would be a useful and appropriate approach under the HIPAA legislative 
authority.
    We considered a number of other approaches for protecting 
information from research subjects, particularly when covered entities 
use protected health information internally for research. We considered 
approaches that would apply fewer requirements for internal research 
uses of protected health information; for example, we considered 
permitting covered entities to use protected health information for 
research without any additional review. We also considered options for 
a more limited review, including requiring that internal uses for 
research using protected health information be reviewed by a designated 
privacy official or by an internal privacy committee. Another option 
that we considered would require covered entities to have an IRB or 
privacy board review their administrative procedures, either for 
research or more generally, but not to require such review for each 
research project. See the preamble section II.E.9.
    We are not recommending these approaches because we are concerned 
about applying fewer protections to subjects of private sector research 
than are applied to subjects of federally-funded research subject to 
Common Rule protections, where IRB review is required for internal 
research uses of protected health information. At the same time, we 
recognize that the proposed rule would place new requirements on 
research uses and disclosures for research projects not federally-
funded. We solicit comment on the approach that we are proposing, 
including on whether the benefits of the IRB or privacy board reviews 
would outweigh the burdens associated with

[[Page 59969]]

the proposed requirements. We also solicit comment on whether 
alternative approaches could adequately protect the privacy interests 
of research subjects. We are interested in the extent to which the 
proposed rule could affect the amount and quality of research 
undertaken by covered entities or by researchers receiving information 
from covered entities. People commenting on the proposed rule also may 
wish to address the appropriateness of applying different procedures or 
different levels of protection to federally and nonfederally-funded 
research. We would note that, as discussed below, privacy boards or 
IRBs could adopt procedures for ``expedited review'' similar to those 
provided in the Common Rule (Common Rule Sec. ____.110) for review of 
records research that involves no more than minimal risk. The 
availability of expedited review may affect the burden associated with 
the proposed approach.
    ii. Documentation of privacy board approval. We considered several 
options for applying Common Rule principles to research not reviewed by 
Common Rule IRBs through imposing requirements on covered entities. We 
chose the use of the privacy board because it gives covered entities 
the maximum flexibility consistent with protecting research subjects. 
Under this approach, each covered entity that wants to use or disclose 
protected health information for research without individual 
authorization could obtain the required documentation directly from an 
existing privacy board, an internal privacy board created by the 
covered entity, or from a privacy board used by the researcher.
    We considered prohibiting disclosure of protected health 
information for research unless covered entities enter into contracts, 
enforceable under law, which would require the researcher to meet the 
review criteria. Under this approach, the covered entity would be 
required to enter into a contract with the researcher in order to be 
permitted to disclose protected health information without individual 
authorization. In the contract, the researcher would agree to meet the 
criteria described below, as well as the additional restrictions on 
reuse and disclosure and the physical safeguards (also described 
below), in exchange for obtaining the information from the covered 
entity.
    We did not adopt this approach because of the potentially 
burdensome administrative costs that could stem from the need to 
negotiate the contracts and ensure that they are legally enforceable 
under law. In addition, the covered entity may have little incentive to 
enforce these contracts. However, we seek comments on whether the 
benefits of this approach outweigh the burdens, whether we could expect 
the burdens to be eased by the development of model contracts by local 
universities or professional societies, and whether covered entities 
could be expected to enforce these contracts. We also seek comments on 
whether covered entities could be given a choice between the 
documentation approach proposed in this NPRM and a contract approach. 
We are particularly interested in comments on this approach, because it 
appears to be the only mechanism for including restrictions on reuse 
and disclosure by researchers in this proposed rule.
    iii. Use of boards that are not IRBs. The Secretary's 
Recommendations state that privacy protections for private sector 
records research should be modeled on the existing Common Rule 
principles. The cornerstone of the Common Rule approach to waiver of 
authorization is IRB approval. At the same time, we understand that 
Common Rule IRBs are not the only bodies capable of performing an 
appropriate review of records research protocols. In working with the 
Congress to develop comprehensive privacy legislation, we have explored 
the use of limited purpose privacy boards to review research involving 
use or disclosure of health information. If the review criteria and 
operating rules of the privacy board are sufficiently consistent with 
the principles stated in the Secretary's Recommendations to afford the 
same level of protection, there would be no need to insist that the 
review board be a formal Common Rule IRB.
    Among the Common Rule requirements for IRB membership, as stated in 
45 CFR 46.107, are the following:
     Each IRB must have members with varying backgrounds and 
appropriate professional competence as necessary to review research 
protocols.
     Each IRB must include at least one member who is not 
affiliated with the institution or related to a person who is 
affiliated with the institution.
     No IRB member may participate in review of any project in 
which the member has a conflict of interest.
    We propose to require that a covered entity could not use or 
disclose protected health information for research without individual 
authorization if the board that approved the waiver of authorization 
does not meet these three criteria.
    We considered applying the additional criteria for IRB membership 
stated in the Common Rule. However, many of the additional criteria are 
relevant to research generally, but less relevant for a board whose 
sole function is to review uses or disclosures of health information. 
In addition, the Common Rule IRB membership criteria are more detailed 
than the criteria for privacy board membership we propose here. Since 
our legislative authority reaches to covered entities, but not to the 
privacy board directly, we decided that imposing additional or more 
detailed requirements on privacy boards would impose added burdens on 
covered entities that did not clearly bring concomitant increases in 
patient protections. We continue to support more complete application 
of Common Rule criteria directly to these privacy boards through 
federal legislation. We believe the approach we propose here strikes 
the appropriate balancing between protecting individuals' privacy 
interests and keeping burdens on covered entities to a minimum.
    d. Criteria. In Sec. 164.510(j)(2)(iii), we propose to prohibit the 
use or disclosure of protected health information for research without 
individual authorization unless the covered entity has documentation 
indicating that the following criteria are met:
     The use or disclosure of protected health information 
involves no more than minimal risk to the subjects;
     The waiver or alteration will not adversely affect the 
rights and welfare of the subjects;
     The research could not practicably be carried out without 
the waiver or alteration;
     Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation;
     The research would be impracticable to conduct without the 
protected health information;
     The research project is of sufficient importance to 
outweigh the intrusion into the privacy of the individual whose 
information would be disclosed;
     There is an adequate plan to protect the identifiers from 
improper use and disclosure; and
     There is an adequate plan to destroy the identifiers at 
the earliest opportunity consistent with conduct of the research, 
unless there is a health or research justification for retaining the 
identifiers.
    The first four criteria are in the Common Rule. (The Common Rule 
Sec. ____.116(d)).4 These criteria were

[[Page 59970]]

designed for research generally, and not specifically to protect 
individuals' privacy interests regarding medical records research. For 
this reason, the Secretary's Recommendations include the last four 
criteria, which were developed specifically for research on medical 
records.
---------------------------------------------------------------------------

    \4\ It should be noted that for the Department of Defense, 10 
U.S.C. 980 prohibits the waiver of informed consent. Only those 
studies that qualify for exemption per 45 CFR 46.101(b), or studies 
that do not meet the 45 CFR part 46 definition of human subjects 
research can be performed in the absence of a process to provide 
informed consent to prospective subjects. This proposed rule would 
not affect DOD's implementation of 10 U.S.C. 980.
---------------------------------------------------------------------------

    As part of the IRB or privacy board's review of the use of 
protected health information under the research protocol, we assume 
that in case of a clinical trial, it would also review whether any 
waiver of authorization could also include waiver of the subject's 
right of access to such information during the course of the trial. See 
Sec. 164.514(b)(iv).
    We recognize that the fourth criterion may create awkward 
situations for some researchers. Where authorization has been waived, 
it may be difficult to later approach individuals to give them 
information about the research project. However, in some cases the 
research could uncover information that would be important to provide 
to the individual (e.g., the possibility that they are ill and should 
seek further examination or treatment). For this reason, we are 
including this criterion in the proposed rule.
    We also recognize that the fifth criterion, which would ask the 
board to weigh the importance of the research against the intrusion of 
privacy, would require the board to make a more subjective judgment 
than that required by the other criteria. This balancing, we feel, goes 
to the heart of the privacy interest of the individual. We understand, 
however, that some may view this criterion as a potential impediment to 
certain types of research. We solicit comment on the appropriateness of 
the criterion, the burden it would place on privacy boards and IRBs, 
and its potential effects on the ability of researchers to obtain 
information for research.
    The Secretary's Recommendations propose that a researcher who 
obtains protected health information this way should be prohibited from 
further using or disclosing it except when necessary to lessen a 
serious and imminent threat to the health or safety of an individual or 
to the public health, or for oversight of the research project, or for 
a new research project approved by an IRB or similar board. In addition 
the Recommendations propose an obligation on researchers to destroy the 
identifiers unless an IRB or similar board determines that there is a 
research or health justification for retaining them and an adequate 
plan to protect them from improper disclosure.
    We do not have the authority under HIPAA to place such requirements 
directly on researchers. While criteria to be met in advance can be 
certified in documentation through board review of a research protocol, 
a board would have no way to assess or certify a researcher's behavior 
after completion of the protocol (e.g., whether the researcher was 
engaging in improper reuse or disclosure of the information, or whether 
the researcher had actually destroyed identifiers). We instead propose 
to require the researcher to show a plan for safeguarding the 
information and destroying the identifiers, which the privacy board or 
IRB can review and evaluate in determining whether the requested 
disclosure is proper. We solicit comment on how to include ongoing 
protections for information so disclosed under this legislative 
authority without placing excessive burdens on covered entities.
    We note that privacy boards or IRBs could adopt procedures for 
``expedited review'' similar to those provided in the Common Rule 
(Common Rule Sec. ______.110) Under the Common Rule's expedited review 
procedure, review of research that involves no more than minimal risk, 
and involves only individuals' medical records may be carried out by 
the IRB chairperson or by one or more reviewers designated by the 
chairperson from among the members of the IRB. The principle of 
expedited review could be extended to other privacy boards for 
disclosures for records-based research. Like expedited review under the 
Common Rule, a privacy board could choose to have one or more members 
review the proposed research.
    e. Additional provisions of this proposed rule affecting research.
    i. Research including health care.
    To the extent that the researcher studying protected health 
information is also providing treatment as defined in proposed 
Sec. 164.504, such as in a clinical trial, the researcher would be a 
covered health care provider for purposes of that treatment, and would 
be required to comply with all the provisions of this rule applicable 
to health care providers.
    ii. Individual access to research information.
    The provisions of Sec. 164.514 of this proposed rule, regarding 
individual access to records, would also apply where the research 
includes the delivery of health care. We are proposing an exception for 
clinical trials where the information was obtained by a covered 
provider in the course of a clinical trial, the individual has agreed 
to the denial of access when consenting to participate in the trial (if 
the individual's consent to participate was obtained), and the trial is 
in still in progress.
    iii. Research on records of deceased persons.
    In Sec. 164.506(f), we propose that, unlike the protections 
provided by the remainder of this rule, the protections of this 
proposed rule will end at the death of the subject for the purpose of 
disclosure of the subject's information for research purposes. In 
general, this proposed rule would apply to the protected health 
information of an individual for two years after the individual's 
death. However, requiring IRB or privacy board review of research 
studies that use only health information from deceased persons would be 
a significant change from the requirements of the Common Rule, which 
apply to individually identifiable information about living individuals 
only. In addition, some of the Common Rule criteria for waiver of 
authorization are not readily applicable to deceased persons. To avoid 
a conflict between Common Rule requirements and the requirements of 
this proposed rule, we are proposing that the protections of this 
proposed rule end at the death of the subject for the purpose of 
disclosure of the subject's information for research purposes.
    iv. Verification.
    In Sec. 164.518(c), we propose to require covered entities to 
verify the identity of most persons making requests for protected 
health information and, in some cases, the legal authority behind that 
request. For disclosures of protected health information for research 
purposes under this subsection, the required documentation of IRB or 
privacy board approval would constitute sufficient verification. No 
additional verification would be necessary under Sec. 164.518(c).
    f. Application to research covered by the Common Rule. Some 
research projects would be covered by both the Common Rule and the 
HIPAA regulation. This proposed rule would not override the Common 
Rule. Thus, where both the HIPAA regulation and the Common Rule would 
apply to research conducted by a covered entity, both sets of 
regulations would need to be followed. Because only half of the 
substantive criteria for board approval proposed in this rule are 
applied by IRBs today, this would entail new responsibilities for IRBs 
in these situations. However, we believe that the additional burden 
would be minimal, since the IRBs will already be reviewing the research 
protocol, and will be asked

[[Page 59971]]

only to assess the protocol against some additional criteria. This 
burden is justified by the enhancement of privacy protections gained by 
applying rules specifically designed to protect the subjects of medical 
records research.
    We considered excluding research covered by the Common Rule from 
the provisions of this proposed rule. We rejected this approach for two 
reasons. First, the additional proposed requirements applied through 
HIPAA are specifically designed to protect the privacy interests of the 
research subjects, and the small additional burden on IRBs would be 
outweighed by the improved protections for individuals. Second, such an 
approach would allow federally-funded research to proceed under fewer 
restrictions than privately funded research. We believe that the source 
of funding of the research should not determine the level of protection 
afforded to the individual.
    We note that the definition of ``identifiable'' information 
proposed in Sec. 164.504 of this rule differs from the interpretation 
of the term under the Common Rule. In particular, if a covered entity 
encodes identifiers as required under Sec. 164.506(d) before 
undertaking a disclosure of health information for research purposes, 
the requirements of this section would not apply. However, the encoded 
information would still be considered ``identifiable'' under the Common 
Rule and therefore may fall under the human subjects regulations.
    g. Obtaining the individual's authorization for research use or 
disclosure of protected health information. If a covered entity chooses 
to obtain individual authorization for use or disclosure of information 
for research, the requirements applicable to individual authorizations 
for release of protected health information would apply. These 
protections are described in Sec. 164.508.
    For research projects to which both the Common Rule and this 
proposed rule would apply, both sets of requirements for obtaining the 
authorization of the subject for research would apply. As with criteria 
for waiver of authorization, this proposed rule would impose 
requirements for obtaining authorization that are different from Common 
Rule requirements for obtaining consent. In particular, the regulation 
would require more information to be given to individuals regarding who 
could see their information and how it would be used. For the reasons 
explained above, we are proposing that both sets of requirements apply, 
rather than allow federally-funded research to operate with fewer 
privacy protections than privately-funded research.
    h. Need to assess the Common Rule. In general, the Common Rule was 
designed to protect human subjects participating in research projects 
from physical harm. It was not specifically designed to protect an 
individual's medical records when used for research. For research in 
which only the medical information of the human subject is used, i.e., 
records research, there are several ways in which the Common Rule 
protections could be enhanced.
    In developing these proposed regulations, and in reviewing the 
comprehensive medical privacy legislation pending before Congress, it 
has become clear that the Department's human subject regulations (45 
CFR part 46, 21 CFR part 50, and 21 CFR part 56) may not contain all of 
the safeguards necessary to protect the privacy of research 
participants. Because the source of research funding should not dictate 
the level of privacy protection afforded to a research subject, the 
Secretary of HHS will immediately initiate plans to review the 
confidentiality provisions of the Common Rule.
    To further that process, we solicit comments here on how Common 
Rule protections for the subjects of records review should be enhanced. 
For example, we will consider the adequacy of the Common Rule's 
provisions regarding conflict of interest, expedited review, exemptions 
(such as the exemption for certain research on federal benefits 
programs), deceased subjects, and whether IRB's should place greater 
emphasis on confidentiality issues when reviewing research protocols. 
We also seek comment on whether the Common Rule requirements for 
obtaining consent for records research should be modified to reflect 
the specific risks entailed in such research.
    In addition, because seventeen other Departments and Agencies are 
signatories to the Common Rule and each has its own human subject 
regulations, the Secretary of HHS will consult with these Departments 
and Agencies regarding potential changes to the Common Rule.
10. Uses and Disclosures in Emergency Circumstances  (Sec. 164.510(k))
    [Please label comments about this section with the subject: 
``Emergency circumstances'']
    In Sec. 164.510 (k), we propose to permit covered entities to use 
or disclose protected health information in emergencies, consistent 
with applicable law and standards of ethical conduct, based on a 
reasonable belief that the use or disclosure is necessary to prevent or 
lessen a serious and imminent threat to the health or safety of any 
person or the public.
    a. Importance of emergency response and the need for protected 
health information. Circumstances could arise that are not otherwise 
covered in the rules proposed in Secs. 164.510(b) and 164.510(f) for 
law enforcement and public health, where covered entities may need to 
disclose protected health information to prevent or lessen a serious 
and imminent threat of harm to persons or the public. Persons at risk 
include the individual who is the subject of the protected health 
information as well as others. Through their professional activities, 
covered entities, particularly health care providers, may obtain 
information that leads them to believe that an individual is at risk of 
harm to him or herself, or poses a threat to others. This information 
could be needed by emergency and first responders (including law 
enforcement officials) to deal with or prevent an emergency situation 
posing a serious and imminent threat of harm to such persons or the 
public.
    b. Proposed requirements. We would permit covered entities, 
consistent with applicable law and standards of ethical conduct, to 
disclose protected health information based on a reasonable belief that 
the disclosure is necessary to prevent or lessen a serious and imminent 
threat to the health or safety of a person or the public. Covered 
entities would only be permitted to make such disclosures to persons 
who are reasonably able to prevent or lessen the threat, including to 
the target of the threat.
    Anticipating all circumstances under which emergency disclosure 
could be necessary is not possible. This section must be stated in 
somewhat general terms. We intend to permit covered entities to respond 
to emergency requests for protected health information, where it is 
reasonable for the covered entity to believe that such disclosure would 
prevent or reduce a serious emergency situation. Such emergencies may 
threaten a single person or the general public. We do not intend to 
permit disclosure of protected health information in response to 
hypothetical scenarios or potential emergencies that are not imminent 
and serious. This permitted disclosure would be narrow; it should not 
become a loophole for disclosures not permitted by the other provisions 
of the proposed rule.

[[Page 59972]]

    This provision would permit disclosure of relevant information in 
response to credible requests from law enforcement, public health, or 
other government officials. The covered entity would be permitted to 
reasonably rely on credible representations that an emergency exists 
and that protected health information could lessen the threat. If the 
disclosure was made in a good faith belief that these circumstances 
exist, it would be lawful under this section. A covered entity could 
also disclose protected health information on its own initiative if it 
determined that the disclosure were necessary, consistent with other 
applicable legal or ethical standards. Our proposed rule is intended to 
permit such disclosures where they are otherwise permitted by law or 
ethical standards. We do not intend to permit disclosures by health 
care providers or others that are currently prohibited by other law or 
ethical standards.
    Disclosure for emergency circumstances could be authorized by 
statute or common law and could also be addressed in medical 
professional ethics and standards. For example, the American Medical 
Association Principles of Medical Ethics on Confidentiality provides 
that:

    [T]he obligation to safeguard patient confidences is subject to 
certain exceptions that are ethically and legally justified because 
of overriding social consideration. Where a patient threatens to 
inflict serious bodily harm to another person or to him or herself 
and there is a reasonable probability that the patient may carry out 
the threat, the physician should take reasonable precautions for the 
protection of the intended victim, including notification of law 
enforcement authorities.

    The duty to warn third persons at risk has been addressed in court 
cases, and the provision proposed permits disclosures in accord with 
such legal duties. The leading case on this issue is Tarasoff v. 
Regents of the University of California, 17 Cal. 3d 425 (1976). In that 
case, a therapist's patient made credible threats against the physical 
safety of a specific person. The Supreme Court of California found that 
the therapist involved in the case had an obligation to use reasonable 
care to protect the intended victim of his patient against danger, 
including warning the victim of the peril. Many States have adopted 
(judicially or legislatively) versions of the Tarasoff duty to warn, 
but not all States have done so. This proposed rule is not intended to 
create a duty to warn or disclose but would simply permit the 
disclosure under the emergency circumstances consistent with other 
applicable legal or ethical standards.
    An emergency disclosure provision does present some risks of 
improper disclosure. There will be pressures and uncertainties when 
disclosures are requested under emergency circumstances, and decisions 
must often be made instantaneously and without the ability to seek 
individual authorization or to perform complete verification of the 
request. We believe that this risk would be warranted when balancing 
the individual's interest in confidentiality against the societal 
interests to preserve life and protect public safety in those rare 
emergency circumstances where disclosure is necessary. A covered entity 
that makes a reasonable judgement under such pressure and discloses 
protected health information in good faith would not be held liable for 
wrongful disclosure if circumstances later prove not to have warranted 
the disclosure.
    We would also exempt emergency disclosures from provisions that 
allow individuals to request restrictions on uses and disclosures of 
their protected health information for treatment, payment and health 
care operations. In emergency situations, health care professionals 
need to have any information that will allow them to respond to the 
emergency circumstance, and cannot be expected to take the time to 
remind themselves of restrictions on particular information. See 
proposed Sec. 164.506(c).
11. Disclosure to Next-of-Kin  (Sec. 164.510(l))
[Please label comments about this section with the subject: ``Next-of-
kin'']
    In Sec. 164.510(l), we propose to require health care providers to 
obtain a verbal agreement from the individual before disclosing 
protected health information to next-of-kin, to other family members, 
or to others with whom the individual has a close personal 
relationship. Where it is not practical or feasible to request and 
obtain such verbal agreement, providers could disclose to next-of-kin, 
to other family members, or to others with whom an individual has a 
close personal relationship, protected health information that is 
directly relevant to the person's involvement in the individual's care, 
consistent with good professional health practice and ethics.
    a. Importance of disclosures to next-of-kin and the need for 
protected health information. In some cases, disclosure of protected 
health information to next-of-kin, to other relatives, or to persons 
with whom the individual has a close personal relationship and who are 
involved in caring for or helping the individual, can facilitate 
effective health care delivery. We do not intend to impede the 
disclosure of protected health information to relatives or friends when 
expeditious disclosure of such information clearly would be in the 
individual's best interest.
    b. Proposed requirements. We propose that when an individual has 
the capacity to make his or her own health decisions, providers could 
disclose protected health information to the individual's next-of-kin, 
to other relatives, or to persons with whom the individual has a close 
personal relationship, if the individual has verbally agreed to such 
disclosure. Verbal agreement could be indicated informally, for 
example, from the fact that the individual brought a family member or 
friend to the physician appointment and is actively including the 
family member or friend in the discussion with the physician. If, 
however, the situation is less clear and the provider is not certain 
that the individual intends for the family member or friend to be privy 
to protected health information about the individual, the provider 
would be required to ask the individual. In these cases, when verbal 
agreement can be obtained, that agreement would be sufficient 
verification of the identity of the person to meet the requirements of 
Sec. 164.518(c).
    We would also permit health care providers to disclose protected 
health information without verbal agreement to next-of-kin, to other 
relatives, or to persons with whom the individual has a close personal 
relationship, if such agreement cannot practicably or reasonably be 
obtained and the disclosure is consistent with good health professional 
practice and ethics. When verbal agreement cannot be obtained, the 
provider would be required to take reasonable steps to verify the 
identity of the family member or friend in order to meet the 
verification requirement under Sec. 164.518(c). Verbal inquiry would 
suffice; we would not require any specific type of identity check.
    We considered requiring a written authorization for each disclosure 
in these situations, but rejected that option because it is not 
practicable and does not provide sufficient additional privacy 
protection to justify the burden it would place on health care 
providers and individuals. Many of these conversations are unscheduled 
and of short duration, and requiring a written authorization may impede 
treatment and detain the individual. Therefore we would allow a one-
time verbal agreement and (where required) verification to suffice for 
disclosure of protected health information relevant to

[[Page 59973]]

the individual's care. For example, a health care provider could 
disclose protected health information about an individual's treatment 
plan to the individual's adult child who is taking the individual home 
from the hospital, if the provider has verbally requested and 
individual has agreed to providing the adult child with relevant 
information about aspects of the individual's health care. Disclosure 
also could be appropriate in cases where a verbal agreement cannot 
practicably be obtained. For example, a pharmacist could be guided by 
his or her professional judgment in dispensing a filled prescription to 
someone who claims to be picking it up on behalf of the individual for 
whom the prescription was filled.
    In such cases, disclosures would have to follow the ``minimum 
necessary'' provisions of proposed Sec. 164.506(b). For example, health 
care providers could not disclose without individual authorization 
extensive information about the individual's surgery or past medical 
history to the neighbor who is simply driving the individual home and 
has no need for this information. We request comment on this approach.
    The proposed definition of ``individual'' addresses related 
disclosures regarding minors and incapacitated individuals.
12. Additional Uses and Disclosures Required by Other Law  
(Sec. 164.510(n))
    [Please label comments about this section with the subject: 
``Additional uses and disclosures required by other law'']
    In Sec. 164.510(n) we propose to allow covered entities to use or 
disclose protected health information if such use or disclosure is not 
addressed elsewhere in Sec. 164.510, is required by other law, and the 
disclosure meets all the relevant requirements of such law.
    Other laws may require uses or disclosures of protected health 
information for purposes not captured by the other provisions of 
proposed Sec. 164.510. An example is State workers' compensation laws, 
which could require health care providers to disclose protected health 
information to a workers' compensation insurer or to an employer. 
Covered entities generally could make uses and disclosures required by 
such other laws.
    Where such a use or disclosure would also be addressed by other 
provisions of this regulation, the covered entity would also have to 
follow the requirements of this regulation. Where the provisions of the 
other law requirements are contrary to the provisions in this proposed 
rule and more protective of the individual's privacy, the provisions of 
the other law would generally control. See discussion in section II.I 
below.
    We have included this section because it is not our intention to 
obstruct access to information deemed important enough by other 
authorities to require it by law. We considered omitting this provision 
because we are concerned that we do not know enough about the required 
disclosures it would encompass, but decided to retain it in order to 
raise the issue of permitting disclosures for other, undetermined 
purposes. We solicit comment on the possible effects of omitting or 
narrowing this provision.
    Under this section, health care providers could make reports of 
abuse of any person that are required by State law. All States require 
reports of abuse. All States require reporting to child protective 
agencies of instances of child abuse or neglect that they identify, and 
most States require similar reports of abuse or neglect of elderly 
persons. These are valuable requirements which we support and 
encourage. The Act (in section 1178(b)) specifically requires that this 
regulation not interfere with State requirements for reporting of 
abuse. Additionally, all States require health care providers to report 
gunshot wounds and certain other health conditions related to violence; 
this provision would permit such reports.
    Section 164.518(c), requiring verification of the identity and 
legal authority of persons requesting disclosure of protected health 
information would apply to disclosures under Sec. 164.510(n). As noted 
above, we are not familiar with all of the disclosures of protected 
health information that are mandated by State law, so we cannot be 
certain that the verification requirements in Sec. 164.518(c) would 
always be appropriate. We solicit comments on whether those 
requirements would be appropriate for all disclosures that would be 
permitted here.
13. Application to Specialized Classes  (Sec. 164.510(m))
    In the following categories we propose use and disclosure 
provisions that respond to the unique circumstances of certain federal 
programs. We request comment on whether additional provisions are 
necessary to comply with the suitability and national security 
determination requirements of Executive Order 10450, as amended, and 
other national security laws.
    a. Application to military services.
    [Please label comments about this section with the subject: 
``Military services'']
    To address the special circumstances of the Armed Forces and their 
health care systems, we propose to permit military and other federal 
providers and health plans to use and disclose protected health 
information about active duty members of the Armed Forces for certain 
purposes, and to exclude from coverage under this rule health 
information about certain persons who receive care from military 
providers.
    i. Members of the Armed Forces.
    The primary purpose of the health care system of the military 
services differs in its basic character from that of the health care 
system of society in general. The special nature of military service is 
acknowledged by the Constitutional provision for separate lawmaking for 
them (U.S. Constitution, article I, section 8, clause 14) and in their 
separate criminal justice system under the Uniform Code of Military 
Justice (10 U.S.C. 801, et seq.).
    The military health care system, like other federal and civilian 
health care systems, provides medical care and treatment to its 
beneficiary population. However, it also serves a critical national 
defense purpose, ensuring that the Armed Forces are in a state of 
medical readiness to permit the discharge of those responsibilities as 
directed by the National Command Authority.
    The health and well-being of military members is key and essential. 
This is true whether such personnel are serving in the continental 
United States or overseas or whether such service is combat-related or 
not. In all environments, operational or otherwise, the Armed Forces 
must be assured that its personnel are medically qualified to perform 
their responsibilities. This is critical as each and every person 
performs a vital service upon which others must rely in executing a 
specified defense requirement. Unqualified personnel not only 
jeopardize the possible success of an assignment or operation, but they 
pose an undue risk and danger to others.
    To assure that such persons are medically fit, health information 
is provided to proper command authorities regarding military members 
performing certain critical functions for medical screening and other 
purposes so that determinations can be made regarding the ability of 
such personnel to perform assigned duties. For example, health 
information is provided regarding:

[[Page 59974]]

     A pilot receiving medication that may affect alertness;
     An Armed Forces member with an intolerance for a vaccine 
necessary for deployment to certain geographical areas;
     Any significant medical or psychological changes in a 
military member who is a member of the Nuclear Weapons Personnel 
Reliability Program;
     A military recruit or member with an illness or injury 
which disqualifies him or her from military service;
     Compliance with controlled substances policies.
    The military and the Coast Guard obtain such information from their 
own health care systems, as well as from other agencies that provide 
health care to service members, such as the Department of 
Transportation (DOT), which is responsible for the United States Coast 
Guard and other federal agencies which provide medical care to members 
of the Armed Forces (e.g., the Department of State (DOS) provides such 
care to military attaches and Marine security personnel assigned to 
embassies and consulates overseas, the Department of Veterans Affairs 
provides care in certain areas of the country or in cases involving 
specialized services). Other health care providers could also provide 
information, for example, when a private sector physician treats a 
member injured in an accident.
    The special needs of the DOD and DOT for accessing information for 
purposes other than treatment, payment or health care operations were 
recognized in the Secretary's Recommendations. We considered several 
options for accommodating the unique circumstances of a military health 
care environment. We considered providing special rule-making authority 
to the DOD and other federal agencies which provide care to members of 
the military, but HIPAA does not allow for such delegation by the 
Secretary of HHS. Therefore, we propose that health care providers and 
health plans of the DOD, the DOT, the DOS, the Department of Veterans 
Affairs as well as any other person or entity providing health care to 
Armed Forces personnel, could use or disclose protected health 
information without individual authorization for activities deemed 
necessary by appropriate military command authorities to assure the 
proper execution of the military mission.
    The appropriate military command authorities, the circumstances in 
which use or disclosure without individual authorization would be 
required, and the activities for which such use or disclosure would 
occur in order to assure proper execution of the military mission, 
would be identified through Federal Register notices promulgated by the 
DOD or the DOT (for the Coast Guard). The verification requirements in 
Sec. 164.518(c) would apply to disclosures permitted without 
authorization.
    This proposal would not confer authority on the DOD or the DOT to 
enact rules which would permit use or disclosure of health information 
that is restricted or controlled by other statutory authority.
    ii. Foreign diplomatic and military personnel.
    The Department of Defense, as well as other federal agencies, 
provide medical care to foreign military and diplomatic personnel, as 
well as their dependents. Such care is provided pursuant to either 
statutory authority (e.g., 10 U.S.C. 2549) or international agreement. 
The care may be delivered either in the United States or overseas. 
Also, where health care is provided in the United States, it may be 
furnished by non-government providers when government delivered care is 
not available or the beneficiary elects to obtain private as opposed to 
government health care. Examples include:
     Foreign military personnel being trained, or assigned to 
U.S. military organizations, in the United States who receive care from 
either government or private health care providers;
     The DOD operated medical clinic which provides care to all 
allied military and diplomatic personnel assigned to NATO SHAPE 
Headquarters in Brussels, Belgium;
     The DOS, which also is engaged in arranging health care 
for foreign diplomatic and military personnel and their families, could 
also have legitimate needs for information concerning the health 
services involved.
    We believe that the statute was not intended to cover this unique 
class of beneficiaries. These persons are receiving U.S., either 
private or governmental, furnished health care, either in the United 
States or overseas, because of the beneficiary's military or diplomatic 
status. For such personnel, we believe that the country-to-country 
agreements or federal statutes which call for, or authorize, such care 
in furtherance of a national defense or foreign policy purpose should 
apply. We propose to exclude foreign military and diplomatic personnel 
and their dependents who receive health care provided by or paid for by 
the DOD or other federal agency, or by an entity acting on its behalf 
pursuant to a country-to-country agreement or federal statute, from the 
definition of an ``individual'' in Sec. 164.504. Therefore, the health 
information created about such persons by a DOD or other federal agency 
health care provider would not be protected under this rule. However, 
information created about such persons by covered health care providers 
whose services are not paid for by or provided on behalf of a federal 
agency would be protected health information.
    iii. Overseas foreign national beneficiaries.
    The Department of Defense, as well as other federal agencies and 
U.S.-based non-governmental organizations, provide health care to 
foreign nationals overseas incident to U.S. sponsored missions or 
operations. Such care is provided pursuant to federal statute, 
international agreement, international organization sponsorship, or 
incident to military operations (including humanitarian and 
peacekeeping operations). Examples include:
     The DOD provides general health care to an indigenous 
population incident to military deployment;
     The DOD provides health care to captured and detained 
personnel as a consequence of overseas combat operations. Such care is 
mandated by international agreement, i.e., the Geneva Conventions. The 
most recent example involves the surrender or capture of Iraqi soldiers 
during the conduct of Operation Desert Storm;
     A number of federal agencies and non-governmental 
organizations provide health care services as part of organized 
disaster relief or other humanitarian programs and activities around 
the world.
    We believe that the statute did not contemplate these unique 
beneficiary populations. Under circumstances where healthcare is being 
furnished to foreign nationals incident to sanctioned U.S. activities 
overseas, application of these proposed rules could have the unintended 
effect of impeding or frustrating the conduct of such activities, and 
producing incongruous results. Examples include:
     Requiring preparation of a notice advising the local 
population of the information practices of the DOD incident to 
receiving free medical care as part of disaster relief.
     Medical information involving a prisoner of war could not 
be disclosed, without the prisoner's consent, to U.S. military 
authorities who have responsibility for operating the POW camps.
    Therefore, we propose to exclude overseas foreign national 
beneficiaries of health care provided by the DOD or other federal 
agency, or by non-governmental organizations acting on behalf of a 
federal agency, from the

[[Page 59975]]

definition of an individual. This exclusion would mean that any health 
information created when providing health care to this population would 
not be protected health information and therefore not covered by these 
rules.
    iv. Disclosure to the Department of Veterans Affairs.
    Upon completion of an individual's military service, the DOD 
routinely transfers that person's entire military service record, 
including protected health information, to the Department of Veterans 
Affairs so the file can be retrieved quickly if the individual or his/
her dependents apply for veterans benefits. This practice was initiated 
in an effort to expedite veterans benefits eligibility determinations 
by ensuring timely access to complete, accurate information on the 
veteran's military service. Under the proposed rule, the transfer of 
these files would require individual authorization if protected health 
information is included. While this change could increase the time 
necessary for benefits processing in some cases, we believe the privacy 
interests outweigh the related administrative challenges. We invite 
comment on whether our assessment of costs and benefits is accurate. We 
also invite comment on alternative methods for ensuring privacy while 
expediting benefits processing.
    b. Application to the Department of Veterans Affairs.
    [Please label comments about this section with the subject: 
``Department of Veterans Affairs'']
    We propose to permit protected health information to be used 
without individual authorization by and among components of the 
Department of Veterans Affairs that determine eligibility for or 
entitlement to, or that provide, benefits under laws administered by 
the Secretary of Veterans Affairs.
    This exemption recognizes that the Veterans Administration is two 
separate components: The Veterans Health Administration (which operates 
health care facilities) and the Veterans Benefits Administration (which 
operates the Veterans disability program). The close integration of the 
operations of the two components may make requiring individual 
authorizations before transferring protected health information 
particularly disruptive. Further, the Veterans Health Administration 
transfers medical information on a much larger scale than most other 
covered entities, and requiring individual authorization for transfers 
among components could compromise the Department of Veterans Affairs' 
ability to fulfill its statutory mandates.
    Nonetheless, we invite comments on this approach. In particular, we 
are interested in whether the requirement for individual authorization 
for disclosure of medical records for use in benefits calculations 
would increase privacy protections for veterans, or whether it would be 
of questionable value since most veterans would authorize disclosure if 
it were tied to their benefits. We also are interested in comments on 
whether the proposed approach would unreasonably hamper the Department 
of Veterans Affairs in its ability to make accurate benefits 
determinations in cases in which individuals chose not to authorize 
disclosure.
    c. Application to the Department of State.
    [Please label comments about this section with the subject: 
``Department of State'']
    We propose to permit the Department of State to use and disclose 
protected health information for certain purposes unrelated to its role 
as a health care provider but necessary for the achievement of its 
mission.
    i. Importance of Foreign Service determinations and the need for 
protected health information.
    The Secretary of State administers and directs the Foreign Service. 
As contemplated in the Foreign Service Act, the Foreign Service is ``to 
serve effectively the interests of the United States'' and ``provide 
the highest caliber of representation in the conduct of foreign 
affairs;'' members of the Foreign Service are to be available to serve 
in assignments throughout the world. As called for under the Foreign 
Service Act, the DOS has established a health care program to promote 
and maintain the physical and mental health of members of the Service 
and that of other Government employees serving abroad under chief of 
mission authority, as well as accompanying family members. The DOS 
provides health care services to thousands of Foreign Service officers, 
other government employees and their families serving abroad, many of 
whom are frequently changing posts or assignments.
    Worldwide availability for service is a criterion for entrance into 
the Foreign Service, so that applicants with conditional offers of 
employment must undergo medical clearance examinations to establish 
their physical fitness to serve in the Foreign Service on a worldwide 
basis prior to entrance into the Foreign Service. Employees and 
accompanying family members also must be medically cleared before 
assignments overseas, to preclude assignment to posts where existing 
medical conditions would be exacerbated or where resources to support 
an existing medical condition are inadequate.
    The DOS uses protected health information gained through its role 
as a health care provider to fulfill its other responsibilities. The 
information is used to make medical clearance and fitness decisions as 
well as other types of determinations requiring medical information 
(such as fitness for duty or eligibility for disability retirement of 
Foreign Service members). Such information is also used to determine 
whether to immediately evacuate an individual for evaluation or 
treatment, or to determine whether to allow an employee or family 
member to remain in a position or at post abroad. An individual's 
record can include medical information provided to the DOS with the 
individual's authorization by outside health care providers, protected 
health information about treatment provided or paid for by the DOS, and 
medical information collected from non-treatment processes such as the 
clearance process.
    ii. Proposed requirements.
    We are proposing to exempt the DOS from the requirement to obtain 
individual authorization (Sec. 164.508) in order to use or disclose 
protected health information maintained by its health care program in 
certain cases. Specifically, the exemption would apply to the 
disclosure or use of protected health information of the following 
individuals for the following purposes: (1) Of applicants to the 
Foreign Service for medical clearance determinations of physical 
fitness to serve in the Foreign Service on a worldwide basis, 
including: medical and mental conditions limiting assignability abroad; 
conformance to occupational physical standards, where applicable; and 
suitability;
    (2) of members of the Foreign Service and other United States 
Government employees assigned to serve abroad under Chief of Mission 
authority, for (a) medical clearance determinations for assignment to 
posts abroad, including: medical and mental conditions limiting such 
assignment; conformance to occupational physical standards, where 
applicable; continued fitness for duty, suitability, and continuation 
of service at post (including decisions on curtailment); (b) separation 
medical examinations; and (c) determinations of eligibility of members 
of the Foreign Service for disability retirement (whether on 
application of the employee or the Secretary);

[[Page 59976]]

    (3) of eligible family members of Foreign Service or other United 
States Government employees, for medical clearance determinations like 
those described in (2) above to permit such family members to accompany 
employees to posts abroad on Government orders, as well as 
determinations regarding family members remaining at post and 
separation medical examinations.
    The proposed exemption is intended to maintain the DOS's procedures 
regarding internal of medical information in conformance with the 
Privacy Act of 1974, as amended, and 42 CFR Part 2, which would 
continue to apply to the DOS. The verification requirements of 
Sec. 164.518(c) would apply to these disclosures.
    The DOS is considering the need to add national security 
determinations under Executive Order 10450, as amended, and other 
suitability determinations to the exempted purposes listed above. We 
therefore request comment as to the purposes for which use or 
disclosure of protected health information without individual 
authorization by the DOS would be appropriate.
    d. Application to employees of the intelligence community.
    [Please label comments about this section with the subject: 
``Intelligence community'']
    We propose to permit covered entities to disclose protected health 
information about individuals who are employees of the intelligence 
community (as defined in Section 4 of the National Security Act, 50 
U.S.C. 401a), and their dependents, to intelligence community agencies 
without individual authorization when authorized by law.
    This provision addresses the special circumstances of the national 
intelligence community. The preservation of national security depends 
to a large degree on the health and well-being of intelligence 
personnel. To determine fitness for duty, including eligibility for a 
security clearance, these agencies must have continued access to the 
complete health records of their employees. To ensure continued fitness 
for duty, it is critical that these agencies have access to the entire 
medical record on a continuing basis. An incomplete medical file that 
excluded mental health information, for instance, could result in an 
improper job placement and a potential breach in security.
    The term ``intelligence community'' is defined in section 4 of the 
National Security Act, 50 U.S.C. 401a, to include: the Office of the 
Director of Central Intelligence, which shall include the Office of the 
Deputy Director of Central Intelligence, the National Intelligence 
Council (as provided for in 50 U.S.C. 403-5(b)(3) [1]), and such other 
offices as the Director may designate; the Central Intelligence Agency; 
the National Security Agency; the Defense Intelligence Agency; the 
National Imagery and Mapping Agency; the National Reconnaissance 
Office; other offices within the DOD for the collection of specialized 
national intelligence through reconnaissance programs; the intelligence 
elements of the Army, the Navy, the Air Force, the Marine Corps, the 
Federal Bureau of Investigation, the Department of the Treasury, and 
the Department of Energy; the Bureau of Intelligence and Research of 
the Department of State; and such other elements of any other 
department or agency as may be designated by the President, or 
designated jointly by the Director of Central Intelligence and the head 
of the department or agency concerned, as an element of the 
intelligence community.
    We would permit covered entities to disclose protected health 
information concerning employees of the intelligence community and 
their dependents where authorized by law. The verification requirements 
of Sec. 164.518(c) would apply to these disclosures.

F. Rights of individuals.

    [Please label comments about this section with the subject: 
``Introduction to rights of individuals'']
    The following proposed sections are intended to facilitate 
individual understanding of and involvement in the handling of their 
protected health information. Four basic individual rights would be 
created under this section: the right to a notice of information 
practices; the right to obtain access to protected health information 
about them; the right to obtain access to an accounting of how their 
protected health information has been disclosed; and the right to 
request amendment and correction of protected health information.
    The rights described below would apply with respect to protected 
health information held by health care providers and health plans. We 
are proposing that clearinghouses not be subject to all of these 
requirements. We believe that as business partners of covered plans and 
providers, clearinghouses would not usually initiate or maintain direct 
relationships with individuals. The contractual relationship between a 
clearinghouse (as a business partner) and a covered plan or provider 
would bind the clearinghouse to the notice of information practices 
developed by the plan or provider and it will include specific 
provisions regarding inspection, copying, amendment and correction. 
Therefore, we do not believe the clearinghouses should be required to 
provide a notice or provide access for inspection, copying, amendment 
or correction. We would require clearinghouses to provide an accounting 
of any disclosures for purposes other than treatment, payment and 
health care operations to individuals upon request. See proposed 
Sec. 164.515. It is our understanding that the vast majority of the 
clearinghouse function falls within the scope of treatment, payment, 
and health care operations and therefore we do not believe providing 
this important right to individuals will impose a significant burden on 
the industry. We invite comment on whether or not we should require 
clearinghouses to comply with all of the provisions of the individual 
rights section.
1. Rights and Procedures for a Written Notice of Information Practices. 
(Sec. 164.512)
    [Please label comments about this section with the subject: 
``Notice of information practices'']
    a. Right to a written notice of information procedures. We are 
proposing that individuals have a right to an adequate notice of the 
information practices of covered plans and providers. The notice would 
be intended to inform individuals about what is done with their 
protected health information and about any rights they may have with 
respect to that information. Federal agencies must adhere to a similar 
notice requirement pursuant to the Privacy Act of 1974 (5 U.S.C. 
552a(e)(3)).
    We are not proposing that business partners (including health care 
clearinghouses) be required to develop a notice of information 
practices because, under this proposed rule, they would be bound by the 
information practices of the health plan or health care provider with 
whom they are contracting.
    We considered requiring covered plans or providers to obtain a 
signed copy of the notice form (or some other signed indication of 
receipt) when they give the form to individuals. There are advantages 
to including such a requirement. A signed acknowledgment would provide 
evidence that the notice form has been provided to the individual. 
Further, the request to the individual to formally acknowledgment 
receipt would highlight the importance of the notice, providing 
additional encouragement for the individual to

[[Page 59977]]

read it and ask questions about its content.
    We are concerned, however, that requiring a signed acknowledgment 
would significantly increase the administrative and paperwork burden of 
this provision. We also are unsure of the best way for health plans to 
obtain a signed acknowledgment because plans often do not have face-to-
face contact with enrollees. It may be possible to collect an 
acknowledgment at initial enrollment, for example by adding an 
additional acknowledgment to the enrollment form, but it is less clear 
how to obtain it when the form is revised. We solicit comment on 
whether we should require a signed acknowledgment. Comments that 
address the relative advantages and burdens of such a provision would 
be most useful. We also solicit comment on the best way to obtain 
signed acknowledgments from health plans if such a provision is 
included in the final rule. We also solicit comments on other 
strategies, not involving signed acknowledgments, to ensure that 
individuals are effectively informed about the information practices of 
covered plans or providers.
    b. Revising the notice. We are proposing that covered plans and 
providers be permitted to change their policies and procedures at any 
time. Before implementing a change in policies and procedures, the 
covered plan or provider must revise its notice accordingly. However, 
where the covered plan or provider determines that a compelling reason 
exists to take an action that violates its notice, it may do so only if 
it documents the reason supporting the action and revises its notice 
within 30 days of taking such action. The distribution requirements 
that would apply when the notice has been materially revised are 
discussed in detail below.
    c. Content of the notice. In Sec. 164.512, we propose the 
categories of information that would be required in each notice of 
information practices, the specific types of information that would 
have to be included in each category, and general guidance as to the 
presentation of written materials. A sample notice is provided in the 
Appendix to this preamble. This sample notice is provided as an example 
of how the policies of a specific covered health care provider could be 
presented in a notice. Each covered health plan and health care 
provider would be required to create a notice that complies with the 
requirements of this proposed rule and reflects its own unique 
information practices. It does not indicate all possible information 
practices or all issues that could be addressed in the notice. Covered 
plans and providers may want to include significantly more detail, such 
as the business hours during which an individual could review their 
records or its standard time frame for responding to requests to review 
records; entities could choose to list all types of mandatory 
disclosures.
    In a separate section of this proposed rule, we would require 
covered plans or providers to develop and document policies and 
procedures relating to use, disclosure, and access to protected health 
information. See proposed Sec. 164.520. We intend for the documentation 
of policies and procedures to be a tool for educating the entity's 
personnel about its policies and procedures. In addition, the 
documentation would be the primary source of information for the notice 
of information practices. We intend for the notice be a tool for 
educating individuals served by the covered plan or provider about the 
information practices of that entity. The information contained in the 
notice would not be as comprehensive as the documentation, but rather 
provide a clear and concise summary of relevant policies and 
procedures.
    We considered prescribing specific language that each covered plan 
or provider would include in its notice. The advantages of this 
approach would be that the recipient would get exactly the same 
information from each covered plan or provider in the same format, and 
that it would be convenient for covered plans or providers to use a 
uniform model notice.
    There are, however, several disadvantages to this approach. First, 
and most important, no model notice could fully capture the information 
practices of every covered plan or provider. Large entities will have 
different information practices than small entities. Some health care 
providers, for example academic teaching hospitals, may routinely 
disclose identifiable health information for research purposes. Other 
health care providers may rarely or never make such disclosures. To be 
useful to individuals, each entity's notice of information practices 
should reflect its unique privacy practices.
    Another disadvantage of prescribing specific language is that it 
would limit each covered plan or provider's ability to distinguish 
itself in the area of privacy protections. We believe that if 
information on privacy protections were readily available, individuals 
might compare and select plans or providers based on their information 
practices. In addition, a uniform model notice could easily become 
outdated. As new communication methods or technologies are introduced, 
the content of the notices might need to reflect those changes.
    A covered plan or provider that adopts and follows the notice 
content and distribution requirements described below, we would 
presume, for the purposes of compliance, that the plan or provider has 
provided adequate notice. However, the proposed requirements for the 
content of the notice are not intended to be exclusive. Covered plans 
or providers could include additional information and additional 
detail, beyond that required. In particular, all federal agencies must 
still comply with the Privacy Act of 1974. For federal agencies that 
are covered plans or providers, this would mean that the notice must 
comply with the notice requirements provided in the Privacy Act as well 
as those included in this proposed rule.
    i. Uses and disclosures of protected health information. 
    In proposed Sec. 164.512, we would require each covered plan and 
provider to include in the notice an explanation of how it uses and 
discloses protected health information. The explanation must be 
provided in sufficient detail as to put the individual on notice of the 
uses and disclosures expected to be made of his or her protected health 
information. As explained above in section II.C.5, covered plans and 
providers may only use and disclose protected health information for 
purposes stated in this notice.
    This section of the notice might be as simple as a statement that 
information will be used and disclosed for treatment, payment, 
administrative purposes, and quality assurance. If the entity will be 
using or disclosing the information for other purposes, the notice must 
include a brief explanation. For example, some entities might include a 
statement that protected health information will be used for clinician 
education and disclosed for research purposes. We are soliciting 
comment on the level of detail that should be required in describing 
the uses and disclosures, specifically with respect to uses and 
disclosures for health care operations.
    In addition we would require that notices distinguish between those 
uses and disclosures the entity makes that are required by law and 
those that are permitted but not required by law. By distinguishing 
between uses and disclosures that an entity is required to make those 
that the entity is choosing to make, the notice would provide the

[[Page 59978]]

individual with a clearer understanding of the entity's privacy 
practices.
    For uses and disclosures required by law, the notice need only list 
the categories of disclosures that are authorized by law, and note that 
it complies with such requirements. This language could be the same for 
every covered entity within a State, territory or other locale. We 
encourage states, state professional associations, and other 
organizations to develop model language to assist covered plans or 
providers in preparing this section of the notice.
    For each type of permissible use or disclosure that the entity 
makes (e.g., research, public health, and next-of-kin), the notice 
would include a brief statement explaining the entity's policy with 
respect to that type of disclosure. For example, if all relevant laws 
permit health care providers to disclose protected health information 
to public health without individual authorization, the entity would 
need to develop policies and procedures regarding when and how it will 
make such disclosures. The entity would then document those policies 
and procedures as required by Sec. 164.520 and the notice would include 
a statement of these policies. For example, the notice might state ``we 
will disclose your protected health information to public health 
authorities upon request.''
    We considered requiring the notice to include not only a discussion 
the actual disclosure practices of the covered entity, but also a 
listing or discussion of all additional disclosures that are authorized 
by law. We considered this approach because, under this proposed rule, 
covered plans or providers would be permitted to change their 
information practices at any time, and therefore individuals would not 
be able to rely on the entity's current policies alone to understand 
how their protected health information may be used in the future. We 
recognize that in order to be fully informed, individuals need to 
understand when their information could be disclosed.
    We rejected this approach because we were concerned that a notice 
with such a large amount of information could be burdensome to both the 
individuals receiving the notices and the entities required to prepare 
and distribute them. There are a substantial number of required and 
permitted disclosures under State or other applicable law, and this 
rule generally would permit them to be made.
    Alternatively, we considered requiring that the notice include all 
of the types of permissible disclosures under this rule (e.g., public 
health, research, next-of-kin). We rejected that approach for two 
reasons. First, we felt that providing people with notice of the 
intended or likely disclosures of their protected health information 
was more useful than describing all of the potential types of 
disclosures. Second, in many States and localities, different laws may 
affect the permissible disclosures that an entity may make, in which 
case a notice only discussing permissible disclosures under the federal 
rule would be misleading. While it would be possible to require covered 
plans or providers to develop notices that discuss or list disclosures 
that would be permissible under this rule and other law, we were 
concerned that such a notice may be very complicated because of the 
need to discuss the interplay of federal, State or other law for each 
type of permissible disclosure. We invite comments on the best approach 
to provide most useful information to the individuals without 
overburdening either covered plans or providers or the recipients of 
the notices.
    In Sec. 164.520, we are proposing to require all covered entities 
to develop and document policies and procedures for the use of 
protected health information. The notice would simply summarize those 
documented policies and procedures and therefore would entail little 
additional burden.
    ii. Required statements.
    We are proposing that the notice include several basic statements 
to inform the individual of their rights and interests with respect to 
protected health information. First, we propose to require the notice 
to inform individuals that the covered plan or provider will not use or 
disclose their protected health information for purposes not listed in 
the notice without the individual's authorization. Individuals need to 
understand that they can authorize a disclosure of their protected 
health information and that the covered entity may request the 
individual to authorize a disclosure, and that such disclosures are 
subject to their control. The notice should also inform individuals 
that such authorizations can be revoked.
    Second, we propose that the notice inform individuals that they 
have the right to request that the covered plan or provider restrict 
certain uses and disclosures of protected health information about 
them. The notice would also inform individuals that the covered plan or 
provider is not required to agree to such a request.
    Third, we propose that the notice also inform individuals about 
their right of access to protected health information for inspection 
and copying and to an accounting of disclosures as provided in proposed 
Secs. 164.514 and 164.515. In addition, the notice would inform 
individuals about their right to request an amendment or correction of 
protected health information as proposed in Sec. 164.516. The notice 
would include brief descriptions of the procedures for submitting 
requests to the covered plan or provider.
    Fourth, the notice would be required to include a statement that 
there are legal requirements that require the covered plan or provider 
to protect the privacy of its information, provide a notice of 
information practices, and abide by the terms of that notice. 
Individuals should be aware that there are government requirements in 
place to protect their privacy. Without this statement, individuals may 
not realize that covered plans or providers are required to take 
measures to protect their privacy, and may therefore be less interested 
in pursuing their rights or finding out more information.
    Fifth, the notice would be required to include a statement that the 
entity may revise its policies and procedures with respect to uses or 
disclosures of protected health information at any time and that such a 
revision could result in additional uses or disclosures without the 
individual's authorization. The notice also should inform the 
individual how a revised notice would be made available when material 
revisions in policies and procedures are made. For example, when a 
provider makes a material change to its notice, proposed 
Sec. 164.512(e) would require the provider to post a new notice.
    Finally, we propose that the notice inform individuals that they 
have the right to complain to the covered entity and to the Secretary 
if they believe that their privacy rights have been violated.
    iii. Identification of a contact person for complaints and 
additional information.
    We propose that the notice be required to identify a contact person 
or office within the covered plan or provider to receive complaints, as 
provided in proposed Sec. 164.518(a)(2), and to help the individual 
obtain further information on any of the issues identified in the 
notice. A specific person would not need to be named in the notice. It 
could be an office or general number where someone who can answer 
privacy questions or concerns can be reached.
    In Sec. 164.518(d), we are proposing that covered plans and 
providers permit individuals to submit complaints to the covered 
entity. We are proposing that the contact person identified in the

[[Page 59979]]

notice be responsible for initially receiving such complaints. The 
contact person might or might not be responsible for processing and 
resolving complaints, but, if not, he or she would forward the 
complaints to the appropriate personnel or office. See discussion of 
the complaint process in section II.G.4, below.
    In addition to receiving complaints, the contact person would be 
able to help the individual obtain further information on any of the 
issues identified in the notice. The contact person would be able to 
refer to the documented policies and procedures required by proposed 
Sec. 164.520. We would not prescribe a formal method for responding to 
questions.
    The administrative requirements section below, proposed 
Sec. 164.518(a), would also require the entity to designate an official 
to develop policies for the use and disclosure of protected health 
information and to supervise personnel with respect to use and 
disclosure of protected health information. We would not require this 
official to also be the contact person. Depending on the size and 
structure of the entity, it might be appropriate to require one person 
to fill both roles.
    iv. Date the notice was produced.
    We are proposing that covered plans and providers include the date 
that the notice was produced on the face of the notice. We would also 
encourage the provider to highlight or otherwise emphasize any changes 
to help the individual recognize such changes.
    d. Requirements for distribution of the notice. It is critical to 
the effectiveness of this proposed rule that individuals be given the 
notice often enough to remind them of their rights, but without 
overburdening covered plans or providers. We propose that all covered 
plans and providers would be required to make their notice available to 
any individual upon request, regardless of whether the requestor is 
already a patient or enrollee. We believe that broad availability would 
encourage individuals or organizations to compare the privacy practices 
of plans or providers to assist in making enrollment or treatment 
choices. We also propose additional distribution requirements for 
updating notices, which would be different for health plans and health 
care providers. The requirements for health plans and health care 
providers are different because we recognize that they have contact 
with individuals at different points in time in the health care system.
    i. Health plans.
    We considered a variety of combinations of distribution practices 
for health plans and are proposing what we believe is the most 
reasonable approach. We would require health plans to distribute the 
notice by the effective date of the final rule, at enrollment, within 
60 days of a material change to the plan's information practices, and 
at least once every three years.
    We considered requiring health plans to post the notice either in 
addition to or instead of distribution. Because most individuals rarely 
visit the office of their health plan, we do not believe that this 
would be an effective means of communication. We also considered either 
requiring distribution of the notice more or less frequently than every 
three years. As compared to most health care providers, we believe that 
health plans often are larger and have existing administrative systems 
to cost effectively provide notification to individuals. Three years 
was chosen as a compromise between the importance of reminding 
individuals of their plans' information practices and the need to keep 
the burden health plans to the minimum necessary to achieve this 
objective. We are soliciting comment on whether requiring a notice 
every three years is reasonable for health plans.
    ii. Health care providers.
    We are proposing to require that covered health care providers 
provide a copy of the notice to every individual served at the time of 
first service delivery, that they post the notice in a clear and 
prominent location where it is reasonable to expect individuals seeking 
service from the provider to be able to read the notice, and that 
copies be available on-site for individuals to take with them. In 
addition, we are proposing to require that covered health care 
providers provide a copy of the notice to individuals they are 
currently serving at their first instances of service delivery within a 
year of the effective date of the final rule.
    We would not require health care providers to mail or otherwise 
disseminate their notices after giving the notice to individuals at the 
time of the first service delivery. Health care providers' patient 
lists may include individuals they have not served in decades. It would 
be difficult for providers to distinguish between ``active'' patients, 
those who are seen rarely, and those who have moved to different 
providers. While some individuals will continue to be concerned with 
the information practices of providers who treated them in the distant 
past, overall the burden of an active distribution requirement would 
not be outweighed by improved individual control and privacy 
protection.
    We recognize that some health care providers, such as clinical 
laboratories, pathologists and mail order pharmacies, do not have face-
to-face contact with individuals during service delivery. Such 
providers would be required to provide the required notice in a 
reasonable period of time following first service delivery, through 
mail, electronic notice (i.e. e-mail), or other appropriate medium. For 
example, a web-based pharmacy could meet this distribution requirement 
by providing a prominent and conspicuous link to its notice on its home 
page and by requiring review of that notice before processing an order.
    If a provider wishes to make a material change in the information 
practices addressed in the notice, it would be required to revise its 
notice in advance. After making the revision, the provider would be 
required to post the new notice promptly. We believe that this approach 
creates the minimum burden for health care providers consistent with 
giving individuals a clear source of accurate information.
    e. Plain language requirement. We are proposing to apply a plain 
language requirement to notices developed by covered plans or providers 
under these proposed rules. A covered plan or provider could satisfy 
the plain language requirement if it made a reasonable effort to: 
organize material to serve the needs of the reader; write sentences in 
the active voice, use ``you'' and other pronouns; use common, everyday 
words in sentences; write in short sentences; and divide material into 
short sections.
    We also considered proposing formatting specifications such as 
requiring the covered plan or provider to use easy-to-read design 
features (e.g., lists, tables, graphics, contrasting colors, and white 
space), type face, and font size in the notice. We are soliciting 
comment on whether these additional format specifications should be 
required.
    The purpose of the notice proposed in the rules below is to tell 
the recipient how protected health information collected about them 
will be used. Recipients who cannot understand the entity's notice 
would miss important information about their privacy rights and how the 
entity is protecting health information about them. One of the goals of 
this proposed rule is to create an environment of open communication 
and transparency with respect to the use and disclosure of protected 
health information. A lack of clarity in the notice could undermine 
this goal and

[[Page 59980]]

create misunderstandings. Covered plans or providers have an incentive 
to make their notice statements clear and concise. We believe that the 
more understandable notices are, the more confidence the public will 
have in the entity's commitment to protecting the privacy of health 
information.
    It is important that the content of the notice be communicated to 
all recipients and therefore we would encourage the covered plan or 
provider to consider alternative means of communicating with certain 
populations. We note that any covered entity that is a recipient of 
federal financial assistance is generally obligated under title VI of 
the Civil Rights Act of 1964 to provide material ordinarily distributed 
to the public in the primary languages of persons with limited English 
proficiency in the recipients' service areas. Specifically, this title 
VI obligation provides that, where a significant number or proportion 
of the population eligible to be served or likely to be directly 
affected by a federally assisted program need service or information in 
a language other than English in order to be effectively informed of or 
participate in the program, the recipient shall take reasonable steps, 
considering the scope of the program and the size and concentration of 
such population, to provide information in language appropriate to such 
persons. For entities not subject to title VI, the title VI standards 
provide helpful guidance for effectively communicating the content of 
their notices to non-English speaking populations.
    We also would encourage covered plans or providers to be attentive 
to the needs of individuals who cannot read. For example, an employee 
of the entity could read the notice to individuals upon request or the 
notice could be incorporated into a video presentation that is played 
in the waiting area.
    The requirement of a printed notice should not be interpreted as a 
limitation. For example, if an individual who is requesting a notice 
from a covered plan or providers were to ask to receive the notice via 
e-mail, the requirements of this proposed rule could be met by 
providing the notice via e-mail. The proposed rule would not preclude 
the use of alternative forms of providing the notice and we would 
encourage covered plans or providers to use other forms of 
distribution, such as posting their privacy notices on their web sites. 
While this will not substitute for paper distribution when that is 
requested by an individual, it may reduce the number of requests for 
paper copies.
2. Rights and Procedures for Access for Inspection and Copying  
(Sec. 164.514)
    a. Right of access for inspection or copying. (Sec. 164.514(a))
    [Please label comments about this section with the subject: 
``Access for inspection or copying'']
    In Sec. 164.514, we are proposing that, with very limited 
exceptions, individuals have a right to inspect and copy protected 
health information about them maintained by a covered health plan or 
health care provider in a designated record set. Individuals would also 
have a right of access to protected health information in a designated 
record set that is maintained by a business partner of a covered plan 
or provider when such information is not a duplicate of the information 
held by the plan or provider, including when the business partner is 
the only holder of the information or when the business partner has 
materially altered the protected health information that has been 
provided to it.
    This right of access means that an individual would be able to 
either inspect or obtain copies of his or her health information 
maintained in a designated record set by covered plans and providers 
and, in limited circumstances, by their business partners. Inspection 
and copying is a fundamental aspect of protecting privacy; this right 
empowers individuals by helping them to understand the nature of the 
health information about them that is held by their providers and plans 
and to correct errors. In order to facilitate an open and cooperative 
relationship with providers and allow the individual a fair opportunity 
to know what information is held by an entity, inspection and copying 
should be permitted in almost every case.
    While the right to have access to one's information may appear 
somewhat different from the right to keep information private, these 
two policy goals have always been closely tied. For example, 
individuals are given an almost absolute right of access to information 
in federal health record systems under the Privacy Act of 1974 (5 
U.S.C. 552a(d)). The Privacy Protection Study Commission recommended 
that this right be available. (Personal Privacy in an Information 
Society 299 (1977)). The right of access was a key component of the 
President's Advisory Commission on Consumer Protection and Quality in 
the Health Care Industry recommendations in the Consumer Bill of Rights 
and Responsibilities. The Commission's report stated that consumers 
should ``have the right to review and copy their own medical records 
and request amendments to their records.'' (Consumer Bill of Rights and 
Responsibilities, Chapter Six: Confidentiality of Health Information, 
November 1997). Most recently, the Health Privacy Project issued a 
statement of ``Best Principles for Health Privacy'' that included the 
same recommendation. Health Privacy Project, Institute for Health 
Policy Solutions, Georgetown University (June 1999) (http://
www.healthprivacy.org).
    Open access to health information can benefit both the individuals 
and the covered entities. It allows individuals to better understand 
their own diagnosis and treatment, and to become more active 
participants in their health care. It can increase communication, 
thereby enhancing individuals' trust in their health care providers and 
increasing compliance with the providers' instructions. If individuals 
have access to and understand their health information, changing 
providers may not disrupt health care or create risks based on lack of 
information (e.g., drug allergies or unnecessary duplication of tests).
    i. Information available for inspection and copying.
    In Sec. 164.514(a), we are proposing to give the individual a right 
of access to information that is maintained in a designated record set. 
We intend to provide a means for individuals to have access to any 
protected health information that is used to affect their rights and 
interests. This would include, for example, information that would be 
used to make health care decisions or information that would be used in 
determining whether an insurance claim would be paid. Covered plans or 
providers often incorporate the same protected health information that 
is used to make these types of decisions into a variety of different 
data systems. Not all of those data systems will be utilized to make 
determinations about specific individuals. For example, information 
systems that are used for quality control analyses are not usually used 
to make determinations about a specific patient. We would not require 
access to these other systems.
    In order to ensure that individuals have access to the protected 
health information that is used, we are introducing the concept of a 
``designated record set.'' In using the term ``designated record set,'' 
we are drawing on the concept of a ``system of records'' that is used 
in the Privacy Act. Under the Privacy Act, federal agencies must 
provide an individual with access to ``information pertaining to him 
which

[[Page 59981]]

is contained in (a system of records).'' 5 U.S.C. 552a(d)(1). A 
``system of records'' is defined as ``a group of any records under the 
control of any agency from which information is retrieved by the name 
of the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.'' 5 U.S.C. 
552a(a)(5). Under this rule, a ``designated record set'' would be ``a 
group of any records under the control of any covered entity from which 
information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifying particular assigned to 
the individual.'' See discussion in section II.B.
    Files used to backup a primary data system or the sequential files 
created to transmit a batch of claims to a clearinghouse are clear 
examples of data files which do not fall under this definition. We 
rejected requiring individual access to all records in which she or he 
was identifiable because of the extreme burden it would place on 
covered plans or providers without providing additional information or 
protection for the individual. We also rejected using the subset of 
such records which were accessed directly by individual identifiers 
because of the redundancy of information involved and the increasing 
use of database management systems to replace legacy systems that do 
sequential processing. These would be accessed by individual identifier 
but would contain redundant data and be used for routine processing 
that did not directly affect the individual. We concluded that access 
to only such record sets that were actually accessed by individual 
identifier and that were used to make substantive decisions that affect 
individuals would provide the desired information with a minimum of 
burden for the covered plans or providers.
    We note that the standard would apply to records that are 
``retrieved'' by an identifier and not records that are only 
``retrievable'' by an identifier. In many cases, technology will permit 
sorting and retrieving by a variety of fields and therefore the 
``retrievable'' standard would be relatively meaningless. We intend to 
limit access to those sets of records actually used to affect the 
interests of the individual.
    We believe that by providing access to protected health information 
maintained in a designated record set, we would be ensuring that 
individuals will be able to inspect or copy relevant and appropriate 
information without placing too significant of a burden on covered 
plans or providers. We are soliciting comment on whether limiting 
access to information maintained in a designated record set is an 
appropriate standard when applied to covered plans and providers and 
their business partners.
    ii. Right of access to information maintained by business partners.
    In Sec. 164.506(e), we are proposing that covered plans and 
providers include specific terms in their contract with each business 
partner. One of the required terms would be that the business partner 
must provide for inspection and copying of protected health information 
as provided in this section. Because our authority is limited by HIPAA 
to the covered entities, we must rely upon covered plans and providers 
to ensure that all of the necessary protected health information 
provided by the individual to the plan or provider is available for 
inspection and copying. We would require covered plans and providers to 
provide access to information held in the custody of a business partner 
when it is different from information maintained by the covered plan or 
provider. We identified two instances where this seemed appropriate: 
when the protected health information is only in the custody of a 
business partner and not in the custody of the covered plan or 
provider; and when protected health information has been materially 
altered by a business partner. We are soliciting comment on whether 
there are other instances where access should be provided to protected 
health information in the custody of a business partner.
    Other than in their capacity as business partners, we are not 
proposing to require clearinghouses to provide access for inspection 
and copying. As explained above in section II.C.5, clearinghouses would 
usually be business partners under this proposed rule and therefore 
they would be bound by the contract with the covered plan or provider. 
See proposed Sec. 164.506(e). We carefully considered whether to 
require clearinghouses to provide access for inspection and copying 
above and beyond their obligations as a business partner, but 
determined that the typical clearinghouse activities of translating 
record formats and batching transmissions do not involve setting up 
designated record sets on individuals. Although the data maintained by 
the clearinghouse is protected health information, it is normally not 
accessed by individual identifier and an individual's records could not 
be found except at great expense. In addition, although clearinghouses 
process protected health information and discover errors, they do not 
create the data and make no changes in the original data. They, 
instead, refer the errors back to the source for correction. Thus, 
individual access to clearinghouse records provides no new information 
to the individual but could impose a significant burden on the 
industry.
    As technology improves it is likely that clearinghouses will find 
ways to take advantage of databases of protected health information 
that aggregate records on the basis of the individual subject of the 
information. This technology would allow more cost-effective access to 
clearinghouse records on individuals and therefore access for 
inspection and copying could be appropriate and reasonable.
    iii. Duration of the right of access.
    We are proposing that covered plans and providers be required to 
provide access for as long as the entity maintains the protected health 
information. We considered requiring covered plans and providers to 
provide access for a specific period or defining a specific retention 
period. We rejected that approach because many laws and professional 
standards already designate specific retention periods and we did not 
want to create unnecessary confusion. In addition, we concluded that 
individuals should be permitted to have access for as long as the 
information is maintained by the covered plan or provider. We are 
soliciting comments on whether we should include a specific duration 
requirement in this proposed rule.
    b. Grounds for denial of access for inspection and copying. 
Proposed Sec. 164.514 would permit denial of inspection and copying 
under very limited circumstances. The categories of denials would not 
be mandatory; the entity could always elect to provide all of the 
requested health information to the individual. For each request by an 
individual, the entity could provide all of the information requested 
or it could evaluate the requested information, consider the 
circumstances surrounding the individual's request, and make a 
determination as to whether that request should be granted or denied. 
We intend to create narrow exceptions to the stated rule of open access 
and we would expect covered plans and providers to employ these 
exceptions rarely, if at all.
    In proposing these categories of permissible denials, we are not 
intending to create a legal duty for the entity to review all of the 
health information before releasing it. Rather, we are proposing them 
as a means of preserving the flexibility and judgment of covered plans 
or providers under appropriate circumstances.

[[Page 59982]]

    Entities subject to the Privacy Act would not be able to deny a 
request for inspection and copying under all of the circumstances 
permitted by this proposed rule. They would continue to be governed by 
the denials permitted by the Privacy Act and applicable regulations. 
See section II.I.4.a for further discussion.
    i. Disclosures reasonably likely to endanger life or physical 
safety.
    In Sec. 164.514(b)(1)(i), we propose that covered plans and 
providers be permitted to deny a request for inspection or copying if a 
licensed health care professional has determined that, in the exercise 
of reasonable professional judgment, the inspection and copying 
requested is reasonably likely to endanger the life or physical safety 
of the individual or another person. Denial based on this provision, as 
with all of the provisions in this section, would be discretionary. 
While it is important to protect the individual and others from 
physical harm, we are also concerned about the subjectivity of the 
standard and are soliciting comments on how to incorporate a more 
objective standard into this provision.
    We are proposing that covered plans and providers should only 
consider denying a request for inspection and copying under this 
provision in situations where a licensed health care professional (such 
as a physician, physician's assistant or nurse) makes the determination 
that access for inspection and copying would be reasonably likely to 
endanger life or physical safety. We are proposing to require a 
licensed health care professional to make the determination because it 
would rely entirely on the existing standards and ethics in the medical 
profession. In some instances, the covered plan or provider would be a 
licensed health care professional and therefore, he or she could make 
the determination independently. However, when the request is made to a 
health plan, the entity would need to consult with a health care 
professional in order to deny access under this provision.
    We are soliciting comments as to whether the determination under 
this provision should be limited to health care professionals who have 
an existing relationship with the individual. While such a limitation 
would significantly restrict the scope of this provision and could 
reduce the number of denials of requests for inspection and copying, it 
could also ensure that the determination of potential harm is as 
accurate as possible.
    By proposing to allow covered plans and providers to deny a request 
for inspection and copying based on potential endangerment, we are not 
suggesting that entities should deny a request on that basis. This 
provision is not intended to be used liberally as a means of denial of 
individual inspection and copying rights for all mental health records 
or other ``sensitive'' health information. Each request for access 
would have to be assessed on its own merits. We would expect the 
medical community to rely on its current professional standards for 
determining what constitutes a threat to life or physical safety.
    As explained above, we are not proposing to create a new ``duty'' 
whereby entities can be held liable for failure to deny inspection and 
copying. We simply are acknowledging that some providers, based on 
reasonable professional judgment, may already assume a duty to protect 
an individual from some aspect of their health information because of 
the potential for physical harm. The most commonly cited example is 
when an individual exhibits suicidal or homicidal tendencies. If a 
health care professional determines that an individual exhibits such 
tendencies and that permitting inspection or copying of some of their 
health information could reasonably result in the individual committing 
suicide, murder or other physical violence, then the individual could 
be denied access to that information.
    We considered whether covered plans and providers should be 
permitted to deny access on the basis of sensitivity of the health 
information or the potential for causing emotional or psychological 
harm. Many States allow denial of access on similar grounds. In 
balancing the desire to provide individual access against the need to 
protect the individual, we concluded that the individual access should 
prevail because in the current age of health care , it is critical that 
the individual is aware of his or her health information.
    Therefore, if a health care professional determines that inspection 
and copying of the requested information may cause emotional or 
psychological harm, but is not reasonably likely to endanger the life 
or physical safety of the individual or another person, then the 
covered plan or provider would not be permitted to deny the 
individual's request. If the entity is concerned about the potential 
for emotional or psychological harm, we would encourage it to offer 
special procedures for explaining the information or counseling the 
individual. For example, an entity could offer to have a nurse or other 
employee review the information or the format with the individual or 
provide supplemental written materials explaining a diagnosis. If the 
entity elects to offer such special procedures, the entity would not be 
permitted to condition inspection and copying upon compliance with the 
procedures. We are not proposing to require covered plans or providers 
to establish any informational or counseling procedures and we are not 
proposing that individuals be required to comply with any procedures in 
order to obtain access to their protected health information. We invite 
comment on whether a standard such as emotional distress or 
psychological harm should be included as a reason for which a covered 
plan or provider could deny a request for inspection or copying.
    ii. Disclosures likely to cause harm to another individual.
    We propose that covered plans and providers be permitted to deny a 
request for inspection or copying if the information requested is about 
another person (other than a health care provider) and a licensed 
health care professional has determined that inspection or copying is 
reasonably likely to cause substantial harm to that other person. We 
believe that it is rare that information about one person would be 
maintained within the health records of another without one or both of 
their knowledge. On some occasions when health information about one 
person is relevant to the care of another, a physician may incorporate 
it into the latter's record, such as information from group therapy 
sessions and illnesses with a genetic component. In some instances the 
information could be shared without harm, or may already be known to 
the individual. There may, however, be situations where disclosure 
could harm the other person, such as by implicitly revealing facts 
about past sexual behavior, nonpaternity, or similarly sensitive 
information. This provision would permit withholding of information in 
such cases.
    We believe that this determination should be based on the existing 
standards and ethics in the medical profession. We are soliciting 
comments on whether the determination under this provision should be 
limited to health care professionals who have an existing relationship 
with the person who is expected to be harmed as a result of the 
inspection or copying.
    Information about a third party may appear in an individual's 
records unbeknownst to the individual. In such cases if the individual 
chooses to exercise her right to inspect her protected health 
information, the covered plan or provider providing her access would be 
making an

[[Page 59983]]

unauthorized disclosure unless the third party has provided a written 
authorization. We considered requiring that access to such information 
be denied because the third party had not provided an authorization. We 
considered proposing that the covered plan or provider would be 
required to deny an individual's request for access to any information 
about another person, unless there was a potential for harm to the 
individual who would be denied. This would have been the only instance 
where we would require that access be denied as a general rule. We 
recognized that such requirements would ultimately require covered 
plans and providers to review every piece of protected health 
information before permitting inspection and copying to determine if 
information about another person was included and whether the requester 
would be harmed without such information. We concluded that this would 
impose a significant burden on covered plans and providers. We seek 
comment on whether and how often individual health records contain 
identifiable information about other persons, and current practice 
relating to the handling of such information in response to individual 
requests for access.
    iii. Disclosures of confidential information likely to reveal the 
source.
    We propose that covered plans or providers be permitted to deny a 
request for inspection and copying if the entity determines that the 
requested information was obtained under a promise of confidentiality 
from someone other than a health care provider and such access would be 
likely to reveal the source of the information. This provision is 
intended to preserve an entity's ability to maintain an implicit or 
explicit promise of confidentiality.
    Covered plans and providers would not be permitted to deny access 
when the information has been obtained from another health care 
provider. An individual is entitled to have access to all information 
about him or her generated by the health care system (apart from the 
other exceptions we propose here), and confidentiality promises by 
health care providers to other providers should not interfere with that 
access.
    iv. Disclosures of clinical trial information.
    While a clinical trial is research, it is also health care as 
defined in Sec. 160.103, and the information generated in the course of 
the trial would be protected health information. In 
Sec. 164.514(b)(iv), we are proposing that a researcher/provider could 
deny a request for inspection and copying of the clinical trial record 
if the trial is still in progress, and the subject-patient had agreed 
to the denial of access in conjunction with the subject's consent to 
participate in the trial. The IRB or privacy board would determine 
whether such waiver of access to information is appropriate, as part of 
its review of the research protocol. In the rare instances in which 
individuals are enrolled in trials without consent (such as those 
permitted under FDA regulations, at 21 CFR 50.23), the covered entity 
could deny access to information during the course of the trial even 
without advance subject consent.
    Clinical trials are often masked--the subjects do not know the 
identity of the medication they are taking, or of other elements of 
their record while the trial is in progress. The research design 
precludes their seeing their own records and continuing in the trial. 
Thus it is appropriate for the patient to waive the right to see the 
record while the trial is in progress. This understanding would be an 
element of the patient's consent to participate in the trial; if the 
consent signed by the patient did not include this fact, the patient 
would have the normal right to see the record. In all cases, the 
subject would have the right to see the record after the trial is 
completed.
    As with all grounds for denial of access, denial would not be 
required under these circumstances. We would expect all researchers to 
maintain a high level of ethical consideration for the welfare of trial 
participants and provide access where appropriate. For example, if a 
participant has a severe adverse reaction, disclosure of information 
during the course of the trial may be necessary to give the participant 
adequate information for proper treatment decisions.
    v. Disclosure of information compiled for a legal proceeding.
    In Sec. 164.514(b)(1)(v), we are proposing that covered plans and 
providers be permitted to deny a request for inspection and copying if 
the information is compiled in reasonable anticipation of, or for use 
in, a legal proceeding. This provision would permit the entity to deny 
access to any information that relates specifically to legal 
preparations but not to the individual's underlying health information. 
For example, when a procedure results in an adverse outcome, a 
hospital's attorney may obtain statements or other evidence from staff 
about the procedure, or ask consultants to review the facts of the 
situation for potential liability. Any documents containing protected 
health information that are produced as a result of the attorney's 
inquiries could be kept from the individual requesting access. This 
provision is intended to incorporate the attorney work-product 
privilege. Similar language is contained in the Privacy Act and has 
been interpreted to extend beyond attorneys to information prepared by 
``lay investigators.''
    We considered limiting this provision to ``civil'' legal 
proceedings but determined that such a distinction could create 
difficulties in implementation. In many situations, information is 
gathered as a means of determining whether a civil or criminal 
violation has occurred. For example, if several patients were 
potentially mistreated by a member of a provider's staff, the provider 
may choose to get copies of the patients' records and interview other 
staff members. The provider may not know at the time they are compiling 
all of this information whether any investigation, civil or criminal, 
will take place. We are concerned that if we were to require the entity 
to provide the individual with access to this information, we might 
unreasonably interfere with this type of internal monitoring.
    c. Provision of other protected health information where access for 
inspection and copying is denied. In proposed Sec. 164.514(b)(2), we 
would require a covered plan or provider that elects to deny a request 
for inspection or copying as provided above to make any other protected 
health information requested available to the individual to the extent 
possible consistent with the denial. The plan or provider could redact 
or otherwise exclude only the information that falls within one or more 
of the denial criteria described above and would be required to permit 
inspection and copying of all remaining information. This provision is 
key to the right to inspect and copy one's health information. We 
intend to create narrow exceptions to the stated rule of open access 
for inspection and copying and we would expect covered plans or 
providers to employ these exceptions rarely, if at all. In the event 
that a covered plan or provider would find it necessary to deny access, 
then the denial would need to be as limited in scope as possible.
    d. Procedures to effect right of access for inspection and copying. 
In Sec. 164.514(c) and (d), we are proposing that covered plans and 
providers be required to have procedures that enable individuals to 
exercise their rights to inspect and obtain a copy of protected health 
information as explained above.

[[Page 59984]]

    We considered whether this proposed rule should include detailed 
procedures governing a individual's request for inspection and copying. 
Because this proposed rule will affect such a wide range of entities, 
we concluded that it should only provide general guidelines and that 
each entity should have the discretion to develop procedures consistent 
with its own size, systems, and operations.
    i. Time limits.
    In Sec. 164.514(d)(2), we are proposing that the covered plans and 
providers would take action upon the request as soon as possible but 
not later than 30 days following receipt of the request. We considered 
the possibility of not including a time limitation but rather imposing 
a ``reasonableness'' requirement on the covered plans or providers. We 
concluded that the individual is entitled to know when to expect a 
response. This is particularly important in the context of health 
information, where an individual may need access to his or her 
information in order to make decisions about care. Therefore, in order 
to determine what would be ``reasonable,'' we examined the time 
limitations provided in the Privacy Act, the Freedom of Information Act 
(FOIA), and several State laws.
    If the entity had fulfilled all of its duties under this proposed 
rule within the required time period, then the entity should not be 
penalized for any delay by the individual. For example, if, within the 
30 days, a provider approves a request for inspection and copying, 
makes copies of the requested information, and notifies the individual 
that this information is available to be picked up and paid for at the 
provider's office, then the provider's duty would be discharged under 
the rule. The individual might not be able to pick up the information 
for another two weeks, but this extra time should not be counted 
against the provider.
    The Privacy Act requires that upon receipt of a request for 
amendment (not access), the agency would send an acknowledgment to the 
individual within 10 working days. (5 U.S.C. 552a (d)(2)). We 
considered several options that included such an acknowledgment 
requirement. An acknowledgment would be valuable because it would 
assure the individual that their request was received. Despite the 
potential value of requiring an acknowledgment, we concluded that it 
could impose a significant administrative burden on some of the covered 
plans and providers. This proposed rule will cover a wide range of 
entities with varying capacities and therefore, we are reluctant to 
create requirements that would overwhelm smaller entities or interfere 
too much with procedures already in place. We would encourage plans and 
providers to have an acknowledgment procedure in place, but would not 
require it at this point. We are soliciting comment on whether this 
proposed rule should require such an acknowledgment.
    We also considered whether to include specific procedures governing 
``urgent'' or ``emergency'' requests. Such procedures would require 
covered plans and providers to respond in a shorter time frame. We 
recognize that circumstances may arise where an individual will request 
inspection and copying on an expedited basis and we encourage covered 
plans or providers to have procedures in place for handling such 
requests. We are not proposing additional regulatory time limitations 
to govern in those circumstances. The 30-day time limitation is 
intended to be an outside deadline, rather than an expectation. Rather, 
we would expect a plan or provider to always be attentive to the 
circumstances surrounding each request and respond in an appropriate 
time frame, not to exceed 30 days.
    Finally, we considered including a section governing when and how 
an entity could have an extension for responding to a request for 
inspection and copying. For example, the FOIA provides that an agency 
may request additional time to respond to a request if the agency needs 
to search for and collect the requested records from facilities that 
are separate from the office processing the request; to search for, 
collect, and appropriately examine a voluminous amount of separate and 
distinct records; and to consult with another entity or component 
having a substantial interest in the determination of the request. We 
determined that the criteria established in the FOIA are tailored to 
government information systems and therefore may not be appropriate for 
plans and providers covered by this proposed rule. Furthermore, we 
determined that the 30-day time period would be sufficient for 
responding to requests for inspection and copying and that extensions 
should not be necessary. We are soliciting comments on whether a 
structured extension procedure should be included in this proposed 
rule.
    ii. Notification of accepted requests.
    In Sec. 164.514(d)(3), we are proposing that covered plans or 
providers be required to notify the individual of the decision to 
provide access and of any steps necessary to fulfill the request. In 
addition we propose that the entity provide the information requested 
in the form or format requested if it is readily producible in such 
form or format. Finally, if the covered plan or provider accepts an 
individual's request, it would be required to facilitate the process of 
inspection and copying.
    For example, if the plan or provider will be making copies and 
sending them directly to the individual with an invoice for copying 
costs, then it would need to ensure that the individual is aware of 
this procedure in advance and then send the information within the 30-
day time period. If the plan or provider has procedures that require 
the individual to inspect the health information on site, then in 
addition to notifying the individual of the procedure, the entity would 
need to ensure that there are representatives available during 
reasonable business hours at the usual business address who can assist 
with inspection and copying. If the plan or provider maintains health 
information electronically and the individual requests an electronic 
copy, the plan or provider would need to accommodate such request if 
possible.
    iii. Copying fees.
    In proposed Sec. 164.514(d)(3)(iv), we would permit a covered plan 
or provider to charge a reasonable, cost-based fee for copying health 
information provided pursuant to this section. We considered whether we 
should follow the practice in the FOIA and include a structured fee 
schedule. We concluded that the FOIA was developed to reflect the 
relatively uniform government costs and that this proposed rule would 
apply to a broader range of entities. Depending on the size of the 
entity, copying costs could vary significantly. Therefore, we propose 
that the entity simply charge a reasonable, cost-based fee.
    The inclusion of a fee for copying is not intended to impede the 
ability of individuals to copy their records. Rather, it is intended to 
reduce the burden on covered plans and providers. When establishing a 
fee for copying, we encourage covered plans and providers to consider 
the impact on individuals of such a cost. If the cost is excessively 
high, some individuals would not be able to obtain a copy. We would 
encourage covered plans or providers to make efforts to keep the fee 
for copying within reach of all individuals.
    iv. Statement of denial of access for inspection and copying.
    In Sec. 164.514(d)(4), we propose that a covered plan or provider 
that denies an individual's request for inspection and copying in whole 
or in part be required to provide the individual with a written 
statement in plain language explaining the reason for the denial. The 
statement could include a direct reference to the section of the 
regulation relied upon for

[[Page 59985]]

the denial, but the regulatory citation alone would not sufficiently 
explain the reason for the denial. The statement would need to include 
the name and number of the contact person or office within the entity 
who is responsible for receiving complaints. In addition, the statement 
would need to include information regarding the submission of a 
complaint with the Department pursuant to Sec. 164.522(b).
    We considered proposing that covered plans and providers provide a 
mechanism for appealing a denial of inspection and copying. We believe, 
however, that the requirement proposed in Sec. 164.518(d) that covered 
plans and providers have complaint procedures to address patient and 
enrollee privacy issues generally would allow the individual to raise 
the issue of a denial with the covered plan or provider. We would 
expect the complaint procedures to be scalable; for example, a large 
plan might develop a standard complaint process in each location where 
it operates whereas, a small practice might simply refer the original 
request and denial to the clinician in charge for review. We would 
encourage covered plans and providers to institute a system of appeals, 
but would not require it by regulation. In addition, the individual 
would be permitted to file a complaint with the Department pursuant to 
Sec. 164.522(b).
3. Rights and Procedures With Respect to an Accounting of Disclosures.  
(Sec. 164.515)
    [Please label comments about this section with the subject: 
``Accounting of disclosures'']
    a. Right to accounting of disclosures. In this rule, we propose 
that individuals have a right to receive an accounting of all instances 
where protected health information about them is disclosed by a covered 
entity for purposes other than treatment, payment, and health care 
operations, subject to certain time-limited exceptions for disclosures 
to law enforcement and oversight agencies as discussed below. Providing 
such an accounting would allow individuals to understand how their 
health information is shared beyond the basic purposes of treatment, 
payment and health care operations.
    We considered whether to require covered entities to account for 
all disclosures, including those for treatment, payment and health care 
operations. We rejected this approach because it would be burdensome 
and because it would not focus on the disclosures of most interest to 
individuals. Upon entering the health care system, individuals are 
generally aware that their information will be used and shared for the 
purpose of treatment, payment and health care operations. They have the 
greatest interest in an accounting of circumstances where the 
information was disclosed for other purposes that are less easy to 
anticipate. For example, an individual might not anticipate that his or 
her information would be shared with a university for a research 
project, or would be requested by a law enforcement agency.
    We are not proposing that covered entities include uses and 
disclosures for treatment, payment and health care operations in the 
accounting. We believe that it is appropriate for covered entities to 
monitor all uses and disclosures for treatment, payment and health care 
operations, and they would be required to do so for electronically 
maintained information by the Security Standard. However, we do not 
believe that covered entities should be required to provide an 
accounting of the uses and disclosures for treatment payment and health 
care operations.
    The proposed Security Standard would require that ``[e]ach 
organization * * * put in place audit control mechanisms to record and 
examine system activity. They would be important so that the 
organization can identify suspect data access activities, assess its 
security program, and respond to potential weaknesses.'' The purpose of 
the audit control mechanism, or audit trail, in the Security Standard 
would be to provide a means for the covered entity to police access to 
the protected health information maintained in its systems. By 
contrast, the purpose of the accounting would be to provide a means for 
individuals to know how the covered entity is disclosing protected 
health information about them. An audit trail is critical to 
maintaining security within the entity and it could be constructed in 
such a way to enable the covered plan or provider to satisfy the 
requirements of both regulations. For example, every time protected 
health information was used or disclosed, the audit mechanism could 
prompt the user for a ``purpose.'' If the disclosure was for a purpose 
other than treatment, payment or health care operations, then the 
information could be flagged or copied into a separate database. This 
would allow the entity to both monitor security and have the ability to 
provide an accurate accounting upon request.
    Covered entities should know how all protected health information 
is used and disclosed, but should not be required to provide an 
exhaustive accounting of all uses and disclosures to individuals upon 
request. Such an accounting could be extremely long and detailed. It 
would place a tremendous burden on the covered entities and it could be 
far too detailed to adequately inform the individual. We determined 
that when individuals seek health care, they understand that 
information about them will be used and disclosed in order to provide 
treatment or obtain payment and therefore, they would have the most 
significant interest in knowing how protected health information was 
used and disclosed beyond the expected realm of treatment, payment and 
health care operations. We are soliciting comment on whether the scope 
of accounting strikes an appropriate balance between providing 
information to the individual and imposing requirements on covered 
entities.
    We are proposing that covered entities be required to provide an 
accounting of disclosures for as long as the entity maintains the 
protected health information. We considered only requiring the 
accounting for a specified period of time, but concluded that 
individuals should be permitted to learn how their information was 
disclosed for as long as the information is maintained by the covered 
plan or provider. We are soliciting comments on whether we should 
include a specific time period in this proposed rule.
    b. Procedures for providing an accounting of disclosures.
    i. Form or format.
    This proposed rule does not specify a particular form or format for 
the accounting. In order to satisfy the accounting requirement, a 
covered entity could elect to maintain a systematic log of disclosures 
or it could elect to rely upon detailed record keeping that would 
permit the entity to readily reconstruct the history when it receives a 
request from an individual. We would require that covered entities be 
able to respond to a request for accounting within a reasonable time 
period. In developing the form or format of the accounting, covered 
entities should adopt policies and procedures that will permit them to 
respond to requests within the 30-day time period in this proposed 
rule.
    ii. Content of the accounting of disclosures.
    We are proposing that the accounting include all disclosures for 
purposes other than treatment, payment, and health care operations, 
subject to certain exceptions for disclosures to law enforcement and 
oversight agencies, discussed below. This would also include 
disclosures that are authorized by the individual. The accounting would 
include the date of each disclosure; the name and address of the

[[Page 59986]]

organization or person who received the protected health information; 
and a brief description of the information disclosed. For all 
disclosures that are authorized by the individual, we are proposing 
that the covered entity maintain a copy of the authorization form and 
make it available to the individual with the accounting.
    We considered whether the accounting of disclosures should include 
the name of the person who authorized the disclosure of information. 
The proposed Security Standard would require covered entities to have 
an audit mechanism in place to monitor access by employees. We 
concluded that it was unnecessary and inappropriate to require the 
covered entity to include this additional information in the 
accounting. If the individual identifies an improper disclosure by an 
entity, he or she should hold the entit--not the employee of the 
entity--accountable. It is the responsibility of the entity to train 
its workforce about its policies and procedures for the disclosure of 
protected health information and to impose sanctions if such policies 
and procedures are violated.
    We are proposing that protected health information that is 
disclosed to a health oversight or law enforcement agency would be 
excluded from the accounting if the oversight or law enforcement agency 
provides a written request stating that the exclusion is necessary for 
a specified time period because access by the individual during that 
time period would be reasonably likely to impede the agency's 
activities. The written request must specifically state how long the 
information should be excluded. At the expiration of that period, the 
covered entity would be required to include the information in an 
accounting for the individual.
    We are proposing this time-limited exclusion for law enforcement 
and oversight activities because we do not intend to unreasonably 
interfere with investigations and other activities that are in the 
public interest. The Recommendations simply provide that disclosures to 
law enforcement and oversight agencies should be excluded from the 
accounting where access by the individual could be reasonably likely to 
impede the agency's activities. We were concerned that it would be 
difficult for covered entities to determine whether access by the 
individual was ``reasonably likely to impede the agency's activities.'' 
In order to address this concern, we considered excluding all 
disclosures to law enforcement and oversight from the accounting, but 
concluded that such an exclusion would be overly broad. As a means of 
creating a clearly defined rule for the covered entity to follow, we 
are proposing that covered entities require a time-limited, written 
statement from the oversight or law enforcement agency. We are 
soliciting comment on whether this time-limited exclusion strikes the 
appropriate balance between ensuring individual access to an accounting 
of disclosures and preserving the integrity of law enforcement and 
oversight investigations.
    iii. Time limits.
    We are proposing that the accounting of disclosures, including 
copies of signed authorization forms, be made available to the 
individual as quickly as the circumstances require, but not later than 
30 days following receipt of the request.
4. Rights and Procedures for Amendment and Correction (Sec. 164.516)
[Please label comments about this section with the subject: ``Amendment 
or correction'']
    a. Right to request amendment or correction of protected health 
information. This proposed rule would provide an individual with the 
right to request a covered plan or provider to amend or correct 
protected health information relating to the individual. A covered plan 
or provider would be required to accommodate requests with respect to 
any information that the covered plan or provider determines to be 
erroneous or incomplete, that was created by the plan or provider, and 
that would be available for inspection and copying under proposed 
Sec. 164.514.
    i. Accuracy and completeness.
    The first criteria that a covered entity would need to consider is 
whether the protected health information at issue is either erroneous 
or incomplete. The basic concept comes from the Privacy Act of 1974, 
governing records held by Federal agencies, which permits an individual 
to request correction or amendment of a record ``which the individual 
believes is not accurate, relevant, timely, or complete.'' (5 U.S.C. 
552a(d)(2)). We would adopt the standards of ``accuracy'' and 
``completeness'' and draw on the clarification and analysis of these 
terms that has emerged in administrative and judicial interpretations 
of the Privacy Act over the last 25 years.
    We are not proposing to permit correction on the basis of an 
individual's belief that information is irrelevant or untimely. The 
Privacy Act of 1974 imposes affirmative obligations on Federal agencies 
to maintain records with accuracy, relevance, timeliness, and 
completeness, and permits individuals to seek correction of records 
that do not meet that standard. The amendment and correction right 
complements and helps to enforce the agency obligation.
    Our view is that the relevance and timeliness standards, while very 
appropriate for Federal agencies generally, would be difficult to 
impose by regulation upon health record keeping, which depends to a 
large extent on clinical judgment. The increasingly-recognized impact 
of lifestyle and environmental factors on health may, for example, 
motivate physicians to record information which appears irrelevant, but 
which may in fact serve as a diagnostic clue, or which may alert later 
users of the record to clinically relevant aspects of the patient's 
life. We invite comment on how any such standard might be structured to 
avoid interfering inappropriately with clinical judgment.
    We also are concerned about the burden that requests for amendment 
or correction may place on covered plans and providers and have tried 
to limit the process to those situations where amendment or correction 
would appear to be most important. We invite comment on whether our 
approach reasonably balances burden with adequately protecting 
individual interests.
    We note that for Federal agencies that are also covered plans or 
providers, the rule we are proposing would not diminish their present 
obligations under the Privacy Act of 1974, under which all four factors 
are bases for amendment and correction.
    ii. Original creator of the information.
    We propose to require a covered plan or provider to accommodate a 
request for amendment or correction if the plan or provider created the 
information in dispute.
    We considered requiring covered plans and providers to amend or 
correct any erroneous or incomplete information it maintains, 
regardless of whether it created the information. Under this approach, 
if the plan or provider did not create the information, then it would 
have been required to trace the information back to the original source 
to determine accuracy and completeness. We rejected this option because 
we concluded that it would not be appropriate to require the plan or 
provider that receives a request to be responsible for verifying the 
accuracy or completeness of information that it did not create. We also 
were concerned about the burden that would be imposed on covered plans 
and providers if they were required to trace the source of any 
erroneous or

[[Page 59987]]

incomplete information transmitted to them.
    We would rely on a combination of three other requirements to 
ensure that protected health information remains as accurate as 
possible as it travels through the health care system. First, we are 
proposing that a covered plan or provider that makes an amendment or 
correction be required to notify any relevant persons, organizations, 
or other entities of the change or addition. Second, we are proposing 
that other covered plans or providers that receive such a notification 
be required to incorporate the necessary amendment or correction. 
Finally, we are proposing that covered plans or providers require their 
business partners who receive such notifications to incorporate any 
necessary amendments or corrections. See discussion in section 
II.F.4.c.iii. We are soliciting comments whether this approach would 
effectively ensure that amendments and corrections are communicated 
appropriately.
    iii. Information available for amendment or correction.
    We are proposing that the right to request amendment or correction 
extend to all protected health information that would be available for 
inspection and copying under Sec. 164.514. We would only require 
covered plans and providers to amend or correct that information 
maintained in a designated record set but would encourage the 
development of systems that would accommodate these types of changes 
for all data collections. For protected health information that is 
maintained solely by a business partner or that has been materially 
altered by a business partner, the covered plan or provider would need 
to make arrangements with the business partner to accommodate any 
requests.
    This right would not be intended to interfere with medical 
practice, or modify standard business record keeping practices. Perfect 
records are not required, but instead a standard of reasonable accuracy 
and completeness should be used. In addition, this right would not be 
intended to provide a procedure for substantive review of decisions 
such as coverage determinations by payers. It would only affect the 
content of records, not the underlying truth or correctness of 
materials recounted therein. Attempts under the Privacy Act of 1974 to 
use this correction mechanism as a basis for collateral attack on 
agency determinations have generally been rejected by the courts. The 
same results would be intended here.
    iv. Duration of the right to request amendment or correction.
    We are proposing that covered plans and providers be required to 
accommodate requests for amendment or correction for as long as the 
entity maintains the protected health information. We considered 
requiring covered plans and providers to accommodate requests for a 
specific period or defining a specific retention period. We rejected 
that approach because many laws and professional standards already 
designate specific retention periods and we did not want to create 
confusion. In addition, we concluded that individuals should be 
permitted to request amendments or corrections for as long as the 
information is maintained by the covered plan or provider. We are 
soliciting comments on whether we should include a specific duration 
requirement in this proposed rule.
    b. Grounds for denial of request for amendment or correction. We 
are proposing that a covered plan or provider would be permitted to 
deny a request for amendment or correction if, after a reasonable 
review, the plan or provider determines that it did not create the 
information at issue, the information would not be available for 
inspection and copying under proposed Sec. 164.514, the information is 
accurate and complete, or if it is erroneous or incomplete, it would 
not adversely affect the individual.
    c. Procedures for requesting amendment or correction.
    i. Individual requests for amendment or correction.
    In Sec. 164.516, we are proposing that covered plans and providers 
be required to have procedures that enable individuals to exercise 
their rights to request amendment or correction, including a means by 
which individuals can request amendment or correction of protected 
health information about them. We considered whether this proposed rule 
should include detailed procedures governing an individual's request. 
But as with the procedures for requesting inspection and copying, we 
are only providing a general requirement and permitting each plan or 
provider to develop procedures in accordance with its needs. Once the 
procedures are developed, the plan or provider would document them in 
accordance with section Sec. 164.520 and include a brief explanation in 
the notice that is provided to individuals pursuant to section 
Sec. 164.512.
    ii. Time limits.
    We are proposing that the covered plan or provider would take 
action on a request for amendment or correction as quickly as the 
circumstances require, but not later than 60 days following the 
request. The justification for establishing a time limitation for 
amendment and correction is virtually identical to that provided for 
the time limitation for inspection and copying. We concluded that the 
entity should be provided with some additional flexibility in this 
context. Depending on the nature of the request, an amendment or 
correction could require significantly more time than a request for 
inspection and copying. If a covered plan or provider needed more than 
30 days to make a decision, we would encourage, but not require, it to 
send an acknowledgment of receipt to the individual including an 
explanation of the reasons for the delay and a date when the individual 
can expect a final decision.
    iii. Acceptance of a request for amendment or correction.
    If a covered plan or provider accepts an individual's request for 
amendment or correction, it would be required to make the appropriate 
amendments or corrections. In making the change, the entity would have 
to either add the amended or corrected information as a permanent part 
of the record or mark the challenged entries as amended or corrected 
entries and, if appropriate, indicate the place in the record where the 
amended or corrected information is located. Covered plans or providers 
would not be required to expunge any protected health information, but 
rather mark it as erroneous or incomplete.
    We also propose in Sec. 164.506(e) that entities include a contract 
requirement that when the covered plan or provider notifies the 
business partner of an amendment or correction, the business partner 
must make the necessary amendments or corrections to protected health 
information in its custody.
    In Sec. 164.516(c)(3), we are proposing that, upon accepting an 
amendment or correction, the covered plan or provider would be required 
to make reasonable efforts to notify relevant persons, organizations, 
or other entities of the change or addition. An entity would be 
required to notify such persons that the individual identifies, or that 
the covered plan or provider identifies as (1) a recipient of the 
erroneous or incomplete information, and (2) a person who:
     Has relied upon that information to the detriment of the 
individual; or
     Is a person who may foreseeably rely on such erroneous or 
incomplete information to the detriment of the individual.
    We are concerned about the potential burden that this notification 
requirement would impose on covered plans and providers. We do not, 
however, anticipate that a significant

[[Page 59988]]

number of requests would be submitted to any entity and therefore the 
need for such notifications would be rare. In addition, we determined 
that because health information can travel so quickly and efficiently 
in the modern health care system, the need for notification outweighed 
the potential burden. It is important to note that a reasonableness 
standard should be applied to the notification process--if the 
recipient has not relied upon the erroneous or incomplete information 
to the detriment of the individual or if it is not foreseeable that the 
recipient will do so, then it would not be reasonable for the covered 
plan or provider to incur the time and expense of notification. If, 
however, the incorrect information is reasonably likely to be used to 
the detriment of the individual, the entity should make every effort to 
notify the recipients of the information of the changes as quickly as 
possible.
    iv. Denial of a request for amendment or correction.
    In proposed Sec. 164.516(c)(4), we would require a covered plan or 
provider to provide the individual with a written statement in plain 
language of the reason for the denial and permit the individual to file 
a written statement of disagreement with the decision to deny the 
request.
    The statement prepared by covered plan or provider would be 
required to explain the basis for the denial. The statement would 
include a description of how the individual may complain to the covered 
plan or provider as provided in Sec. 164.518(d). The statement would 
include the name and number of the contact person within the plan or 
provider who is responsible for receiving complaints. The statement 
also would include information regarding filing a complaint with the 
Secretary pursuant to Sec. 164.522(b)(1), including the mailing address 
and any forms that may be available. Finally, the statement would 
explain that the individual has the right to file a written statement 
of disagreement that would be maintained with the disputed information 
and the procedure for filing such a statement of disagreement.
    If the individual chooses to file a statement of disagreement, then 
the covered plan or provider must retain a copy of the statement with 
the protected health information in dispute. The covered plan or 
provider could require that the statement be a reasonable length, 
provided that the individual has reasonable opportunity to state the 
nature of the disagreement and offer his or her version of accurate and 
complete information. In all subsequent disclosures of the information 
requested to be amended or corrected, the covered plan or provider 
would be required to include a copy of its statement of the basis for 
denial and, if provided by the individual, a copy of his or her 
statement of disagreement. If the statement submitted by the individual 
is unreasonably long, the covered plan or provider could include a 
summary in subsequent disclosures which reasonably explains the basis 
of the individual's position. The covered plan or provider would also 
be permitted to provide a rebuttal to the individual's statement of 
disagreement and include the rebuttal statement in any subsequent 
disclosures.
    We considered requiring the covered plan or provider to provide a 
mechanism for appealing denials of amendment or correction but 
concluded that it would be too burdensome. We are soliciting comment on 
whether the approach we have adopted reasonably balances the burdens on 
covered plans or providers with the rights of individuals.
    v. Receipt of a notification of amendment or correction.
    If a covered plan or provider receives a notification of erroneous 
or incomplete protected health information as provided in proposed 
Sec. 164.516(d), we are proposing that the covered plan or provider or 
be required to make the necessary amendment or correction to protected 
health information in its custody that would be available for 
inspection and copying. This affirmative duty to incorporate amendments 
and corrections would be necessary to ensure that individuals' 
protected health information is as accurate and complete as possible as 
it travels through the health care system.

G. Administrative Requirements  (Sec. 164.518)

[Please label comments about this section with the subject: 
``Introduction to administrative requirements'']
    In Sec. 164.518, we are proposing general administrative 
requirements for covered entities. We would require all covered 
entities to designate a privacy official, train members of their 
workforce regarding privacy requirements, safeguard protected health 
information, and establish sanctions for members of the workforce who 
do not abide by the entity's privacy policies and procedures. In 
addition, we are proposing that covered plans and providers be required 
to establish a means for individuals to complain to the covered plan or 
provider if they believe that their privacy rights have been violated. 
In the discussions of each proposed provision, we provide examples of 
how different kinds of covered entities could satisfy these 
requirements.
1. Designation of a Privacy Official  (Sec. 164.518(a))
[Please label comments about this section with the subject: ``Privacy 
official'']
    In proposed Sec. 164.518(a)(1), we would require covered entities 
to designate an employee or other person to serve as the official 
responsible for the development of policies and procedures for the use 
and disclosure of protected health information. The designation of an 
official would focus the responsibility for development of privacy 
policy.
    We considered whether covered entities should be required to 
designate a single official or an entire board. We concluded that a 
single official would better serve the purposes of focusing the 
responsibility and providing accountability within the entity. The 
implementation of this requirement would depend on the size of the 
entity. For example, a small physician's practice might designate the 
office manager as the privacy official, and he or she would assume this 
as one of his or her broader administrative responsibilities. A large 
entity might appoint a person whose sole responsibility is privacy 
policy, and he or she might choose to convene a committee representing 
several different components of the entity to develop and implement 
privacy policy.
    In proposed Sec. 164.518(a)(2), we would require a covered entity 
to designate a contact person or office to receive complaints and 
provide information about the matters covered by the entity's notice. 
The covered entity could, but would not be required to, designate the 
designated privacy official as the entity's contact person.
    In proposed Sec. 164.512, we would require the covered plan or 
provider's privacy notice to include the name of a contact person for 
privacy matters. We would not require that the contact person and the 
designated privacy official be the same person. This would be left to 
the discretion of each covered entity.
2. Training  (Sec. 164.518(b))
[Please label comments about this section with the subject: 
``Training'']
    In proposed Sec. 164.518(b), we would require covered entities to 
provide training on the entities policies and procedures with respect 
to protected health information. Each entity would be required to 
provide initial training by the date on which this proposed rule 
becomes applicable. After that date, each covered entity would have to

[[Page 59989]]

provide training to new members of the workforce within a reasonable 
time period after joining the entity. In addition, we are proposing 
that when a covered entity makes material changes in its privacy 
policies or procedures, it would be required to retrain those members 
of the workforce whose duties are directly affected by the change 
within a reasonable time of making the change.
    The entities would be required to train all members of the 
workforce (e.g., all employees, volunteers, trainees, and other persons 
under the direct control of a persons working on behalf of the covered 
entity on an unpaid basis who are not business partners) who are likely 
to have contact with protected health information.
    Upon completion of the training, the person would be required to 
sign a statement certifying that he or she received the privacy 
training and will honor all of the entity's privacy policies and 
procedures. Entities would determine the most effective means of 
communicating with their workforce. For example, in a small physician 
practice, the training requirement could be satisfied by providing each 
new member of the workforce with a copy of the practice's information 
policies and requiring members of the workforce to acknowledge that 
they have reviewed the policies. A large health plan could provide for 
a training program with live instruction, video presentations or 
interactive software programs. The small physician practice's solution 
would not protect the large plan's data, and the plan's solution would 
be neither economically feasible nor necessary for the small physician 
practice.
    At least once every three years after the initial training, covered 
entities would be required to have each member of the workforce sign a 
new statement certifying that he or she will honor all of the entity's 
privacy policies and procedures. The initial certification would be 
intended to make members of the workforce aware of their duty to adhere 
to the entity's policies and procedures. By requiring a recertification 
every three years, they would be reminded of this duty.
    We considered several different options for recertification. We 
considered proposing that members of the workforce be required to 
recertify every six months, but concluded that such a requirement would 
be too burdensome. We considered proposing that recertification be 
required annually consistent with the recommendations of The American 
Health Information Management Association (Brandt, Mary D., Release and 
Disclosure: Guidelines Regarding Maintenance and Disclosure of Health 
Information, 1997). We concluded that annual recertification could also 
impose a significant burden on covered entities.
    We also considered requiring that the covered entity provide 
``refresher'' training every three years in addition to the 
recertification. We concluded that our goals could be achieved by only 
requiring recertification once every three years, and retraining in the 
event of material changes in policy. We are soliciting comment on this 
approach.
3. Safeguards  (Sec. 164.518(c))
[Please label comments about this section with the subject: 
``Safeguards'']
    In proposed Sec. 164.518(c), we would require covered entities to 
put in place administrative, technical, and physical safeguards to 
protect against any reasonably anticipated threats or hazards to the 
privacy of the information, and unauthorized uses or disclosures of the 
information. We proposed similar requirements for certain electronic 
information in the Notice of Proposed Rulemaking entitled the Security 
and Electronic Signature Standards (HCFA-0049-P), which can be found at 
63 FR 43241. We are proposing parallel and consistent requirements for 
safeguarding the privacy of protected health information.
    a. Verification procedures. As noted in section II.E. above, for 
many permitted disclosures the covered entity would be responding to a 
request for disclosure of protected health information. For most 
categories of permitted disclosures, when the request for disclosure of 
protected health information is from a person with whom the covered 
entity does not routinely do business, we would require the covered 
entity to verify the identity of the requestor. In addition, for 
certain categories of disclosures, covered entities would also be 
required to verify the requestor's legal authority to make the request.
    Under Sec. 164.514, a covered entity would be required to give 
individuals access to protected health information about them (under 
most circumstances). The covered entity would also be required to take 
reasonable steps to verify the identity of the individual making the 
request for access. We do not propose to mandate particular 
identification requirements (e.g., drivers licence, photo ID, etc), but 
rather would leave this to the discretion of the covered entity.
    Covered entities would be required to verify both the identity of 
persons requesting protected health information and their authority for 
requesting such information when the request is from a person with whom 
the covered entity does not routinely do business and the disclosure 
would be permitted by the following subsections of Sec. 164.510: under 
Sec. 164.510(b) for public health, under Sec. 164.510(c) for oversight, 
under Sec. 164.510(e) to coroners and medical examiners, under 
Sec. 164.510(f) for law enforcement, under Sec. 164.510(g) for 
governmental health data systems, under Sec. 164.510(m) for special 
classes, and for disclosures required by other laws under 
Sec. 164.510(n). Covered entities would be required to verify the 
identity of the requester by examination of reasonable evidence, such 
as a written statement of identity on agency letterhead, an 
identification badge, or similar proof of official status. Similarly, 
covered entities would be required to verify the legal authority 
supporting the request by examination of reasonable evidence, such as a 
written request provided on agency letterhead that describes the legal 
authority for requesting the release. Unless Sec. 164.510 explicitly 
requires written evidence of legal process or other authority before a 
disclosure may be made, a public official's proof of identity and the 
official's oral statement that the request is authorized by law would 
be presumed to constitute the required reasonable evidence of legal 
authority. Where Sec. 164.510 does require written evidence of legal 
process or authority, only the required written evidence will suffice.
    We considered specifying the type of documentation or proof that 
would be acceptable, but decided that the burden of such specific 
regulatory requirements on covered entities would be unnecessary. 
Therefore, we propose only a general requirement for reasonable 
verification of identity and legal authority.
    In Sec. 164.522, we would require disclosure to the Secretary for 
purposes of enforcing this regulation. When a covered entity is asked 
by the Secretary to disclose protected health information for 
compliance purposes, the covered entity should verify the same 
information that it would verify for any other law enforcement or 
oversight request for disclosure.
    In some circumstances a person or entity acting on behalf of a 
government agency may make a request for disclosure of protected health 
information under these subsections. For example, public health 
agencies may contract with a nonprofit agency to collect and analyze 
certain data. In such cases the covered entity would be required to 
verify the requestor's identity and authority through

[[Page 59990]]

examination of reasonable documentation that the requestor is acting on 
behalf of the government agency. Reasonable evidence would include a 
written request provided on agency letterhead that describes the legal 
authority for requesting the release and states that the person or 
entity is acting under the agency's authority, or other documentation, 
including a contract, a memorandum of understanding, or purchase order 
that confirms that the requestor is acting on behalf of the government 
agency.
    For disclosures permitted under Sec. 164.510(k) for emergency 
circumstances and under Sec. 164.510(l) to next-of-kin, legal authority 
for the request would not be an issue. Therefore covered entities would 
only be required to verify the identity of the person requesting the 
disclosure. Where protected health information is requested by next-of-
kin, covered entities would be required to make reasonable verbal 
attempts to establish the identity of the person making the request. 
Written proof would not be required. Covered entities could rely on 
prior acquaintance with the next-of-kin; verbal verification of 
identity would not be required at each encounter. Where protected 
health information is requested in an emergency, the covered entity 
would similarly not be required to demand written proof that the person 
requesting the protected health information is legally authorized. 
Reasonable reliance on verbal representations would be appropriate in 
such situations.
    When another person is acting as the individual through power of 
attorney or other legal authority, covered entities would also be 
required to make reasonable attempts to ascertain that the person 
making the request has the necessary legal authority or relationship in 
order to make the disclosure. For example, a health care provider could 
require a copy of a power of attorney, or could ask questions to 
determine that an adult acting for a young child has the requisite 
relationship to the child.
    Most disclosures under Sec. 164.510(i) are routine transactions 
with banking and other financial institutions. As noted above, for 
routine transactions there would be no verification requirements. 
However, should such financial institution make a special request for 
information in addition to the information routinely provided for 
payment purposes (e.g., pursuant to a fraud or similar investigation), 
the covered entity would be required to obtain reasonable evidence of 
the identity of the person requesting the information.
    The conditions for disclosures for judicial and administrative 
proceedings and research are discussed in Sec. 164.510 (d) and 
Sec. 164.510(j), respectively. Conditions for permitted disclosures 
under Sec. 164.510(h) for facility directories include no verification 
requirements.
    b. Whistleblowers. In Section Sec. 164.518(c)(4), we would address 
the issue of disclosures by employees or others of protected health 
information in whistleblower cases. We would clarify that under the 
proposed rule, a covered entity would not be held in violation because 
a member of their workforce or a person associated with a business 
partner of the covered entity discloses protected health information 
that such person believes is evidence of a civil or criminal violation, 
and the disclosure is: (1) Made to relevant oversight agencies and law 
enforcement or (2) made to an attorney to allow the attorney to 
determine whether a violation of criminal or civil law has occurred or 
to assess the remedies or actions at law that may be available to the 
person disclosing the information.
    Allegations of civil and criminal wrongdoing come from a variety of 
sources. Sometimes an individual not otherwise involved in law 
enforcement uncovers evidence of wrongdoing, and wishes to bring that 
evidence to the attention of appropriate authorities. Persons with 
access to protected health information sometimes discover evidence of 
billing fraud or similar violations; important evidence of unlawful 
activities may be available to employees of covered entities, such as 
billing clerks or nurses.
    Some whistleblower activities can be accomplished without 
individually identifiable health information. There are, however, 
instances in which only identifiable information will suffice to 
demonstrate that an allegation of wrongdoing merits the investment of 
legal or investigatory resources. A billing clerk who suspects that a 
hospital has engaged in fraudulent billing practices may need to use 
billing records for a set of specific cases to demonstrate the basis of 
his suspicion to an oversight agency.
    The persons who find such evidence are likely to be employees of 
the suspect entity. Congress and the states have recognized the 
importance of whistleblowing activities by acting to protect 
whistleblowers from retaliation. Federal statutes that include 
protections for whistleblowers who contact appropriate authorities 
include the Clear Air Act, the Federal Water Pollution Control Act, the 
Toxic Substances Control Act, and the Safe Drinking Water Act. Congress 
also passed the Whistleblower Protection Act, to protect federal 
employees who complain about improper personnel practices at federal 
agencies. At least eleven states have passed whistleblower protection 
laws that protect both private and public employees who provide 
evidence of wrongdoing to the appropriate authorities, and many more 
states have laws that provide such protections only for public 
employees.
    The qui tam provisions of the Federal False Claims Act go further, 
and provide a mechanism for the individual to prosecute a case against 
a person who has allegedly defrauded the government. Like traditional 
whistleblower actions, qui tam actions were created by the Congress to 
further the public interest in effective government. Qui tam suits are 
an important way that individuals can protect the public interest, by 
investing their own time and resources to help reduce fraud. And, also 
like whistleblower actions, the individual may need protected health 
information to convince an attorney that a viable qui tam case exists.
    We would note that this section would not apply to information 
requested by oversight agencies, law enforcement officials, or 
attorneys, even prior to initiation of an investigation or law suit. It 
would apply only to a disclosure initiated by a member of an entity's 
workforce or a person associated with one of its business partners.
    We are concerned that a person, in the guise of ``whistleblowing,'' 
might, maliciously or otherwise, disclose protected health information 
without any actual basis to believe that there has been a violation of 
the law. We are concerned, however, with adding qualifying language 
that may restrict such disclosures and, therefore, impede the pursuit 
of law violators. We seek comments regarding whether this provision 
should include any limitations (e.g., a requirement that only the 
minimum amount of information necessary for these purposes can be 
disclosed).
4. Internal Complaint Process  (Sec. 164.518(d))
    In proposed Sec. 164.518(d), we would require covered plans and 
providers to have some mechanism for receiving complaints from 
individuals regarding the covered plan's or provider's compliance with 
the requirements of this proposed rule. The covered plan or provider 
would be required to accept complaints about any aspect of their 
practices regarding protected health information. For example, 
individuals would be able to file a complaint when

[[Page 59991]]

they believe that protected health information relating to them has 
been used or disclosed improperly, that an employee of the plan or 
provider has improperly handled the information, that they have 
wrongfully been denied access to or opportunity to amend the 
information, or that the entity's notice does not accurately reflect 
its information practices. We would not require that the entity develop 
a formal appeals mechanism, nor that ``due process'' or any similar 
standard be applied. We would not require that covered entities respond 
in any particular manner or time frame. We are proposing two basic 
requirements for the complaint process. First, the covered plan or 
provider would be required to identify a contact person or office in 
the notice of information practices for receiving complaints. This 
person or office could either be responsible for handling the 
complaints or could put the individual in touch with the appropriate 
person within the entity to handle the particular complaint. See 
proposed Sec. 164.512. This person could, but would not have to be, the 
entity's privacy official. See Sec. 164.518(a)(2). Second, the covered 
plan or provider would be required to maintain a record of the 
complaints that are filed and a brief explanation of the resolution, if 
any.
    Covered plans and providers could implement this requirement 
through a variety of mechanisms based on their size and capabilities. 
For example, a small practice could assign a clerk to log in written 
and/or verbal complaints as they are received, and assign one physician 
to review all complaints monthly, address the individual situations and 
make changes to policies or procedures as appropriate. Results of the 
physician's review of individual complaints then could be logged by the 
clerk. A larger provider or health plan could choose to implement a 
formal appeals process with standardized time frames for response.
    We considered requiring covered plans and providers to provide a 
formal internal appeal mechanism, but rejected that option as too 
costly and burdensome for some entities. We also considered eliminating 
this requirement entirely, but rejected that option because a complaint 
process would give covered plans or providers a way to learn about 
potential problems with privacy policies or practices, or training 
issues. We also hope that providing an avenue for covered plans or 
providers to address complaints would lead to increased consumer 
satisfaction. We believe this approach strikes a reasonable balance 
between allowing covered plans or providers flexibility and 
accomplishing the goal of promoting attention to improvement in privacy 
practices. If an individual and a covered plan or provider are able to 
resolve the individual's complaint, there may be no need for the 
individual to file a complaint with the Secretary under proposed 
Sec. 164.522(b). However, an individual has the right to file a 
complaint with the Secretary at any time. An individual may file a 
complaint with the Secretary before, during, after, or concurrent with 
filing a compliant with the covered plan or provider or without filing 
a complaint with the covered plan or provider.
    We are considering whether modifications of these complaint 
procedures for intelligence community agencies may be necessary to 
address the handling of classified information and solicit comment on 
the issue.
5. Sanctions  (Sec. 164.518(e))
[Please label comments about this section with the subject: 
``Sanctions'']
    In proposed Sec. 164.518(e), we would require all covered entities 
to develop and apply when appropriate sanctions for failure to comply 
with policies or procedures of the covered entity or with the 
requirements of this proposed rule. All members of the workforce who 
have regular contact with protected health information should be 
subject to sanctions, as would the entity's business partners. Covered 
entities would be required to develop and impose sanctions appropriate 
to the nature of the issue. The type of sanction applied would vary 
depending on factors such as the severity of the violation, whether the 
violation was intentional or unintentional, and whether the violation 
indicates a pattern or practice of improper use or disclosure of 
protected health information. Sanctions could range from a warning to 
termination.
    We considered specifying particular sanctions for particular kinds 
of violations of privacy policy, but rejected this approach for several 
reasons. First, the appropriate sanction will vary with the entity's 
particular policies. Because we cannot anticipate every kind of privacy 
policy in advance, we cannot predict the response that would be 
appropriate when that policy is violated. In addition, it is important 
to allow covered entities to develop the sanctions policies appropriate 
to their business and operations.
6. Duty To Mitigate  (Sec. 164.518(f))
[Please label comments about this section with the subject: ``Duty to 
mitigate'']
    We propose that covered entities be required to have procedures for 
mitigating, to the extent practicable, any deleterious effect of a use 
or disclosure of protected health information by their members of their 
workforce or business partners.
    With respect to business partners, we also propose that covered 
entities have an affirmative duty to take reasonable steps in response 
to breaches of contract terms. For example, a covered entity that 
becomes aware that a business partner has improperly disclosed 
protected health information could require that business partner to 
take steps to retrieve the disclosed information. The covered entity 
also could require that business partner to adopt new practices to 
better assure that protected health information is appropriately 
handled. Covered entities generally would not be required to monitor 
the activities of their business partners, but would be required to 
take steps to address problems of which they become aware, and, where 
the breach is serious or repeated, would also be required to monitor 
the business partner's performance to ensure that the wrongful behavior 
has been remedied. For example, the covered entity could require the 
business partner to submit reports or subject itself to audits to 
demonstrate compliance with the contract terms required by this rule. 
Termination of the arrangement would be required only if it becomes 
clear that a business partner cannot be relied upon to maintain the 
privacy of protected health information provided to it.
    We expect that sanctions would be more formally described and 
consistently carried out in larger, more sophisticated entities. 
Smaller, less sophisticated entities would be given more latitude and 
flexibility. For such smaller entities and less sophisticated entities, 
we would not expect a prescribed sanctions policy, but would expect 
that actions be taken if repeated instances of violations occur.

H. Development and Documentation of Policies and Procedures  
(Sec. 164.520)

[Please label comments about this section with the subject: ``Policies 
and procedures'']
    In proposed Sec. 164.520, we would require covered entities to 
develop and document their policies and procedures for implementing the 
requirements of this rule. This requirement is intended as a tool to 
facilitate covered entities' efforts to develop appropriate policies to 
implement this rule, to ensure that the members of its workforce and 
business partners understand and carry out expected privacy practices, 
and to assist

[[Page 59992]]

covered entities in developing a notice of information practices.
    The scale of the policies developed should be consistent with the 
size of the covered entity. For example, a smaller employer could 
develop policies restricting access to health plan information to one 
designated employee, empowering that employee to deny release of the 
information to corporate executives and managers unless required for 
health plan administration. Larger employers could have policies that 
include using contractors for any function that requires access to 
protected health information or requiring all reports they receive for 
plan administration to be de-identified unless individual authorization 
is obtained.
    Clearly, implementation of these requirements would differ 
significantly based on the size, capabilities and activities of each 
covered entity. A solo practitioner's documentation of her policies and 
procedures could provide relatively straightforward statements, such 
as:

    This practice does not use or disclose any protected health 
information that is not authorized or permitted under the federal 
privacy regulation and therefore does not request any authorized 
disclosures from patients. Staff R.N. reviews all individually 
authorized requests for disclosures to ensure they contain all 
required elements and reviews the copied information to ensure only 
authorized information is released in response. Information requests 
that would require extensive redaction will be denied.

    Larger entities with many functions and business relationships and 
who are subject to multi-state reporting and record-keeping 
requirements would need to develop and document more extensive 
policies. A health plan would need to describe all activities that 
would be considered health care operations and identify the use and 
disclosure requirements of each activity. A health plan may determine 
that underwriting department employees must provide a written request, 
approved by a team leader, to access any identifiable claims 
information; that such requests must be retained and reviewed every 
quarter for appropriateness; and the underwriting department must 
destroy such information after use for an approved activity. We urge 
professional associations to develop model policies, procedures and 
documentation for their members of all sizes.
    We are proposing general guidelines for covered entities to develop 
and document their own policies and procedures. We considered a more 
uniform, prescriptive approach but concluded that a single approach 
would be neither effective in safeguarding protected health information 
nor appropriate given the vast differences among covered entities in 
size, business practices and level of sophistication. It is important 
that each covered entity's internal policies and procedures for 
implementing the requirements of this regulation are tailored to the 
nature and number of its business arrangements, the size of its patient 
population, its physical plant and computer system, the size and 
characteristics of its workforce, whether it has one or many locations, 
and similar factors. The internal policies and procedures appropriate 
for a clearinghouse would not be appropriate for a physician practice; 
the internal policies and procedures appropriate for a large, multi-
state health plan would not be appropriate for a smaller, local health 
plan.
    After evaluating the requirements of federal, State, or other 
applicable laws, covered entities should develop policies and 
procedures that are appropriate for their size, type, structure, and 
business arrangements. Once a covered plan or provider has developed 
and documented all of the policies and procedures as required in this 
section, it would have compiled all of the information needed to 
develop the notice of information practices required in Sec. 164.512. 
The notice is intended to include a clear and concise summary of many 
of the policies and procedures discussed in this section. Further, if 
an individual has any questions about the entity's privacy policies 
that are not addressed by the notice, a representative of the entity 
can easily refer to the documented policies and procedures for 
additional information.
    Before making a material change in a policy or procedure, the 
covered entity would, in most instances, be required to make the 
appropriate changes to the documentation required by this section 
before implementing the change. In addition, covered plans and 
providers would be required to revise the notice of information 
practices in advance. Where the covered entity determines that a 
compelling reason exists to take an action that is inconsistent with 
its documentation or notice before making the necessary changes, it may 
take such action if it documents the reasons supporting the action and 
makes the necessary changes within 30 days of taking such action.
    In an attempt to ensure that large entities develop coordinated and 
comprehensive policies and procedures as required by this section, we 
considered proposing that entities with annual receipts greater than $5 
million 5 be required to have a privacy board review and 
approve the documentation of policies and procedures. As originally 
conceived, the privacy board would only serve to review research 
protocols as described in Sec. 164.510(j). We believe that such a board 
could also serve as ``privacy experts'' for the covered entity and 
could review the entity's documented policies and procedures. In this 
capacity, the overriding objective of the board would be to foster 
development of up-to-date, individualized policies that enable the 
organization to protect health information without unnecessarily 
interfering with the treatment and payment functions or business needs. 
This type of review is particularly important for large entities who 
would have to coordinate policies and procedures among a large staff, 
but smaller organizations would be encouraged, but not required, to 
take a similar approach (i.e., have a widely representative group 
participate in the development and/or review of the organization's 
internal privacy policies and the documentation thereof). We solicit 
comment on this proposal.
---------------------------------------------------------------------------

    \5\ The Small Business Administration defines small businesses 
in the health care field as those generating less than $5 million 
annually. Small businesses represent approximately 85% of health 
care entities.
---------------------------------------------------------------------------

    We also considered requiring the covered entity to make its 
documentation available to persons outside the entity upon request. We 
rejected this approach because covered entities should not be required 
to share their operating procedures with the public, or with their 
competitors.
    We recognize that the documentation requirement in this proposed 
rule would impose some paperwork burden on covered plans and providers. 
However, we believe that it is necessary to ensure that covered plans 
and providers establish privacy policies procedures in advance of any 
requests for disclosure, authorization, or subject access. It is also 
necessary to ensure that covered entities and members of their 
workforce have a clear understanding of the permissible uses and 
disclosures of protected health information and their duty to protect 
the privacy of such information under specific circumstances.
1. Uses and Disclosures of Protected Health Information
    We propose that covered entities be required to develop and 
document policies and procedures for how protected health information 
would be used and disclosed by the entity and its

[[Page 59993]]

business partners. The documentation would include policies to ensure 
the entity is in compliance with the requirements for use and 
disclosure pursuant to an individual's authorization. This would also 
include documentation of how the covered entity would comply with 
individual's revocation of an authorization, as provided in proposed 
Sec. 164.508(e). For example, upon receipt of a revocation, the entity 
may need to take steps to notify each business partner that is 
responsible for using or disclosing protected health information on 
behalf of the covered entity based on the individual's authorization. 
Because the entity is ultimately responsible for the protected health 
information, it may want written confirmation from the business partner 
that it received notice of the revocation.
    The covered entity would be required to include policies and 
procedures necessary to address disclosures required by applicable law. 
For example, the covered entity may want to include a list of the 
relevant reporting requirements such as those for abuse, neglect and 
communicable disease and its policies and procedures for complying with 
each requirement.
    It would also include policies and procedures for uses and 
disclosures without the individual's authorization, including uses and 
disclosures for treatment, payment and health care operations under 
Sec. 164.506(a)(1)(i). The documentation should address all of the 
legally permissible uses and disclosures that the covered entity is 
reasonably likely to make and should clearly specify the policy of the 
entity with respect to each. For example, all covered plans and 
providers face a reasonable likelihood of a request for disclosure from 
a health oversight agency, so every covered plan and provider should 
develop and document policies and procedures for responding to such 
requests. However, a provider that only treats adults would not need to 
specify a policy with respect to state laws that authorize disclosure 
relating to measles in young children. In this latter case, the 
provider knows that he or she is not reasonably likely to make such a 
disclosure and therefore, could wait until he or she is presented with 
such a request before developing the necessary policies and procedures.
    The documentation would include the entity's policies and procedure 
for complying with the requirements of proposed Sec. 164.506(e) for 
disclosing protected health information to business partners, including 
policies and procedures for monitoring the business partners, 
mitigating harm, and imposing sanctions where appropriate.
    It would address the policies and procedures for implementation of 
the minimum necessary requirement as provided in proposed 
Sec. 164.506(b). It would also include policies and procedures 
addressing the creation of de-identified information pursuant to 
Sec. 164.506(d). For example, a plan could have a policy that requires 
employees to remove identifiers from protected health information for 
all internal cost, quality, or performance evaluations. The plan would 
document this policy and the procedures for removing the identifiers.
2. Individual Requests for Restricting Uses and Disclosures
    We propose to require covered health care providers to document how 
they would implement an individual's request to restrict uses and 
disclosures. Under proposed Sec. 164.506(c)(1)(iii), a covered entity 
need not agree to such restrictions. This section of the documentation 
would describe who (if anyone) in the covered entity is permitted to 
agree to such restrictions, and if such restrictions were accepted, how 
they would be implemented. For example, a provider may require that 
once an individual has requested a limitation on a use or disclosure, 
the affected information is stamped, marked or kept in a separate file. 
The provider could also have a policy of never agreeing to requests for 
such restrictions.
3. Notice of Information Practices
    We propose to require covered plans and providers to document their 
policies and procedures for complying with the requirement in 
Sec. 164.512 to develop, make available or disseminate, and amend their 
notices of information practices. This documentation would address, at 
a minimum, who is responsible for developing and updating the notice, 
who would serve as the ``contact'' person on the notice, how the notice 
would be disseminated to individuals, and how to respond to inquiries 
regarding information practices.
4. Inspection and Copying
    We propose to require covered plans and providers to document 
policies and procedures to address how they would receive and comply 
with individual requests for inspection, and copying, in compliance 
with Sec. 164.514 of this proposed rule. Policies and procedures should 
address, at a minimum, a listing of the designated record sets to which 
access will be provided, any fees to be charged, and the reasons (if 
any) that the entity would deny a request for inspection and copying.
5. Amendment or Correction
    We propose to require covered plans and providers to develop and 
document policies and procedures to address how they would receive and 
comply with individual requests for amendment or correction of their 
records, in compliance with Sec. 164.516 of this proposed rule. 
Policies and procedures should include the process for determining 
whether a request for amendment or correction should be granted, the 
process to follow if a request is denied, and how the entity would 
notify other entities, including business partners, if the request is 
accepted. For example, if a covered entity accepts an individual's 
request for an amendment or correction, the entity could document 
specific procedures regarding how to make the appropriate additions or 
notations to the original information. Without such documentation, 
members of the workforce could accidentally expunge or remove the 
incorrect information.
6. Accounting for Disclosures
    We propose to require covered entities to develop and document 
their policies and procedures for complying with the requirement in 
Sec. 164.515 to provide on request an accounting for disclosures for 
purposes other than treatment, payment or health care operations. In 
order to respond to requests for accounting within a reasonable period 
of time, the entity would need to have a system for accounting in place 
well in advance of any potential requests. The entity would need to 
evaluate its record keeping system and determine how best to build in 
the capacity to respond to such a request. For example, if the entity 
chooses to keep a regular log of disclosures, it would have to begin 
keeping such logs routinely. If instead the entity chooses to rely on a 
record keeping system to reconstruct an accounting, it should develop 
appropriate procedures for members of the workforce to follow when 
faced with an individual's request.
7. Administrative Requirements
    We propose to require covered entities to document their policies 
and procedures for complying with the applicable administrative 
requirements in proposed Sec. 164.518. This would include designation 
of the privacy official required by Sec. 164.518(a) including a 
description of his or her responsibilities; a description of how the 
entity would comply with the

[[Page 59994]]

training and certification requirements for members of its workforce 
under Sec. 164.518(b); a description of the covered entity's safeguards 
required by Sec. 164.518(c); a description of how the covered plan or 
provider would meet the requirements of Sec. 164.518(d) to receive 
individual's complaints; a description of how the covered entity would 
meet the requirements for sanctioning members of its workforce under 
Sec. 164.518(e); and a description of how the covered entity would take 
steps to mitigate any deleterious effect of a use or disclosure of 
protected health information as required by Sec. 164.518(f).
    The documentation would also address how access to protected health 
information is regulated by the entity, including safeguards, including 
the procedures that would be required by proposed Sec. 164.518. For 
covered entities that are part of a larger organization that is not a 
covered entity (e.g., an on-site clinic at a university or the group 
health plan component of an employer), we would require such entities 
to develop and document policies and procedures that ensure that 
protected health information does not flow outside the health care 
component of the organization in violation of this proposed rule. For 
example, a school-based health clinic should have policies and 
procedures to prevent treatment information from crossing over into the 
school's record system.
    Many disclosures would require verification of the identity of the 
person making the request, and sometimes also verification of the legal 
authority behind the request. The documentation required by this 
section would include a description of the entity's verification 
policies (e.g., what proof would be acceptable), and who would be 
responsible for ensuring that the necessary verification has occurred 
before the information is disclosed.
8. Record Keeping Requirements
    We propose record keeping requirements related to several 
provisions. In addition to the documentation of policies and procedures 
described above, we would require covered entities, as applicable, to: 
document restrictions on uses and disclosures agreed to pursuant to 
Sec. 164.506(c); maintain copies of authorization forms and signed 
authorizations (Sec. 164.508) and contracts used with business partners 
(Sec. 164.506(e)); maintain notices of information practices developed 
under Sec. 164.512; maintain written statements of denials of requests 
for inspection and copying pursuant to Sec. 164.514; maintain any 
response made to a request from an individual for amendment or 
correction of information, either in the form of the correction or 
amendment or the statement of the reason for denial and, if supplied, 
the individual's statement of disagreement, for as long as the 
protected health information is maintained (Sec. 164.516); maintain 
signed certifications by members of the workforce required by 
Sec. 164.518(b); and, maintain a record of any complaints received 
(Sec. 164.518(d)). Unless otherwise addressed in this proposal, covered 
entities would be required to retain these documents for six years, 
which is the statute of limitations period for the civil penalties. We 
note that additional records or compliance reports may be required by 
the Secretary for enforcement of this rule. (Sec. 164.522(d)(1)).

I. Relationship to Other Laws

1. Relationship to State Laws
[Please label comments about this section with the subject: 
``Relationship to State laws'']
    Congress addressed the issue of preemption of State law explicitly 
in the statute, in section 1178 of the Act. Consonant with the 
underlying statutory purpose to simplify the financial and 
administrative transactions associated with the provision of health 
care, the new section 1178(a)(1) sets out a ``general rule'' that State 
law provisions that are contrary to the provisions or requirements of 
part C of title XI or the standards or implementation specifications 
adopted or established thereunder are preempted by the federal 
requirements. The statute provides three exceptions to this general 
rule: (1) For State laws which the Secretary determines are necessary 
to prevent fraud and abuse, ensure appropriate State regulation of 
insurance and health plans, for State reporting on health care 
delivery, and other purposes; (2) for State laws which address 
controlled substances; and (3) for State laws relating to the privacy 
of individually identifiable health information which, as provided for 
by the related provision of section 264(c)(2), are contrary to and more 
stringent than the federal requirements. Section 1178 also carves out, 
in sections 1178(b) and 1178(c), certain areas of State authority which 
are not limited or invalidated by the provisions of part C of title XI; 
these areas relate to public health and State regulation of health 
plans.
    Section 264 of HIPAA contains a related preemption provision. 
Section 264(c)(2) is, as discussed above, an exception to the ``general 
rule'' that the federal standards and requirements preempt contrary 
State law. Section 264(c)(2) provides, instead, that contrary State 
laws that relate to the privacy of individually identifiable health 
information will not be preempted by the federal requirements, if they 
are ``more stringent'' than those requirements. This policy, under 
which the federal privacy protections act as a floor, but not a ceiling 
on, privacy protections, is consistent with the Secretary's 
Recommendations.
    Aside from the cross-reference to section 264(c)(2) in section 
1178(a)(2)(B), several provisions of section 1178 relate to the 
proposed privacy standards. These include the general preemption rule 
of section 1178(a)(1), the carve-out for public health and related 
reporting under section 1178(b), and the carve-out for reporting and 
access to records for the regulation of health plans by States under 
section 1178(c). Other terms that occur in section 264(c)(2) also 
appear in section 1178: The underlying test for preemption--whether a 
State law is ``contrary'' to the federal standards, requirements or 
implementation specifications--appears throughout section 1178(a), 
while the issue of what is a ``State law'' for preemption purposes 
applies throughout section 1178. In light of these factors, it seems 
logical to develop a regulatory framework that addresses the various 
issues raised by section 1178, not just those parts of it implicated by 
section 264(c)(2). Accordingly, the rules proposed below propose 
regulatory provisions covering these issues as part of the general 
provisions in proposed part 160, with sections made specifically 
applicable to the proposed privacy standard where appropriate.
    a. The ``general rule'' of preemption of State law. Section 
1178(a)(1) provides the following ``general rule'' for the preemption 
of State law:

    Except as provided in paragraph (2), a provision or requirement 
under this part (part C of title XI), or a standard or 
implementation specification adopted or established under sections 
1172 through 1174, shall supersede any contrary provision of State 
law, including a provision of State law that requires medical or 
health plan records (including billing information) to be maintained 
or transmitted in written rather than electronic form.

As we read this provision, the provisions and requirements of part C of 
title XI, along with the standards and implementation specifications 
adopted thereunder, do not supplant State law, except to the extent 
such State law is ``contrary'' to the federal statutory or regulatory 
scheme. Moreover, the provisions and requirements of part C of

[[Page 59995]]

title XI, along with the standards and implementation specifications 
adopted thereunder, do not preempt contrary State law where one of the 
exceptions provided for by section 1178(a)(2) applies or the law in 
question lies within the scope of the carve-outs made by sections 
1178(b) and (c). Thus, States may continue to regulate in the area 
covered by part C of title XI and the regulations and implementation 
specifications adopted or established thereunder, except to the extent 
States adopt laws that are contrary to the federal statutory and 
regulatory scheme, and even those contrary State laws may continue to 
be enforceable, if they come within the statutory exceptions or carve-
outs.
    We note, however, that many of the Administrative Simplifications 
regulations will have preemptive effect. The structure of many of the 
regulations, particularly those addressing the various administrative 
transactions, is to prescribe the use of a particular form or format 
for the transaction in question. Where the prescribed form or format is 
used, covered entities are required to accept the transaction. A State 
may well not be able to require additional requirements for such 
transactions consistent with the federally prescribed form or format.
    b. Exceptions for State laws the Secretary determines necessary for 
certain purposes. Section 1178(a)(2) lists several exceptions to the 
general preemption rule of section 1178(a)(1). The first set of 
exceptions are those listed at sections 1178(a)(2)(A)(i) and 
1178(a)(2)(A)(ii). These exceptions are for provisions of State law 
which the Secretary determines are necessary: (1) To prevent fraud and 
abuse; (2) to ensure appropriate State regulation of insurance and 
health plans; (3) for State reporting on health care delivery or costs; 
(4) for other purposes; or (5) which address controlled substances.
    Proposed Sec. 160.203(a) below provides for determinations under 
these statutory provisions. The criteria at proposed Sec. 160.203(a) 
follow the statute. As is more fully discussed below, however, two of 
the terms used in this section of the proposed rules are defined terms: 
``contrary'' and ``State law.'' The process for making such 
determinations is discussed below.
    c. Exceptions for State laws relating to the privacy of 
individually identifiable health information. The third exception to 
the ``general rule'' that the federal requirements, standards, and 
implementation specifications preempt contrary State law concerns State 
laws relating to the privacy of individually identifiable health 
information. Section 1178(a)(2)(B) provides that a State law is 
excepted from this general rule, which, ``subject to section 264(c)(2) 
of the Health Insurance Portability and Accountability Act of 1996, 
relates to the privacy of individually identifiable health 
information.'' Section 264(c)(2) of HIPAA provides that the HIPAA 
privacy regulation, which is proposed in the accompanying proposed 
subpart B of proposed part 160, will not supersede ``a contrary 
provision of State law, if the provision of State law imposes 
requirements, standards, or implementation specifications that are more 
stringent than the requirements, standards, or implementation 
specifications imposed'' under the regulation at proposed subpart E of 
proposed part 164.
    It is recognized that States generally have laws that relate to the 
privacy of individually identifiable health information. These laws 
continue to be enforceable, unless they are contrary to part C of title 
XI or the standards, requirements, or implementation specifications 
adopted or established pursuant to the proposed subpart x. Under 
section 264(c)(2), not all contrary provisions of State privacy laws 
are preempted; rather, the law provides that contrary provisions that 
are also ``more stringent'' than the federal regulatory requirements or 
implementation specifications will continue to be enforceable.
    d. Definitions. There are a number of ambiguities in sections 
1178(a)(2)(B) and 264(c)(2) of HIPAA. Clarifying the statute through 
the regulations will generally provide substantially more guidance to 
the regulated entities and the public as to which requirements, 
standards, and implementation specifications apply. For these reasons, 
the rules propose below to interpret several ambiguous statutory terms 
by regulation.
    There are five definitional questions that arise in considering 
whether or not a State law is preempted under section 264(c)(2): (1) 
What is a ``provision'' of State law? (2) What is a ``State law''? (3) 
What kind of State law, under section 1178(a)(2)(B), ``relates to the 
privacy of individually identifiable health information?'' (4) When is 
a provision of State law at issue ``contrary'' to the analogous 
provision of the federal regulations? (5) When is a provision of State 
law ``more stringent than'' the analogous provision of the federal 
regulations? We discuss these questions and our proposed regulatory 
answers below.
    i. What is a ``provision'' of State law?
    The initial question that arises in the preemption analysis is, 
what does one compare? The statute directs this analysis by requiring 
the comparison of a ``provision of State law [that] imposes 
requirements, standards, or implementations specifications'' with ``the 
requirements, standards, or implementation specifications imposed 
under'' the federal regulation. The statute thus appears to contemplate 
that what will be compared are the State and federal requirements that 
are analogous, i.e., that address the same subject matter. Accordingly, 
a dictionary-type definition of the term ``provision'' does not seem 
appropriate, as the contours of a given ``provision'' will be largely 
defined by the contours of the specific ``requirement[], standard[], or 
implementation specification'' at issue.
    What does one do when there is a State provision and no comparable 
or analogous federal provision, or the converse is the case? The short 
answer would seem to be that, since there is nothing to compare, there 
cannot be an issue of a ``contrary'' requirement, and so the preemption 
issue is not presented. Rather, the stand-alone requirement--be it 
State or federal--is effective. There may, however, be situations in 
which there is a federal requirement with no directly analogous State 
requirement, but where several State requirements in combination would 
seem to be contrary in effect to the federal requirement. This 
situation usually will be addressed through the tests for ``contrary,'' 
discussed below.
    At this juncture, it is difficult to frame options for dealing with 
this issue, because it is not clear that more of a structure is needed 
than the statute already provides. Rather, we solicit comment on how 
the term ``provision'' might be best defined for the purpose of the 
preemption analysis under the statute, along with examples of possible 
problems in making the comparison between a provision of State law and 
the federal regulations.
    ii. What is a ``State law''?
    It is unclear what the term ``provision of State law'' in sections 
1178 and 264(c) means. The question is whether the provision in 
question must, in order to be considered to have preemptive effect, be 
legislatively enacted or whether administratively adopted or judicially 
decided State requirements must also be considered. Congress explicitly 
addressed the same issue in a different part of HIPAA, section 102. 
Section 102 enacted section 2723 of the Public Health Service Act, 
which is a preemption provision that applies to issuers of health 
insurance to ERISA plans. Section 2723 contains in subsection (d)(1) 
the following definition of ``State law'': ``The term

[[Page 59996]]

``State law'' includes all laws, decisions, rules, regulations, or 
other State action having the effect of law, of any State. A law of the 
United States applicable only to the District of Columbia shall be 
treated as a State law rather than a law of the United States.
    By contrast, Congress provided no definition of the term ``State 
law'' in section 264. This omission suggests two policy options. One is 
to adopt the above definition, as a reasonable definition of the term 
and as an indication of what Congress probably intended in the 
preemption context (the policy embodied in section 2723 is analogous to 
that embodied in section 264(c)(2), in the sense that the State laws 
that are not preempted are ones that provide protections to individuals 
that go above and beyond the federal requirements). The other option is 
to argue by negative implication that, since Congress could have but 
did not enact the above definition in connection with sections 264 and 
1178, it intended that a different definition be used, and that the 
most reasonable alternative is to limit the State laws to be considered 
to those that have been legislatively enacted.
    The Department does not consider the latter option to be a 
realistic one. It is legally questionable and is also likely to be 
extremely confusing and unworkable as a practical matter, as it will be 
difficult to divorce State ``laws'' from implementing administrative 
regulations or decisions or from judicial decisions. Also, much State 
``privacy law''--e.g., the law concerning the physician/patient 
privilege--is not found in statutes, but is rather in State common law. 
Finally, since health care providers and others are bound by State 
regulations and decisions, they would most likely find a policy that 
drew a line based on where a legal requirement originated very 
confusing and unhelpful. As a result, we conclude that the language in 
section 102 represents a legally supportable approach that is, for 
practical reasons, a realistic option, and it is accordingly proposed 
in proposed Sec. 160.202 below.
    iii. What is a law that ``relates to the privacy of individually 
identifiable health information''?
    The meaning of the term ``relate to'' has been extensively 
adjudicated in a somewhat similar context, the issue of the preemption 
of State laws by ERISA. Section 514(a) of ERISA (29 U.S.C. 1144(a)) 
provides that ERISA ``shall supersede any and all State laws insofar as 
they may now or hereafter relate to any employee benefit plan.'' 
(Emphasis added.) The U.S. Supreme Court alone has decided 17 ERISA 
preemption cases, and there are numerous lower court cases. The term 
also has been interpreted in other contexts. Thus, there would seem to 
be several options for defining the term ``relates to'': (1) By using 
the criteria developed by the Supreme Court as they evolve, (2) by 
using the criteria developed by the Supreme Court, but on a static 
basis, and (3) based on the legislative history, by setting federal 
criteria.
    The first option would be based on the definition adopted in an 
early ERISA case, Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983), as 
it continues to evolve. In Shaw, a unanimous Supreme Court adopted a 
very broad reading of the term, holding that a law ``relates to'' an 
employee benefit plan ``if it has a connection with or reference to'' 
such a plan. Later cases have developed a more particularized and 
complex definition of this general definition. The Supreme Court has 
also applied the Shaw definition outside of the ERISA context. In 
Morales v. Trans World Airlines, 504 U.S. 374 (1992), the Court defined 
the term ``relating to'' in the Airline Deregulation Act by using the 
definition of the term ``relates to'' developed under the ERISA cases 
above. While this option would appear to be a supportable reading of 
the statutory term, tying the agency interpretation to an evolving 
court interpretation will make it more difficult to make judgments, and 
particular judgments may change as the underlying court interpretations 
change.
    The second option we considered would ``freeze'' the definition of 
``relates to'' as the Court has currently defined it. This option also 
is a supportable reading of the statutory term, but is less of a moving 
target than the prior option. The complexity of the underlying court 
definition presents problems.
    The option selected and reflected in the rules proposed below grows 
out of the movement in recent years of the Supreme Court away from the 
literal, textual approach of Shaw and related cases to an analysis that 
looks more at the purposes and effects of the preemption statute in 
question. In New York State Conference of Blue Cross v. Travelers 
Insurance Co., 514 U.S. 645 (1995), the Court held that the proper 
inquiry in determining whether the State law in question related to an 
employee benefit plan was to look to the objectives of the (ERISA) 
statute as a guide to the scope of the State law that Congress 
understood would survive. The Court drew a similar line in Morales, 
concluding that State actions that affected airline rates, routes, or 
services in ``too tenuous, remote, or peripheral a manner'' would not 
be preempted. 504 U.S. at 384. The Court drew a conceptually consistent 
line with respect to the question of the effect of a State law in 
English v. General Electric Co., 496 U.S. 72, 84 (1990); see also, Gade 
v. National Solid Wastes Management Ass'n., 505 U.S. 88 (1992). The 
Court held that deciding which State laws were preempted by the OSH Act 
required also looking at the effect of the State law in question, and 
that those which regulated occupational safety and health in a ``clear, 
direct, and substantial way'' would be preempted. These cases suggest 
an approach that looks to the legislative history of HIPAA and seeks to 
determine what kinds of State laws Congress meant, in this area, to 
leave intact and also seeks to apply more of a ``rule of reason'' in 
deciding which State laws ``relate to'' privacy and which do not.
    The legislative history of HIPAA offers some insight into the 
meaning of the term ``relates to.'' The House Report (House Rep. No. 
496, 104th Cong., 2d Sess., at 103) states that--

    The intent of this section is to ensure that State privacy laws 
that are more stringent than the requirements and standards 
contained in the bill are not superseded.

Based on this legislative history, one could argue that the ``State 
laws'' covered by the ``relates to'' clause are simply those that are 
specifically or explicitly designed to regulate the privacy of personal 
health information, and not ones that might have the incidental effect 
of doing so. Thus, the option selected below appears to be consistent 
with the Court's approach in Travelers, and, together with the 
``effect'' test, seems to be closer to how the Court is analyzing 
preemption issues. It makes sense on a common sense basis as well, and 
appears, from the little legislative history available, to be what 
Congress intended in this context.
    iv. When is a provision of State law ``contrary'' to the analogous 
federal requirement?
    The statute uses the same language in both section 1178(a)(1) and 
section 264(c)(2) to delineate the general precondition for preemption: 
the provision of State law must be ``contrary'' to the relevant federal 
requirement, standard, or implementation specification; the term 
``contrary,'' however, is not defined. It should be noted that this 
issue (the meaning of the term ``contrary'') does not arise solely in 
the context of the proposed privacy standard. The term ``contrary'' 
appears throughout section 1178(a) and is a precondition for any 
preemption analysis done under that section.

[[Page 59997]]

    The definition set out at proposed Sec. 160.202 embodies the tests 
that the courts have developed to analyze what is known as ``conflict 
preemption.'' In this analysis, the courts will consider a provision of 
State law to be in conflict with a provision of federal law where it 
would be impossible for a private party to comply with both State and 
federal requirements or where the provision of State law ``stands as an 
obstacle to the accomplishment and execution of the full purposes and 
objectives of Congress.'' This latter test has been further defined as, 
where the State law in question ``interferes with the methods by which 
the federal statute was designed to reach (its) goal.'' International 
Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987). In Gade, the Supreme 
Court applied this latter test to preempt an Illinois law and 
regulations that imposed additional, non-conflicting conditions on 
employers, holding that the additional conditions conflicted with the 
underlying congressional purpose to have one set of requirements apply. 
This test, then, is particularly relevant with respect to the other 
HIPAA regulations, where Congress clearly intended uniform standards to 
apply nationwide.
    The Department is of the view that this definition should be 
workable and is probably what Congress intended in using the term--as a 
shorthand reference to the case law. We considered a broader definition 
(``inconsistent with''), but rejected it on the grounds that it would 
have less legal support and would be no easier to apply than the 
statutory term ``contrary'' itself.
    v. What is the meaning of ``more stringent'?
    The issue of when a provision of State law is ``more stringent'' 
than the comparable ``requirements, standards, or implementation 
specifications'' of the HIPAA privacy regulation is not an easy one. In 
general, it seems reasonable to assume that ``more stringent'' means 
``providing greater privacy protection'' but, such an interpretation 
leads to somewhat different applications, depending on the context. For 
example, a State law that provided for fewer and more limited 
disclosures than the HIPAA privacy regulation would be ``more 
stringent.'' At the same time, a State law that provides for more and/
or greater penalties for wrongful disclosures than does the HIPAA 
privacy regulation would also be ``more stringent.'' Thus, in the 
former case, ``more stringent'' means less or fewer, while in the 
latter case, ``more stringent'' means more or greater. In addition, 
some situations are more difficult to characterize. For example, if the 
HIPAA privacy regulation requires disclosure to the individual on 
request and a State law prohibits disclosure in the circumstance in 
question, which law is ``more stringent'' or ``provides more privacy 
protection'?
    A continuum of regulatory options is available. At one end of the 
continuum is the minimalist approach of not interpreting the term 
``more stringent'' further or spelling out only a general 
interpretation, such as the ``provides more privacy protection'' 
standard, and leaving the specific applications to later case-by-case 
determinations. At the other end of the continuum is the approach of 
spelling out in the regulation a number of different applications, to 
create a very specific analytic framework for future determinations. We 
propose below the latter approach for several reasons: specific 
criteria will simplify the determination process for agency officials, 
as some determinations will be already covered by the regulation, while 
others will be obvious; specific criteria will also provide guidance 
for determinations where issue of ``stringency'' is not obvious; courts 
will be more likely to give deference to agency determinations, leading 
to greater uniformity and consistency of expectation; and the public, 
regulated entities, and States will have more notice as to what the 
determinations are likely to be.
    The specific criteria proposed at proposed Sec. 160.202 are 
extrapolated from the principles of the fair information practices that 
underlie and inform these proposed rules and the Secretary's 
Recommendations. For example, limiting disclosure of personal health 
information obviously protects privacy; thus, under the criteria 
proposed below, the law providing for less disclosure is considered to 
be ``more stringent.'' Similarly, as the access of an individual to his 
or her protected health information is considered to be central to 
enabling the individual to protect such information, the criteria 
proposed below treat a law granting greater rights of access as ``more 
stringent.'' We recognize that many State laws require patients to 
authorize or consent to disclosures of their health information for 
treatment and/or payment purposes. We consider individual authorization 
generally to be more protective of privacy interests than the lack of 
such authorization, so such State requirements would generally stand, 
under the definition proposed below.
    However, we would interpret a State law relating to individual 
authorization to be preempted if the law requires, or would permit a 
provider or health plan to require, as a condition of treatment or 
payment for health care, an individual to authorize uses or disclosures 
for purposes other than treatment, payment and health care operations, 
and if such authorization would override restrictions or limitations in 
this regulation relating to the uses and disclosures for purposes other 
than treatment, payment and health care operations. For example, if a 
State law permitted or required a provider to obtain an individual 
authorization for disclosure as a condition of treatment, and further 
permitted the provider to include in the authorization disclosures for 
research or for commercial purposes, the State law would be preempted 
with respect to the compelled authorization for research or commercial 
purposes. At the same time, if a State law required a provider to 
obtain an individual authorization for disclosure as a condition of 
treatment, and further required the provider to include an 
authorization for the provider to disclosure data to a State data 
reporting agency, such a law would not be preempted, because State laws 
that require such data reporting are saved from preemption under 
section Sec. 1178(c) of the statute.
    In addition, to the extent that a State consent law does not 
contain other consent or authorization requirements that parallel or 
are stricter than the applicable federal requirements, those detailed 
federal requirements would also continue to apply. We solicit comment 
in particular on how these proposed criteria would be likely to operate 
with respect to particular State privacy laws.
    e. The process for making administrative determinations regarding 
the preemption of State health information privacy laws. Because States 
generally have laws that relate to the privacy of individually 
identifiable health information, there may be conflicts between 
provisions of various State laws and the federal requirements. Where 
such conflicts appear to exist, questions may arise from the regulated 
entities or from the public concerning which requirements apply. It is 
possible that such questions may also arise in the context of the 
Secretary's enforcement of the civil monetary penalty provisions of 
section 1176. The Secretary accordingly proposes to adopt the following 
process for responding to such comments and making the determinations 
necessary to carry out her responsibilities under section 1176.
    The rules proposed below would establish two related processes: one 
for making the determinations called for by

[[Page 59998]]

section 1178(a)(2)(A) of the Act and the other for issuing advisory 
opinions regarding whether a provision of State law would come within 
the exception provided for by section 1178(a)(2)(B).
    i. Determinations under section 1178(a)(2)(A).
    The rules proposed below should not usually implicate section 
1178(a)(2)(A), which provides that a State law will not be preempted 
where the Secretary determines it is necessary for one or more of five 
specific purposes: (1) To prevent fraud and abuse; (2) to ensure 
appropriate State regulation of insurance and health plans; (3) for 
State reporting on health care delivery or costs; (4) for other 
purposes; or (5) which address controlled substances. The process for 
implementing this statutory provision is proposed here, because the 
issue of how such preemption issues will be handled has been raised in 
prior HIPAA rulemakings and needs to be addressed, and, as explained 
above, the statutory provision itself is fairly intertwined (in terms 
of the specific terms used), with the preemption provisions of the 
statute that relate to privacy.
    The process proposed below for determinations by the Secretary 
would permit States to request an exception to the general rule of 
preemption. The decision to limit, at least as an initial matter, the 
right to request such determinations to States was made for several 
reasons. First, States are obviously most directly concerned by 
preemption, in that it is State legislative, judicial, or executive 
action that the federal requirements supersede. Principles of comity 
dictate that States be given the opportunity to make the case that 
their laws should not be superseded. Second, States are in the best 
position to address the issue of how their laws operate and what their 
intent is, both of which are relevant to the determination to be made. 
Third, we need to control the process as an initial matter, so that the 
Secretary is not overwhelmed by requests. Fourth, where particular 
federal requirements will have a major impact on providers, plans, or 
clearinghouses within a particular State, we assume that they will be 
able to work with their State governments to raise the issue with the 
Secretary; the discussion process that such negotiations should entail 
should help crystallize the legal and other issues for the Secretary 
and, hence, result in better determinations. We emphasize that HHS may 
well revisit this issue, once it has gained some experience with the 
proposed process.
    Proposed Sec. 160.204(a)(1) sets out a number of requirements for 
requests for determinations. In general, the purpose of these 
requirements is to provide as complete a statement as possible of the 
relevant information as an initial matter, to minimize the time needed 
for the Secretarial determination.
    The remaining requirements of proposed Sec. 160.204(a) generally 
are designed to set out an orderly process and effect of the 
determinations. Of particular note is proposed Sec. 160.204(a)(5), 
which provides that such determinations apply only to transactions that 
are wholly intrastate. We recognize that in today's economy, many, 
perhaps most, transactions will be interstate, so that the effect of a 
positive determination could be minimal under this provision. 
Nonetheless, we think that there is no practical alternative to the 
proposed policy. We do not see how it would be practical to split up 
transactions that involved more than one State, when one State's law 
was preempted and the other's was not. We do not see why the non-
preempted law should govern the transaction, to the extent it involved 
an entity in a State whose law was preempted. Quite aside from the 
sovereignty issues such a result would raise, such a result would be 
very confusing for the health care industry and others working with it 
and thus inconsistent with the underlying goal of administrative 
simplification. Rather, such a situation would seem to be a classic 
case for application of federal standards, and proposed 
Sec. 160.204(a)(5) would accordingly provide for this.
    ii. Advisory opinions under section 1178(a)(2)(B).
    The rules proposed below lay out a similar process for advisory 
opinions under section 1178(a)(2)(B). That section of the statute 
provides that, subject to the requirements of section 264(c)(2) (the 
provision of HIPAA that establishes the ``more stringent'' preemption 
test), State laws that ``relate to the privacy of individually 
identifiable health information'' are excepted from the general rule 
that the HIPAA standards, requirements, and implementation 
specifications preempt contrary State law.
    Unlike section 1178(a)(2)(A), section 1178(a)(2)(B) does not 
provide for the making of a determination by the Secretary. 
Nonetheless, it is clear that the Secretary may make judgments about 
the legal effect of particular State privacy laws in making compliance 
and enforcement decisions. It is also foreseeable that the Secretary 
will be asked to take a position on whether particular State privacy 
laws are preempted or not. We have concluded that the best way of 
addressing these concerns is to provide a mechanism by which the 
Secretary can issue advisory opinions, so that the public may be 
informed about preemption judgments the Secretary has made. See 
proposed Sec. 160.204(b).
    The process proposed below for requesting advisory opinions is 
limited to States, for the reasons described in the preceding section. 
The requirements for requests for advisory opinions are similar to the 
requirements for determinations in proposed Sec. 160.204(a), but are 
tailored to the different statutory requirements of sections 
1178(a)(2)(A) and 264(c)(2). As with proposed Sec. 164.204(a), the 
process proposed below would provide for publication of advisory 
opinions issued by the Secretary on an annual basis, to ensure that the 
public is informed of the decisions made in this area.
    f. Carve-out for State public health laws. Section 1178(b) provides 
that ``Nothing in this part shall be construed to invalidate or limit 
the authority, power, or procedures established under any law providing 
for the reporting of disease or injury, child abuse, birth, or death, 
public health surveillance, or public health investigation or 
intervention.'' This section appears to carve out an area over which 
the States have traditionally exercised oversight and authority--the 
collection of vital statistics, the enforcement of laws regarding child 
abuse and neglect, and the conduct of public health surveillance, 
investigation, and intervention. State laws in these areas may involve 
reporting of individually identifiable health information to State or 
local authorities. Section 1178(b) indicates that existing or future 
State laws in these areas are enforceable, notwithstanding any privacy 
requirements adopted pursuant to section 264(c). In addition, covered 
entities should not be inhibited from complying with requests 
authorized by State law for release of information by public health 
authorities for the stated purposes.
    It should be noted that the limitation of section 1178(b) applies 
to the ``authority, power, or procedures established under any law.'' 
Public health laws often convey broad general authorities for the 
designated agency to protect public health, including enforcement 
powers, and these State authorities and powers would remain 
enforceable. Further, section 1178(b) also covers ``procedures'' 
authorized by law; we read this language as including State 
administrative regulations and guidelines.
    The proposed rules propose to address these concerns by treating 
the

[[Page 59999]]

disclosures covered by section 1178(b) as allowable disclosures for 
public health activities under proposed Sec. 164.510(b). Thus, those 
disclosures permitted under proposed Sec. 164.510(b) are intended to 
be, with respect to disclosures authorized by State law, at least as 
broad as section 1178(b). This means that disclosures that are 
authorized by State law but which do not come within the scope of 
proposed Sec. 164.510(b) are considered to fall outside of the 
limitation of section 1178(b). In addition, since similar activities 
and information gathering are conducted by the federal government, 
disclosures to public health authorities authorized by federal law 
would be permitted disclosures under this proposed rule and applicable 
federal law will govern the use and re-disclosure of the information.
    g. Carve-out for State laws relating to oversight of health plans. 
Section 1178(c) provides that nothing in part C of title XI limits the 
ability of States to require health plans ``to report, or to provide 
access to, information for management audits, financial audits, program 
monitoring and evaluation, facility licensure or certification, or 
individual licensure or certification.'' This section thus also carves 
out an area in which the States have traditionally regulated health 
care as an area which the statute intends to leave in place. State laws 
requiring the reporting of or access to information of the type covered 
by section 1178(c) will in certain cases involve the reporting of, or 
access to, individually identifiable health information. Accordingly, 
provision has been made for such reporting and access by making such 
reporting and access permitted disclosures and uses under this proposed 
rule. See proposed Sec. 164.510(c).
2. Relationship to Other Federal Laws
[Please label comments about this section with the subject: 
``Relationship to other federal laws'']
    The rules proposed below also would affect various federal 
programs, some of which may have requirements that are, or appear to 
be, inconsistent with the requirements proposed below. Such federal 
programs include those programs that are operated directly by the 
federal government, such as the health benefit programs for federal 
employees or the health programs for military personnel. They also 
include a wide variety of health services or benefit programs in which 
health services or benefits are provided by the private sector or by 
State or local government, but which are governed by various federal 
laws. Examples of the latter types of programs would be the Medicare 
and Medicaid programs, the health plans governed by the Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. 
(ERISA), the various clinical services programs funded by federal 
grants, and substance abuse treatment programs.
    Some of the above programs are explicitly covered by HIPAA. Section 
1171 of the Act defines the term ``health plan'' to include the 
following federally conducted, regulated, or funded programs: group 
plans under ERISA which either have 50 or more participants or are 
administered by an entity other than the employer who established and 
maintains the plan; federally qualified health maintenance 
organizations; Medicare; Medicaid; Medicare supplemental policies; the 
health care program for active military personnel; the health care 
program for veterans; the Civilian Health and Medical Program of the 
Uniformed Services (CHAMPUS); the Indian health service program under 
the Indian Health Care Improvement Act, 25 U.S.C. 1601, et seq.; and 
the Federal Employees Health Benefits Program. There also are many 
other federally conducted, regulated, or funded programs in which 
individually identifiable health information is created or maintained, 
but which do not come within the statutory definition of ``health 
plan.'' While these latter types of federally conducted, regulated, or 
assisted programs are not explicitly covered by part C of title XI in 
the same way that the programs listed in the statutory definition of 
``health plan'' are covered, the statute may nonetheless apply to 
transactions and other activities conducted under such programs. This 
is likely to be the case where the federal entity or federally 
regulated or funded entity provides health services; the requirements 
of part c are likely to apply to such an entity as a ``health care 
provider.'' Thus, the issue of how different federal requirements apply 
is likely to arise in numerous contexts.
    When two federal statutes appear to conflict, the courts generally 
engage in what is called an ``implied repeal'' analysis. The first step 
in such an analysis is to look for some way in which to reconcile the 
apparently conflicting requirements. Only if the conflicting provisions 
cannot be reconciled do courts reach the second step of the analysis, 
in which they look to see whether the later statute repealed the prior 
statute (to the extent of the conflict) by implication. In making such 
a determination, the courts look to the later statute and its 
legislative history, to see if there is evidence as to whether Congress 
intended to leave the prior statute in place or whether it intended the 
later statute to supersede the prior statute, to the extent of the 
conflict between the two. It is not a foregone conclusion that a later 
statute will repeal inconsistent provisions of a prior statute. Rather, 
there are cases in which the courts have held prior, more specific 
statutes not to be impliedly repealed by later, more general statutes.
    As noted above, the section 1171 of the Act explicitly makes 
certain federal programs subject to the standards and implementation 
specifications promulgated by the Secretary, while entities carrying 
out others are implicitly covered by the scope of the term ``health 
care provider.'' The legislative history of the statute is silent with 
respect to how these requirements were to operate in the federal sector 
vis-a-vis these and other federal programs with potentially conflicting 
requirements. Congress is presumed to have been aware that various 
federal programs that the privacy and other standards would reach would 
be governed by other federal requirements, so the silence of the 
legislative history and the limited reach of the statute would seem to 
be significant. On the other hand, Congress' express inclusion of 
certain federal programs in the statute also has significance, as it 
constitutes an express Congressional statement that the HIPAA standards 
and implementation specifications apply to these programs. In light of 
the absence of relevant legislative history, we do not consider this 
Congressional statement strong enough to support a conclusion of 
implied repeal, where the conflict is one between the HIPAA regulatory 
standards and implementation specifications and another federal 
statute. However, it seems strong enough to support an inference that, 
with respect to these programs, the HIPAA standards and implementation 
specifications establish the federal policy in the case of a conflict 
at the regulatory level.
    Thus, the first principle that applies where both the HIPAA 
standards and implementation specifications and the requirements of 
another federal program apply is that we must seek to reconcile and 
accommodate any apparently conflicting federal requirements. Two 
conclusions flow from this principle. First, where one federal statute 
or regulation permits an activity that another federal statute or 
regulation requires, and both statutes apply to the entity in question, 
there is no conflict, because it is possible to comply with both sets 
of federal requirements.

[[Page 60000]]

Second, where one federal statute or regulation permits, but does not 
require, an activity that another federal statute or regulation 
prohibits, there is again no conflict, because it is possible to comply 
with both sets of federal requirements. In each case, the entity has 
lost some discretion that it would otherwise have had under the more 
permissive set of requirements, but in neither case has it been 
required to do something that is illegal under either federal program.
    There will, however, also be cases where the privacy or other 
Administrative Simplification standards and implementation 
specifications cannot be reconciled with the requirements of another 
federal program. In such a case the issue of implied repeal is 
presented. As suggested above, we think that where the conflict is 
between the privacy or other Administrative simplification regulations 
and another federal statute, the regulatory requirements would give 
way, because there is insufficient evidence to support a finding that 
part C of title XI is intended to repeal other federal laws. For 
example, if other law prohibits the dissemination of classified or 
other sensitive information, this rule's requirements for granting 
individuals' right to copy their own records would give way. Where the 
conflict is between the Administrative Simplification regulatory 
requirements and other federal regulatory requirements that are 
discretionary (not mandated by the other federal law), we think that 
there is also insufficient evidence to support a finding of implied 
repeal of the latter regulatory requirements, where the other federal 
program at issue is not one specifically addressed in section 1171. 
However, where the other federal program at issue is one of the ones 
which Congress explicitly intended to have the Administrative 
Simplification standards and implementation specifications apply to, by 
including them in the definition of ``health plan'' in section 1171, we 
think that there is evidence that the Administrative Simplification 
standards and implementation specifications should prevail over 
contrary exercises of discretion under those programs.
    We considered whether the preemption provision of section 264(c)(2) 
of Public Law 104-191, discussed in the preceding section, would give 
effect to State laws that would otherwise be preempted by federal law. 
For example, we considered whether section 264(c)(2) could be read to 
make the Medicare program subject to State laws relating to information 
disclosures that are more stringent than the requirements proposed in 
this rule, where such laws are presently preempted by the Medicare 
statute. We also considered whether section 264(c)(2) could be read to 
apply such State laws to procedures and activities of federal agencies, 
such as administrative subpoenas and summons, that are prescribed under 
the authority of federal law. In general, we do not think that section 
264(c)(2) would work to apply State law provisions to federal programs 
or activities with respect to which the State law provisions do not 
presently apply. Rather, the effect of section 264(c)(2) is to give 
preemptive effect to State laws that would otherwise be in effect, to 
the extent they conflict with and are more stringent than the 
requirements promulgated under the Administrative Simplification 
authority of HIPAA. Thus, we do not believe that it is the intent of 
section 264(c)(2) to give an effect to State law that it would not 
otherwise have in the absence of section 264(c)(2).
    We explore some ramifications of these conclusions with respect to 
specific federal programs below. We note that the summaries below do 
not identify all possible conflicts or overlaps of the proposed rules 
with other federal requirements; rather, we have attempted to explain 
the general nature of the relationship of the different federal 
programs. We would anticipate issuing more detailed guidance in the 
future, when the final privacy policies are adopted, and the extent of 
conflict or overlap can be ascertained. We also invite comment with 
respect to issues raised by other federal programs.
    a. The Privacy Act. The Privacy Act of 1974, 5 U.S.C. 552a, is not 
preempted or amended by part C of title XI. The Privacy Act applies to 
all federal agencies, and to certain federal contractors who operate 
Privacy Act protected systems of records on behalf of federal agencies. 
It does not, however, apply to non-federal entities that are reached by 
part C. While the proposed rules are applicable to federal and non-
federal entities, they are not intended to create any conflict with 
Privacy Act requirements. In any situation where compliance with the 
proposed rules would lead a federal entity to a result contrary to the 
Privacy Act, the Privacy Act controls. In sections of the proposed 
rules which might otherwise create the appearance of a conflict with 
Privacy Act requirements, entities subject to the Privacy Act are 
directed to continue to comply with Privacy Act requirements.
    Because the Privacy Act gives federal agencies the authority to 
promulgate agency-specific implementing regulations, and because the 
Privacy Act also allows agencies to publish routine uses that have the 
status of exceptions to the Privacy Act's general rule prohibiting 
disclosure of Privacy Act protected information to third parties, the 
issue of possible conflicts between the proposed Administrative 
Simplification rules and existing Privacy Act rules and routine uses 
must be addressed. Where the federal program at issue is one of the 
ones that Congress explicitly intended to have the Administrative 
Simplification standards and implementation specifications apply to, by 
including them in the definition of ``health plan'' in section 1171, we 
think that there is evidence that the Administrative Simplification 
standards and implementation specifications should prevail over 
contrary exercises of discretion under those programs. That is, to the 
extent that a routine use is truly discretionary to an agency which is 
also a covered entity under section 1172(a), the agency would not have 
discretion to ignore the Administrative Simplification regulations. It 
is possible, however, that in some cases there might be underlying 
federal statutes that call for disclosure of certain types of 
information, and routine uses could be promulgated as the only way to 
implement those statutes and still comply with the Privacy Act. If this 
were to happen or be the case, the routine use should prevail.
    b. The Substance Abuse Confidentiality regulations. Regulations 
that are codified at 42 CFR part 2 establish confidentiality 
requirements for the patient records of substance abuse ``programs'' 
that are ``federally assisted.'' Substance abuse programs are 
specialized programs or personnel that provide alcohol and drug abuse 
treatment, diagnosis, or referral for treatment. 42 CFR 2.11. The term 
``federally assisted'' is broadly defined, and includes federal tax 
exempt status and Medicare certification, among other criteria. 42 CFR 
2.12(b). Such programs may not disclose patient identifying information 
without the written consent of the patient, unless the information is 
needed to respond to a medical emergency, or such information is 
disclosed for purposes of research, audit, or evaluation. Disclosures 
may not be made in response to a subpoena; rather, a court order is 
required in order for a disclosure of covered records to be lawfully 
made. Limited disclosures may also be made by such programs to State or 
local officials under a State law requiring reporting of incidents of 
suspected child abuse and neglect and

[[Page 60001]]

to law enforcement officials regarding a patient's crime on program 
premises or against program personnel or a threat to commit such a 
crime. 42 CFR 2.12. Unlike the rules proposed below, the 
confidentiality protections continue indefinitely after death, although 
part 2 would permit disclosure of identifying information relating to 
the cause of death under laws relating to the collection of vital 
statistics or permitting inquiry into cause of death.
    It seems likely that most, if not all, programs covered by the part 
2 regulations will also be covered, as health care providers, by the 
rules proposed below. As can be seen from the above summary, the part 2 
regulations would not permit many disclosures that would be permitted 
under proposed Sec. 164.510 below, such as many disclosures for law 
enforcement, directory information, governmental health data systems, 
and judicial and other purposes. In addition, the general permissive 
disclosure for treatment or payment purposes at proposed Sec. 164.506 
below would be inconsistent with the more restrictive requirements at 
part 2. In such situations, providers (or others) subject to both sets 
of requirements could not make disclosures prohibited by part 2, even 
if the same disclosures would be permitted under the rules proposed 
below.
    There are also a number of requirements of the part 2 regulations 
that parallel the requirements proposed below. For example, the minimum 
necessary rule, where applicable, would parallel a similar requirement 
at 42 CFR 2.13(a). Similarly, the notice requirements of part 2, at 42 
CFR 2.22 parallel the notice requirements proposed below, although the 
notice required below would be more detailed and cover more issues. The 
preemptive effect on State law should be the same under both part 2 and 
section 264(c)(2). The requirements for disclosures for research 
proposed below are likewise similar to those in part 2. In such cases, 
health care providers would have to comply with the more extensive or 
detailed requirements, but there should be no direct conflict.
    Many other provisions of the proposed rules, however, simply have 
no counterpart in part 2. For example, the part 2 regulations do not 
require programs to maintain an accounting of uses and disclosures, nor 
do they provide for a right to request amendment or correction of 
patient information. Similarly, the part 2 regulations contain no 
prohibition on conditioning treatment or payment on provision of an 
individual authorization for disclosure. In such situations, health 
care providers would be bound by both sets of requirements.
    c. ERISA. ERISA was enacted in 1974 to regulate pension and welfare 
employee benefit plans that are established by private sector 
employers, unions, or both, to provide benefits to their workers and 
dependents. An employee welfare benefit plan includes plans that 
provide ``through the purchase of insurance or otherwise * * * medical, 
surgical, or hospital care or benefits, or benefits in the event of 
sickness, accident, disability, (or) death.'' 29 U.S.C. 1002(1). In 
1996, Public Law 104-191 amended ERISA to require portability, 
nondiscrimination, and renewability of health benefits provided by 
group health plans and group health insurance issuers. Numerous, 
although not all, ERISA plans are covered under the rules proposed 
below as ``health plans.''
    As noted above, section 514(a) of ERISA, 29 U.S.C. 1144(a), 
preempts all State laws that ``relate to'' any employee benefit plan. 
However, section 514(b) of ERISA, 29 U.S.C. 1144(b)(2)(A), expressly 
saves from preemption State laws which regulate insurance. Section of 
ERISA, 29 U.S.C. 1144(b)(2)(B), provides that an ERISA plan is deemed 
not to be an insurer for the purpose of regulating the plan under the 
State insurance laws. Thus, under the deemer clause, States may not 
treat ERISA plans as insurers subject to direct regulation by State 
law. Finally, section 514(d) of ERISA, 29 U.S.C. 1144(d), provides that 
ERISA does not ``alter, amend, modify, invalidate, impair, or supersede 
any law of the United States.''
    We considered whether the preemption provision of section 264(c)(2) 
of Public Law 104-191, discussed in the preceding section, would give 
effect to State laws that would otherwise be preempted by section 
514(a) of ERISA. Our reading of the statutes together is that the 
effect of section 264(c)(2) is simply to leave in place State privacy 
protections that would otherwise apply and which are more stringent 
than the federal privacy protections. In the case of ERISA plans, 
however, if those laws are preempted by section 514(a), they would not 
otherwise apply. We do not think that it is the intent of section 
264(c)(2) to give an effect to State law that it would not otherwise 
have in the absence of section 264(c)(2). Thus, we would not view the 
preemption provisions below as applying to State laws otherwise 
preempted by section 514(a) of ERISA.
    Many plans covered by the rules proposed below are also subject to 
ERISA requirements. To date our discussions and consultations have not 
uncovered any particular ERISA requirements that would conflict with 
the rules proposed below. However, we invite comment, particularly in 
the form of specific identification of statutory or regulatory 
provisions, of requirements under ERISA that would appear to conflict 
with provisions of the rules proposed below.
    d. Other federally funded health programs. There are a number of 
authorities under the Public Health Service Act and other legislation 
that contain explicit confidentiality requirements either in the 
enabling legislation or in the implementing regulations. Many of these 
are so general that there would appear to be no problem of 
inconsistency, in that nothing in the legislation or regulations would 
appear to restrict the assisted provider's discretion to comply with 
the requirements proposed below. There are, however, several 
authorities under which either the requirements of the enabling 
legislation or of the program regulations would impose requirements 
that would differ from the rules proposed below. We have identified 
several as presenting potential issues in this regard. First, 
regulations applicable to the substance abuse block grant program 
funded under section 1943(b) of the Public Health Service Act require 
compliance with 42 CFR part 2, and thus raise the issues identified in 
section 2 above. Second, there are a number of federal programs which, 
either by statute or by regulation, restrict the disclosure of patient 
information to, with minor exceptions, disclosures ``required by law.'' 
See, for example, the program of projects for prevention and control of 
sexually transmitted diseases funded under section 318(e)(5) of the 
Public Health Service Act (42 CFR 51b.404); the regulations 
implementing the community health center program funded under section 
330 of the Public Health Service Act (42 CFR 51c.110); the regulations 
implementing the program of grants for family planning services under 
title X of the Public Health Service Act (42 CFR 59.15); the 
regulations implementing the program of grants for black lung clinics 
funded under 30 U.S.C. 437(a) (42 CFR 55a.104); the regulations 
implementing the program of maternal and child health projects funded 
under section 501 of the Act (42 CFR 51a.6); the regulations 
implementing the program of medical examinations of coal miners (42 CFR 
37.80(a)). These legal requirements would restrict the grantees or 
other entities under the programs

[[Page 60002]]

involved from making many of the disclosures that proposed Sec. 164.510 
would permit. In some cases, permissive disclosures for treatment, 
payment or health care operations would also be limited. Since proposed 
Sec. 164.510 is merely permissive, there would not be a conflict 
between the program requirements, as it would be possible to comply 
with both. However, it should be recognized that entities subject to 
both sets of requirements would not have the total range of discretion 
that the rules proposed below would suggest.

J. Compliance and Enforcement  (Sec. 164.522)

1. Compliance
[Please label written comments about this section with the subject: 
``Compliance.'']
    The rules proposed below at Sec. 164.522 would establish several 
requirements designed to enable the Secretary to monitor and seek to 
ensure compliance with the provisions of this subpart. The general 
philosophy of this section is to provide a cooperative approach to 
obtaining compliance, including use of technical assistance and 
informal means to resolve disputes. However, in recognition of the fact 
that it would not always be possible to achieve compliance through 
cooperation, the section also would provide the Secretary with tools 
for carrying out her statutory mandate to achieve compliance.
    a. Principles for achieving compliance. Proposed Sec. 164.522(a) 
would establish the principle that the Secretary will seek the 
cooperation of covered entities in obtaining compliance. Section 
164.522(a)(2) provides that the Secretary could provide technical 
assistance to covered entities to help them come into compliance with 
this subpart. It is clearly in the interests of both the covered 
entities and the individuals they serve to minimize the costs of 
compliance with the privacy standards. To the extent that the 
Department could facilitate this by providing technical assistance, it 
would endeavor to do so.
    b. Individual complaints and compliance reviews. We are proposing 
in Sec. 164.522(b) that individuals have the right to file a complaint 
with the Secretary if they believe that a covered plan or provider has 
failed to comply with the requirements of this subpart. Because 
individuals would have received notice, pursuant to proposed 
Sec. 164.512, of the uses and disclosures that the entity could make 
and of the entity's privacy practices, they would have a basis for 
making a realistic judgment as to when a particular action or omission 
would be improper. The notice would also inform individuals how they 
could find out how to file such complaints. We thus consider the 
proposed complaint right to be one that could realistically be 
exercised by individuals, given the regulatory structure proposed.
    We are concerned about the burden that handling the potential 
volume of such complaints would create for this Department, but we 
recognize that such a complaint mechanism would provide helpful 
information about the privacy practices of covered plans or providers 
and could serve to identify particularly troublesome compliance 
problems on an early basis.
    The procedures proposed in this section are modeled on those used 
by the Department's Office for Civil Rights, although they would be 
adapted to reflect the requirements of this subpart. We would require 
complainants to identify the entities and describe the acts or 
omissions alleged to be out of compliance and would require individuals 
to file such complaints within 180 days of those acts or omissions. We 
have tried to keep the requirements for filing complaints as minimal as 
possible, to facilitate use of this right. The Secretary would also 
attempt to keep the identity of complainants confidential, if possible. 
However, we recognize that it could be necessary to disclose the 
identity of complainants in order to investigate the substance of their 
complaints, and the rules proposed below would permit such disclosures.
    The Secretary could promulgate alternative procedures for 
complaints based on agency-specific concerns. For example, to protect 
classified information, we may promulgate rules that would allow an 
intelligence community agency to create a separate body within that 
agency to receive complaints.
    The Secretary would try to resolve complaints on an informal basis 
wherever possible. Where a resolution could not be reached, the 
Secretary could make a formal finding of noncompliance. However, 
resolution could occur, and an agreement reached with the covered 
entity, even after a finding that a violation occurred. The Secretary 
could use the finding as a basis to initiate an action under section 
1176 of the Act or to refer the matter to the Department of Justice for 
prosecution under section 1177 of the Act. It should be recognized that 
the decision to initiate an action under either section of the law 
would be a discretionary one, and proposed Sec. 164.522 would not 
require such prosecutorial action to be taken. Proposed 
Sec. 164.522(e)(1)(ii) would, however, permit the use of findings made 
in connection with a complaint, group of complaints, or compliance 
review to be acted on in this fashion.
    The rules proposed below also would provide that the Secretary 
would inform both the covered plan or provider and the complainant, 
whenever a decision was made on a complaint.
    We are proposing in Sec. 164.522(c) that the Secretary could 
conduct compliance reviews to determine whether covered entities are in 
compliance. A compliance review could be based on information 
indicating a possible violation of this subpart even though a formal 
complaint has not been filed. As is the case with a complaint 
investigation, a compliance review may examine the policies, practices 
or procedures of a covered entity and may result in voluntary 
compliance or in a violation or no violation finding.
    c. Responsibilities of covered entities. Proposed Sec. 164.522(d) 
establishes certain obligations for covered entities that would be 
necessary to enable the Secretary to carry out her statutory role to 
determine their compliance with these requirements. Proposed 
Sec. 164.522(d)(1) would require covered entities to maintain records 
as directed. Proposed Sec. 164.522(d)(2) would require them to 
participate as required in compliance reviews. Proposed 
Sec. 164.522(d)(3) would affirmatively establish their obligation to 
provide information to the Secretary upon demand. Finally, paragraph 
(d)(4) would prohibit intimidating, discriminatory or other retaliatory 
actions by a covered entity against a person who files a complaint with 
the Secretary; testifies, assists or participates in any manner in an 
investigation, compliance review, proceeding, or hearing under this 
Act; or opposes any act or practice made unlawful by this subpart. This 
language is modeled after the Americans with Disabilities Act and title 
VII of the Civil Rights Act of 1964. Prohibitions against retaliation 
are also common throughout Department programs. The experience of the 
federal government in enforcing civil rights and other laws has been 
that voluntary compliance with and effective enforcement of such laws 
depend in large part on the initiative of persons opposed to illegal 
practices. If retaliation for opposing practices that a person 
reasonably believes are unlawful were permitted to go unremedied, it 
would have a chilling effect upon the willingness of persons to speak 
out and

[[Page 60003]]

to participate in administrative processes under this subpart.
    Opposition to practices of covered entities refers to a person's 
communication of his or her good faith belief that a covered entity's 
activities violate this subpart. Opposition includes, but is not 
limited to, filing a complaint with the covered entity under 
Sec. 164.518(d) and making a disclosure as a whistleblower under 
Sec. 164.518(c)(4). This provision would not protect a person whose 
manner of opposition is so unreasonable that it interferes with the 
covered entities' legitimate activities. This provision would cover 
such situations such as where an employee of a physician is fired in 
retaliation for confronting the doctor regarding her practice of 
illegally disclosing individuals' records or where a health plan drops 
coverage after an enrollee argues to the plan that he has a right to 
access to his records.
    We recognize that under these requirements the covered entity would 
be disclosing protected health information to representatives of the 
Department when such information is relevant to a compliance 
investigation or assessment. We recognize that this would create a 
mandatory disclosure of protected health information and that such a 
requirement carries significant privacy concerns. Those concerns must, 
however, be weighed against the need to obtain compliance by entities 
with the privacy standards, and to protect against future improper uses 
and disclosures of protected health information. The proposed rule 
accordingly attempts to strike a balance between these interests, 
providing that the Department would not disclose such information, 
except as may be necessary to enable the Secretary to ascertain 
compliance with this subpart or in enforcement proceedings or as 
otherwise required by law.
2. Enforcement
    [Please label written comments about this section with the subject: 
``Enforcement.'']
    Congress established a two-pronged approach to enforcement of all 
of the requirements established under part C of title XI of the Act. 
First, section 1176 grants the Secretary the authority to impose civil 
monetary penalties against those covered entities which fail to comply 
with the requirements established under part C. These penalties are to 
be imposed according to the procedures established for imposition of 
civil monetary penalties in section 1128A of the Act. Second, section 
1177 establishes criminal penalties for certain wrongful disclosures of 
individually identifiable health information.
    The selection of the civil monetary penalty process at section 
1128A of the Act as the enforcement mechanism for the Administrative 
Simplification standards and requirements indicates the type of process 
Congress believes is appropriate for civil enforcement of those 
standards and requirements. The Secretary's Recommendations call for a 
privacy right of action to permit individuals to enforce their privacy 
rights. However, the HIPAA does not provide a private right of action, 
so the Secretary lacks the authority to provide for such a remedy. 
Accordingly, we would provide that individuals could file complaints 
with the Secretary and the Secretary could then, when appropriate, 
investigate. The Secretary may also conduct compliance reviews. See 
proposed Sec. 164.522(b) and (c).
    Under section 1177(a), the offense of ``wrongful disclosure'' is a 
disclosure that violates the standards or requirements established 
under part C. These would include any disclosures not otherwise 
permitted under the privacy standards or the parallel security 
standards.
    As we noted in the Notices of Proposed Rulemaking for the other 
Administrative Simplification regulations, we will propose regulations 
in the future to establish these procedures. Because such procedures 
will not constitute ``standards'' within the meaning of part C, they 
would not be subject to the delay in effective date provisions that 
apply to the various Administrative Simplification regulations.

III. Small Business Assistance

    This rule is significant because it establishes for the first time 
a federally required regime of information practices in the medical 
industry. The length, and at times complexity, of the preamble 
discussion may impress small businesses as creating overly burdensome 
and costly requirements. We believe, however, that several features of 
the rule, combined with initiatives by the Department and professional 
associations, will make the rule easily administrable for the vast 
majority of small businesses.
    First, a significant portion of the rule addresses the topic of 
signed individual authorization for disclosure of health information--
the information that the authorization would include and when such an 
authorization would be required. Importantly, no patient written 
authorization would be required when information is disclosed for 
purposes of treatment and payment and health care operations, or when 
disclosure is mandated by law. In other words, doctors who disclose 
patient health information only to other doctors for treatment 
purposes, or to insurance companies to process payment, or for 
operational purposes can continue to do so without any change in 
current practices under this proposal. Only those covered entities who 
disclose health information to marketers, reporters, private 
investigators, researchers, and others for purposes unrelated to 
treatment, payment, and health care operations are required to get the 
written consent of the patient in accordance with this rule.
    Second, the Department plans to engage in outreach and education 
programs to ease the implementation of this rule for small businesses. 
Already, this rule provides model forms for getting patient 
authorization and provides an example of a notice of information 
practices (another requirement in the rule, described further below). 
We also expect that professional associations will develop forms 
tailored to specific groups' needs. The Department pledges to work with 
professional associations to provide the greatest possible guidance to 
small businesses covered by this rule.
    Third, in implementing this rule, we will apply the principle of 
``scalability,'' so that a particular entity's characteristics--
including its size, type of business, and information practices--would 
be relevant to how that entity adopts procedures to comply with this 
rule. Take one example--this rule requires the designation of a 
``privacy official.'' Large health plans dealing with a vast range of 
information flows may well consider hiring a full time person to 
oversee compliance with the rule, to assist in planning systems 
development, and to draft contracts with business partners, among other 
tasks. A small doctor's office, on the other hand, may instead 
determine that an existing office manager could oversee the office's 
privacy policies. There would be no expectation that this small 
doctor's office hire a full-time privacy official. In each of these 
examples, the covered entity would be complying with the rule's 
requirement that a privacy official be designated--but the ways that 
each complies would reflect the different circumstances of each 
entity's practice.
    It is important for small businesses to understand what their 
obligations would be and to implement the necessary procedures to 
comply, with the help of Department's model forms and other resources 
from professional associations. While most covered

[[Page 60004]]

entities would need to be in compliance within two years of the final 
publication of the rule, small businesses would have an extra year to 
come into compliance.
    Here, we set out the principal (although not exclusive) 
requirements for small businesses:
1. Notice to Individuals of Information Practices  (Sec. 164.512)
    Each covered entity would have to develop a notice of information 
practices, which, as described above, could be modeled on the form 
attached to this proposal or on model forms that we expect professional 
associations to develop. The notice must accurately reflect the 
entity's practices and include the elements listed in Sec. 164.512.
    Covered health care providers would have to provide the notice to 
individuals at first service after the effective date of the rule. 
Providers are also required to post a current copy of the notice in a 
clear and prominent location for individuals to see. Covered health 
plans would have to provide the notice to any individual covered by the 
plan when this rule becomes effective, at enrollment, and after any 
material change to the notice or at least once every three years.
2. Access of Individuals to Protected Health Information  
(Sec. 164.514)
    Covered plans and providers would be required to allow individuals 
to inspect and copy their protected health information. These plans or 
providers could charge individuals a reasonable cost-based fee for 
copying.
3. Accounting for Uses and Disclosures  (Sec. 164.515)
    Covered plans and providers would have to be able to provide an 
accounting for uses and disclosures of protected health information for 
purposes other than treatment, payment, or health care operations. We 
expect that this burden will be very low for most small businesses, 
given the nature of most disclosures by such businesses.
4. Amendment and Correction  (Sec. 164.516)
    Covered plans and providers would be required to allow individuals 
to request amendments or corrections to their protected health 
information.
5. Designated Privacy Official  (Sec. 164.518(a))
    Each covered entity would designate a privacy official. As 
described above, in a small providers office, the office manager may be 
the official in charge of making sure that the office is implementing 
its privacy policies and procedures and taking complaints.
6. Training  (Sec. 164.518(b))
    All members of covered entities' workforces who have contact with 
protected health information would be required to have some sort of 
privacy training about the entity's policies and procedures and to sign 
a certificate indicating that they had such training. For a small 
entity, this could simply mean the privacy official briefly discussing 
how they handle privacy concerns and going over the entity's notice of 
information practices.
7. Safeguards  (Sec. 164.518(c))
    A covered entity would have to establish administrative, technical, 
and physical safeguards to protect the privacy of protected health 
information from unauthorized access or use. For a small provider, this 
may mean having the ability to securely lock up any record that are not 
being used and ensuring that records are not kept in an area where 
anyone who is not authorized could view them.
8. Complaints  (Sec. 164.518(d))
    Every covered entity would be required to have policies and 
procedures in place that allow individuals to file complaints about 
possible privacy violations. For a small entity, this could mean simply 
that they keep a specific file for complaints.
9. Sanctions  (Sec. 164.518(e))
    Covered entities would be required to develop and apply sanctions 
when a member of a covered entity's work force or business partner 
fails to comply with the entity's policies and procedures related to 
this rule. For a small businesses, these could range from requiring a 
re-training on privacy, to placing a notation of the violation in an 
employee's record, to dismissal or ending a contract with a business 
partner.
10. Documentation of Policies and Procedures  (Secs. 164.520)
    Covered entities would be required to document policies and 
procedures for use and disclosure of protected health information 
relating to this regulation, including elements listed in Sec. 164.520, 
and would need to maintain one copy of each version of its notice of 
information practices, and authorization forms. See Sec. 164.520(f) for 
a full list of recordkeeping requirements.
11. Minimum Necessary  (Sec. 164.506(b))
    When using or disclosing protected health information for 
treatment, payment, healthcare operations, and other purposes, an 
entity would be required to disclose only the amount of protected 
health information necessary to accomplish the intended purpose of the 
use or disclosure.
12. Business Partners  (Sec. 164.506(e))
    For those small businesses that hire ``business partners'' to 
assist them in carrying out their operations, this rule would require 
that they take steps, including having certain terms in a contract, to 
ensure that their business partners are also protecting the privacy of 
individually identifiable health information. We expect that model 
contracts will be developed by potential business partners and others 
that can be used to fulfill the requirements of this section.
13. Special Disclosures That Do Not Require Authorization--Public 
Health, Research, etc.  (Sec. 164.510)
    This proposed rule would also permit disclosure of patients' health 
information in special cases and under certain conditions. These 
disclosures would be optional under this proposed rule but may be 
mandatory under other laws. The primary examples of such permissible 
disclosures are for: public health purposes, for health oversight 
purposes, for judicial and administrative proceedings, to coroners and 
medical examiners, to law enforcement agencies, to next-of-kin, to 
governmental health data systems, for research purposes, other 
disclosures required by law, among others. Each of these disclosures 
and uses would be subject to specific conditions, described in the 
proposed rule.
14. Verification  (Sec. 164.518(c)(2))
    Entities would be required to have reasonable procedures to verify 
the identity or authority, as applicable, of persons requesting the 
disclosure of protected health information if the person making the 
request is not already known to the entity. In most cases, the covered 
entity could simply ask for a form of identification like a drivers 
license.

IV. Preliminary Regulatory Impact Analysis

    Section 804(2) of title 5, United States Code (as added by section 
251 of Public Law 104-121), specifies that a ``major rule'' is any rule 
that the Office of Management and Budget finds is likely to result in--
     An annual effect on the economy of $100 million or more;
     A major increase in costs or prices for consumers, 
individual industries,

[[Page 60005]]

Federal, State, or local government agencies, or geographic regions; or
     Significant adverse effects in competition, employment, 
investment productivity, innovation, or on the ability of Unites States 
based enterprises to compete with foreign-based enterprises in domestic 
and export markets.
    We estimate that the impact of this final rule will be over $1 
billion in the first year of implementation. Therefore, this rule is a 
major rule as defined in Title 5, United States Code, section 804(2).
    DHHS has examined the impacts of this proposed rule under Executive 
Order 12866. Executive Order 12866 directs agencies to assess all costs 
and benefits of available regulatory alternatives and, when regulation 
is necessary, to select regulatory approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety effects; distributive impacts; and equity). According to 
Executive Order 12866, a regulatory action is ``significant'' if it 
meets any one of a number of specified conditions, including having an 
annual effect on the economy of $100 million or adversely affecting in 
a material way a sector of the economy, competition, or jobs or if it 
raises novel legal or policy issues. DHHS finds that this proposed rule 
is a significant regulatory action as defined by Executive Order 12866. 
Also in accordance with the provisions of Executive Order 12866, this 
proposed rule was reviewed by the Office of Management and Budget.
    When this proposed rule becomes a final rule, in accordance with 
the Small Business Regulatory Enforcement and Fairness Act (Pub. L. 
104-121), the Administrator of the Office of Information and Regulatory 
Affairs of the Office of Management and Budget (the Administrator) has 
determined that this proposed rule would be a major rule for the 
purpose of congressional review. A major rule for this purpose is 
defined in 5 U.S.C. 804(2) as one that the Administrator has determined 
has resulted or is likely to result in an annual effect on the economy 
of $100 million or more; a major increase in costs or prices for 
consumers, individual industries, federal State, or local government 
agencies, or geographic regions; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises in domestic or export markets.
    The Health Insurance Portability and Accountability Act of 1996 
(HIPAA) projects a significant increase in the number of medical 
transactions that will be conducted or transmitted electronically. 
HIPAA notes the privacy needs that result when individually 
identifiable health information can be transmitted quickly through 
electronic information systems. While there is a compelling need to 
protect the privacy of health information in today's health care 
system, the expected growth of electronic systems to aide medical 
diagnostics, claims processing and research makes it even more critical 
to improve privacy protections.
    A fundamental assumption of this regulation is that the greatest 
benefits of improved privacy protection will be realized in the future 
as patients gain increasing trust in health care practitioners' ability 
to maintain the confidentiality of their health information. 
Furthermore, our analysis rests on the principle that health 
information privacy is a right, and as such, cannot be valued solely by 
market costs. Because it is difficult to measure future benefits based 
on present data, our estimates of the costs and benefits of this 
regulation are based on the current business environment and do not 
include projections beyond five years. As a result, we cannot 
accurately account for all of the regulation's future costs and 
benefits, but the Department is confident that future benefits will be 
higher than those stated in this analysis.
    In order to achieve a reasonable level of privacy protection, we 
have three objectives for the proposed rule: (1) To establish baseline 
standards for health care privacy protection, (2) to establish 
protection for all health information maintained or transmitted by 
covered entities, and (3) to protect the privacy of health information 
that is maintained in electronic form, as well as health information 
generated by electronic systems.
    Establishing minimum standards for health care privacy protection 
is an attempt to create a baseline level of privacy protection for 
patients across States. The Health Privacy Project's report, The State 
of Health Privacy: An Uneven Terrain 6 makes it clear that 
under the current system of state laws, privacy protection is extremely 
variable. Our statutory authority under HIPAA allows us to preempt 
state laws when state law provides less stringent privacy protection 
than the regulation. Only in cases where state law does not protect the 
patient's health information as stringently as in this proposed rule, 
or when state law is more restrictive of a patient's right to access 
their own health care information, will our rule preempt state law. We 
discuss preemption in greater detail in other parts of the preamble 
(see the effects of the rule on state laws, section 2 below).
---------------------------------------------------------------------------

    \6\ Janlori Goldman, Institute for Health Care Research and 
Policy, Georgetown University: www.healthprivacy.org/resources.
---------------------------------------------------------------------------

    Our second objective is to establish a uniform base of protection 
for all health information maintained or transmitted by covered 
entities. As discussed in the preamble, HIPAA restricts the type of 
entities covered by the proposed rule to three broad categories: health 
care providers, health care clearinghouses, and health plans. However, 
there are similar public and private entities that we do not have the 
authority to regulate under HIPAA. For example, life insurance 
companies are not covered by this proposed rule but have access to a 
large amount of protected health information. State government agencies 
not directly linked to public health functions or health oversight may 
also have access to protected health information. Examples of this type 
of agency include the motor vehicle administration, which frequently 
maintains individual health information, and welfare agencies that 
routinely hold health information about their clients.
    Our third objective is to protect the privacy of health information 
that is maintained in electronic form, as well as health information 
generated by electronic systems. Health information is currently stored 
and transmitted in multiple forms, including in electronic, paper, and 
oral formats. In order to provide consistent protection to information 
that has been electronically transmitted or maintained, we propose that 
this rule cover all personal, protected health information that has 
ever been maintained or transmitted electronically. This type of 
information includes output such as computer printouts, X-rays, 
magnetic tape, and other information that was originally maintained or 
transmitted electronically. For example, laboratory tests are often 
computer generated, printed out on paper, and then stored in a 
patient's record. Because such lab results were originally maintained 
electronically, the post-electronic (i.e. printed) output of those lab 
results would also be covered under the proposed rule.
    It is important to note that the use of electronic systems to 
maintain and transmit health information is growing among health care 
providers, and health plans. Faulkner and Gray report that provider use 
of electronically processed

[[Page 60006]]

health transactions grew from 47 percent to 62 percent between 1994 and 
1998. Payer use of electronic transactions grew 17 percent between 1996 
and 1997. Once all of the HIPAA administrative simplification standards 
are implemented, we expect the number of electronic transactions 
processed by payers and providers to grow.
    The variation in business practice regarding use of paper records 
versus electronic media for storing and transmitting health information 
is captured by comparing the percentage of providers that submit paper 
claims with those that submit electronic claims. Faulkner & Gray's 
Health Data Directory 1 shows that only 40 percent of non-
Medicare physician claims and 16 percent of dental claims were 
submitted electronically in 1998. In contrast, 88 percent of all 
pharmacy claims were submitted electronically.
---------------------------------------------------------------------------

    \1\  Health Data Directory, Faulkner & Gray; 1999 Edition, pp 
22-23.
---------------------------------------------------------------------------

    We believe that most physicians either have, or will have in the 
near future, the capacity to submit claims electronically. Faulkner and 
Gray reported that 81 percent of physicians with Medicare patients 
submitted their Medicare claims electronically. The difference in the 
percent of electronic clams submitted to Medicare suggests that the 
physicians' decisions to submit claims electronically may be heavily 
influenced by the administrative requirements of the health plan 
receiving the claim. Since HIPAA requires all health plans to accept 
electronic transactions and, in order to compete in the technologically 
driven health care market, more health plans may require electronic 
claims submissions, physicians will conduct many more electronic 
transactions in the near future. Therefore, it is extremely important 
that adequate privacy protections are implemented now.

A. Relationship of This Analysis to Analyses in Other HIPAA Regulations

    Historically, Congress has recognized that privacy standards must 
accompany the electronic data interchange standards and that the 
increased ease of transmitting and sharing individually identifiable 
health information must be accompanied by an increase in the privacy 
and confidentiality. In fact, the majority of the bulk of the first 
Administrative Simplification section that was debated on the floor of 
the Senate in 1994 (as part of the Health Security Act) was made up of 
privacy provisions. Although the requirement for the issuance of 
concomitant privacy standards remained a part of the bill passed by the 
House of Representatives, the requirement for privacy standards was 
removed in conference. This section was moved from the standard-setting 
authority of Title XI (section 1173 of the Act) and placed in a 
separate section of HIPAA, section 264. Subsection (b) of section 264 
required the Secretary of HHS to develop and submit to the Congress 
recommendations for:
    (1) The rights that an individual who is a subject of individually 
identifiable health information should have.
    (2) The procedures that should be established for the exercise of 
such rights.
    (3) The uses and disclosures of such information that should be 
authorized or required.
    The Secretary's Recommendations were submitted to the Congress on 
September 11, 1997, and are summarized below. Section 264(c)(1) 
provides that:

    If legislation governing standards with respect to the privacy 
of individually identifiable health information transmitted in 
connection with the transactions described in section 1173(a) of the 
Social Security Act (as added by section 262) is not enacted by 
(August 21, 1999), the Secretary of Health and Human Services shall 
promulgate final regulations containing such standards not later 
than (February 21, 2000). Such regulations shall address at least 
the subjects described in subsection (b).

    As the Congress did not enact legislation governing standards with 
respect to the privacy of individually identifiable health information 
prior to August 21, 1999, HHS has now, in accordance with this 
statutory mandate, developed proposed rules setting forth standards to 
protect the privacy of such information.
    These privacy standards have been, and continue to be, an integral 
part of the suite of Administrative Simplification standards intended 
to simplify and improve the efficiency of the administration of our 
health care system.
    The proposed rule should be considered along with all of the 
administrative simplification standards required by HIPAA. We assessed 
several strategies for determining the impact of this proposed rule. We 
considered whether it would be accurate to view the impact as a subset 
of the overall HIPAA standards or whether this privacy component should 
be viewed as an addition to the earlier impact analyses related to 
HIPAA. We decided that while this proposed rule is considered one of 
the HIPAA standards, any related costs or benefits should be viewed as 
an addition to earlier analyses. The original HIPAA analyses did not 
incorporate the expected costs and benefits of privacy regulation 
because, at the time of the original analyses, we did not know whether 
Congress would enact legislation or whether privacy would need to be 
addressed by regulation. Therefore, much of our cost analysis is based 
on the expected incremental costs above those related to other HIPAA 
regulations.

B. Summary of Costs and Benefits.

    The Department has estimated the costs and benefits of the proposed 
rule based on several caveats. In general, it is difficult to estimate 
the costs and benefits of improved privacy protection. The ability to 
measure costs of the proposed regulation is limited because there is 
very little data currently available on the cost of privacy protection. 
The Department has not been able to estimate costs for a number of 
requirements of the proposed regulation that we know will impose some 
cost to covered entities. For those elements for which there are 
estimated costs, data and information limitations limit the precision 
of the Department's estimates; for those reasons we have provided an 
overall range of costs in addition to point estimates, and welcome 
further information from the public as part of the comment process. 
Furthermore, the number of new privacy requirements that the regulation 
will introduce to the health care industry exacerbates difficulties 
estimating the benefits of privacy. Benefits are difficult to measure 
because we conceive of privacy primarily as a right and secondarily as 
a commodity. As discussed below, the significant benefits of the 
proposed regulation to individuals and society can be demonstrated by 
illustrating the serious privacy concerns raised by mental health, 
substance abuse, cancer screening, and HIV/AIDS patients and the 
benefits that may be derived from greater privacy.
    The estimated cost of compliance with the proposed rule would be at 
least $3.8 billion over five years. The cost includes estimates for the 
majority of the requirements of the proposed regulation, but not all. 
These estimates include costs to federal, State, and local governments. 
Federal, and State and local costs are therefore a subset of total 
costs. Based on a plausible range of costs for the key components of 
the analysis, the cost of the regulation would likely be in the range 
$1.8 to $6.3 billion over five years (not including those elements of 
the regulation for

[[Page 60007]]

which we could not make any cost estimates).
    The compliance costs are in addition to Administrative 
Simplification estimates. The cost of complying with the privacy 
regulation represents about 0.09 percent of projected national health 
expenditures during the first year following the regulation's 
enactment. The five-year cost of the proposed regulation also 
represents 1.0 percent of the increase in health care costs that will 
occur during the same five-year period.8
---------------------------------------------------------------------------

    \8\ Health Care Finance Administration, Office of the Actuary, 
1997.
---------------------------------------------------------------------------

    The largest cost item is the amending and correcting of records, 
which would represent over one-half of total costs. Provider and plan 
notices, which we estimate would cost $439 million, is the second 
largest cost, and inspection and copying of records is estimated to be 
$405 million. The one-time costs for providers to develop policies and 
procedures represent somewhat less than 10 percent of the total cost, 
or $333 million. Plans would bear a substantially smaller cost--
approximately $62 million. Other systems changes would cost about $90 
million over the period. The cost of administering written 
authorizations would total approximately $271 million over five years.
    The cost estimates include private-and public-sector costs. Many of 
the public-sector cost elements will be the same as those in the 
private market. However, privacy notices are likely to represent a 
smaller fraction of total public-sector costs, while systems compliance 
costs in the public sector may be higher than in the private sector due 
to oversight and administrative requirements.
    The costs presented in this document are the Department's best 
estimates of the cost of implementing the proposed regulation based on 
available information and data. Because of inadequate data, we have not 
made cost estimates for the following components of the regulation: The 
principle of minimum necessary disclosure; the requirement that 
entities monitor business partners with whom they share PHI; creation 
of de-identified information; internal complaint processes; sanctions; 
compliance and enforcement; the designation of a privacy official and 
creation of a privacy board; and additional requirements on research/
optional disclosures that will be imposed by the regulation. The cost 
of these provisions may be significant in some cases, but it would be 
inaccurate to project costs for these requirements given the fact that 
several of these concepts are new to the industry, and there is little 
direct evidence on costs. We solicit comment regarding costs of the 
regulation that we have not quantified.
    The privacy protections established by this regulation will provide 
major social benefits. Establishing privacy protection as a fundamental 
right is an important goal and will have significant, non-quantifiable 
social benefits. A well-designed privacy standard can be expected to 
build confidence among the public about the confidentiality of their 
health information. Increased confidence in the privacy of an 
individual's health information can be expected to increase the 
likelihood that many people will seek treatment for particular classes 
of disease, particularly mental health conditions, sexually transmitted 
diseases such as HIV/AIDS, and earlier screening for certain cancers. 
The increased utilization of medical services that would result from 
increased confidence in privacy would lead to improved health for the 
individuals involved, reduced costs to society associated with delayed 
treatments, and improved public health attributable to reduced 
transmission of communicable diseases.

                      Table 1.--The Cost of Complying with the Proposed Privacy Regulation
                                                  [In dollars]
----------------------------------------------------------------------------------------------------------------
                                                       Initial or first    Annual cost after   Five year (2000-
                      Provision                        year cost (2000)     the first year        2004) cost
----------------------------------------------------------------------------------------------------------------
Development of Policies and Procedures--Providers           $333,000,000  ..................        $333,000,000
 (totaling 871,294).................................
Development of Policies and Procedures--Plans                 62,000,000  ..................          62,000,000
 (totaling 18,225)..................................
System Changes--All Entities........................          90,000,000  ..................          90,000,000
Notice Development Cost--All Entities...............          20,000,000  ..................          30,000,000
Notice Issuance--Providers..........................          59,730,000          37,152,000         208,340,000
Notice Issuance--Plans..............................          46,200,000          46,200,000         231,000,000
Inspection/Copying..................................          81,000,000          81,000,000         405,000,000
Amendment/Correction................................         407,000,000         407,000,000       2,035,000,000
Written Authorization...............................          54,300,000          54,300,000         271,500,000
Paperwork/Training..................................          22,000,000          22,000,000         110,000,000
Other Costs*........................................               **N/E                 N/E                 N/E
                                                     -----------------------------------------------------------
    Total...........................................      $1,165,230,000        $647,652,000      $3,775,840,000
----------------------------------------------------------------------------------------------------------------
* Other Costs include: minimum necessary disclosure; monitoring business partners with whom entities share PHI;
  creation of de-identified information; internal complaint processes; sanctions; compliance and enforcement;
  the designation of a privacy official and creation of a privacy board; additional requirements on research/
  optional disclosures that will be imposed by the regulation.
**N/E = ``Not estimated''.

    We promote the view that privacy protection is an important 
personal right, and suggest that the greatest of the benefits of the 
proposed regulation are impossible to estimate based on the market 
value of health information alone. However, it is possible to evaluate 
some of the benefits that may accrue to individuals as a result of 
proposed regulation, and these benefits, alone, demonstrate that the 
regulation is warranted.
    These benefits are considered both qualitatively and 
quantitatively. As a framework for the discussion, the cost of the 
provisions in the regulation that have been quantified is $0.46 per 
health care encounter. Although the value of privacy cannot be fully 
calculated, it is worth noting that if individuals would be willing to 
pay more than $0.46 per health care encounter to improve health 
information privacy, the benefits of the

[[Page 60008]]

proposed regulation would outweigh the cost.
    Several qualitative examples illustrate the benefits of the 
proposed regulation. In one case, medical privacy concerns may prevent 
patients from obtaining early testing and screening for certain types 
of cancer. Of types of cancer for which screening is available, 
survival rates might increase to 95 percent diagnosed in the early 
stages 9. For HIV/AIDS patients, new treatments for patients 
who are diagnosed with HIV in the early stages may save $23,700 per 
quality-adjusted year of life saved 10. Later in this 
document, the potential to reduce illness and disability associated 
with sexually transmitted diseases is discussed.
---------------------------------------------------------------------------

    \9\  American Cancer Society. http://www.cancer.org/statistics/
97cff/97facts.html
    \10\  John Hornberger et al, ``Early treatment with highly 
active anti-retroviral therapy (HAART) is cost-effective compared to 
delayed treatment,'' 12th World AIDS conference, 1998.
---------------------------------------------------------------------------

    We recognize that many of the costs and benefits of health 
information privacy are difficult to quantify, but we believe that our 
estimates represent a reasonable range of the economic costs and 
benefits associated with the regulation.

C. Need for the Proposed Action.

    Privacy is a fundamental right. As such, it has to be viewed 
differently than any ordinary economic good. Although the costs and 
benefits of a regulation need to be considered as a means of 
identifying and weighing options, it is important not to lose sight of 
the inherent meaning of privacy: it speaks to our individual and 
collective freedom.
    A right to privacy in personal information has historically found 
expression in American law. All fifty states today recognize in tort 
law a common law or statutory right to privacy. Many states 
specifically provide a remedy for public revelation of private facts. 
Some states, such as California and Tennessee, have a right to privacy 
as a matter of state constitutional law. The multiple historical 
sources for legal rights to privacy are traced in many places, 
including Chapter 13 of Alan Westin's Privacy and Freedom and in Ellen 
Alderman & Caroline Kennedy, The Right to Privacy (1995).
    To take but one example, the Fourth Amendment to the United States 
Constitution guarantees that ``the right of the people to be secure in 
their persons, houses, papers and effects, against unreasonable 
searches and seizures, shall not be violated.'' By referring to the 
need for security of ``persons'' as well as ``papers and effects'' the 
Fourth Amendment suggests enduring values in American law that relate 
to privacy. The need for security of ``persons'' is consistent with 
getting patient consent before performing invasive medical procedures. 
The need for security in ``papers and effects'' underscores the 
importance of protecting information about the person, contained in 
sources such as personal diaries, medical records, or elsewhere. As is 
generally true for the right of privacy in information, the right is 
not absolute. The test instead is what constitutes an ``unreasonable'' 
search of the papers and effects.
    The United States Supreme Court has specifically upheld the 
constitutional protection of personal health information. In Whalen v. 
Roe, 429 U.S. 589 (1977), the Court analyzed a New York statute that 
created a database of persons who obtained drugs for which there was 
both a lawful and unlawful market. The Court, in upholding the statute, 
recognized at least two different kinds of interests within the 
constitutionally protected ``zone of privacy.'' ``One is the individual 
interest in avoiding disclosure of personal matters,'' such as this 
proposed regulation principally addresses. This interest in avoiding 
disclosure, discussed in Whalen in the context of medical information, 
was found to be distinct from a different line of cases concerning 
``the interest in independence in making certain kinds of important 
decisions.'' In the recent case of Jaffee v. Redmond, 116 S.Ct. 1923 
(1996), the Supreme Court held that statements made to a therapist 
during a counseling session were protected against civil discovery 
under the Federal Rules of Evidence. The Court noted that all fifty 
states have adopted some form of the psychotherapist-patient privilege. 
In upholding the federal privilege, the Supreme Court stated that it 
``serves the public interest by facilitating the appropriate treatment 
for individuals suffering the effects of a mental or emotional problem. 
The mental health of our citizenry, no less than its physical health, 
is a public good of transcendent importance.''
    Many writers have urged a philosophical or common-sense right to 
privacy in one's personal information. Examples include Alan Westin, 
Privacy and Freedom (1967) and Janna Malamud Smith, Private Matters: In 
Defense of the Personal Life (1997). These writings emphasize the link 
between privacy and freedom and privacy and the ``personal life,'' or 
the ability to develop one's own personality and self-expression. 
Smith, for instance, states:

    The bottom line is clear. If we continually, gratuitously, 
reveal other people's privacies, we harm them and ourselves, we 
undermine the richness of the personal life, and we fuel a social 
atmosphere of mutual exploitation. Let me put it another way: Little 
in life is as precious as the freedom to say and do things with 
people you love that you would not say or do if someone else were 
present. And few experiences are as fundamental to liberty and 
autonomy as maintaining control over when, how, to whom, and where 
you disclose personal material. Id. at 240-241.

    Individuals' right to privacy in information about themselves is 
not absolute. It does not, for instance, prevent reporting of public 
health information on communicable diseases or stop law enforcement 
from getting information when due process has been observed. But many 
people believe that individuals should have some right to control 
personal and sensitive information about themselves.
    Among different sorts of personal information, health information 
is among the most sensitive. Many people believe that details about 
their physical self should not generally be put on display for 
neighbors, employers, and government officials to see. Informed consent 
laws place limits on the ability of other persons to intrude physically 
on a person's body. Similar concerns apply to intrusions on information 
about the person. Moving beyond these facts of physical treatment, 
there is likely a greater intrusion when the medical records reveal 
details about a person's mental state, such as during treatment for 
mental health. If, in Justice Brandeis' words, the ``right to be let 
alone'' means anything, then it likely applies to having outsiders have 
access to one's intimate thoughts, words, and emotions.
    In addition to these arguments based on the right to privacy in 
personal information, market failures will arise to the extent that 
privacy is less well protected than the parties would have agreed to, 
if they were fully informed and had the ability to monitor and enforce 
contracts. The chief market failures with respect to privacy concern 
information, negotiating, and enforcement costs. The information costs 
arise because of the information asymmetry between the company and the 
patient--the company typically knows far more than the patient about 
how the information will be used by that company. A health care 
provider or plan, for instance, knows many details about how protected 
health information will be generated, combined with other databases, or 
sold to third parties.

[[Page 60009]]

    Patients face at least two layers of cost in learning about how 
their information is used. First, as with many aspects of health care, 
patients face the challenge of trying to understand technical medical 
terminology and practices. It will often be difficult for a patient to 
understand the medical records and the implications of transferring 
various parts of such records to a third party. Second, especially in 
the absence of consistent national rules, patients may face significant 
costs in trying to learn and understand the nature of a company's 
privacy policies.
    The costs of learning about companies' policies are magnified by 
the difficulty patients face in detecting whether companies in fact are 
complying with those policies. Patients might try to adopt strategies 
for monitoring whether companies have complied with their announced 
policies. For instance, if a person received health care from several 
providers that promised not to sell her name to third parties, she 
could report a different middle initial to each provider. She could 
then identify the provider that broke the agreement by noticing the 
middle initials that later appeared on an unsolicited marketing letter. 
These sorts of strategies, however, are both costly (in time and 
effort) and likely to be ineffective. A company using the patient's 
name, for instance, could cross-check her address with her real name, 
and thereby insert the correct middle initial. In addition, modern 
health care often requires protected health information to flow 
legitimately among multiple entities for purposes of treatment, 
payment, health care operations, and other necessary uses. Even if the 
patient could identify the provider whose data ultimately leaked, the 
patient could not easily tell which of those multiple entities had 
impermissibly transferred her information.
    The cost and ineffectiveness of monitoring logically leads to less 
than optimal protection of health information. Consider the incentives 
facing a company that acquires protected health information. That 
company gains the full benefit of using the information, including in 
its own marketing efforts or in the fee it can receive when it sells 
the information to third parties. The company, however, does not suffer 
the full losses from disclosure of protected health information. 
Because of imperfect monitoring, customers often will not learn of, and 
thus not be able to enforce against, that unauthorized use. They will 
not be able to discipline the company efficiently in the marketplace 
for its less-than-optimal privacy practices. Because the company 
internalizes the gains from using the information, but does not bear a 
significant share of the cost to patients (in terms of lost privacy), 
it will have a systematic incentive to over-use protected health 
information. In market failure terms, companies will have an incentive 
to use protected health information where the patient would not have 
freely agreed to such use.
    These difficulties in contract enforcement are made worse by the 
third-party nature of many health insurance and payment systems. Even 
where individuals would wish to bargain for privacy, they may lack the 
legal standing to do so. For instance, employers often negotiate the 
terms of health plans with insurers. The employee may have no voice in 
the privacy or other terms of the plan, facing a take-it-or-leave-it 
choice of whether to be covered by insurance. The incentive of 
employers may be contrary to the wishes of employees--employers may in 
some cases inappropriately insist on having access to sensitive medical 
information in order to monitor employees' behavior and health status. 
In light of these complexities, there are likely significant market 
failures in the bargaining on privacy protection. Many privacy-
protective agreements that patients would wish to make, absent barriers 
to bargaining, will not be reached. The economic, legal and 
philosophical arguments become more compelling as the medical system 
shifts from predominantly paper to predominantly electronic records. 
From an economic perspective, market failures will arise to the extent 
that privacy is less well protected than the parties would have agreed 
to, if they were fully informed and had some equality of bargaining 
power. The chief market failures with respect to privacy concern 
information and bargaining costs. The information costs arise because 
of the information asymmetry between the company and the patient--the 
company typically knows far more than the patient about how the 
information will be used by that company. A health care provider or 
plan, for instance, knows many details about how protected health 
information will be generated, combined with other databases, or sold 
to third parties.
    Rapid changes in information technology mean that the size of the 
market failures will likely increase greatly in the markets for 
personal health information. Improvements in computers and networking 
mean that the costs of gathering, analyzing, and disseminating 
electronic data are plunging. Market forces are leading many medical 
providers and plans to shift from paper to electronic records, due both 
to lower cost and the increased functionality provided by having 
information in electronic form. These market changes will be 
accelerated by the administrative simplification implemented by the 
other regulations promulgated under HIPAA. A chief goal of 
administrative simplification, in fact, is to create a more efficient 
flow of medical information where appropriate. This proposed privacy 
regulation is an integral part of the overall effort of administrative 
simplification; it creates a framework for more efficient flows for 
certain purposes, including treatment and payment, while restricting 
flows in other circumstances except where appropriate institutional 
safeguards exist.
    If the medical system shifts to predominantly electronic records in 
the near future, without use of accompanying privacy rules, then one 
can imagine a near future where clerical and medical workers all over 
the country may be able to pull up protected health information about 
individuals--without meaningful patient consent and without effective 
institutional controls against further dissemination. In terms of the 
market failure, it will become more difficult for patients to know how 
their health provider or plan is using their personal health 
information. It will become more difficult to monitor the subsequent 
flows of protected health information, as the number of electronic 
flows and possible points of leakage both increase. Similarly, the 
costs and difficulties of bargaining to get the patients' desired level 
of use will likely rise due the greater number and types of entities 
that receive protected health information.
    As the benefits section, below, discusses in more detail, the 
protection of privacy and correcting the market failure have practical 
implications. Where patients are concerned about lack of privacy 
protections, they might fail to get medical treatment that they would 
otherwise seek. This failure to get treatment may be especially likely 
for certain conditions, including mental health, substance abuse, and 
conditions such as HIV. Similarly, patients who are concerned about 
lack of privacy protections may report inaccurately to their providers 
when they do seek treatment. For instance, they might decide not to 
mention that they are taking prescription drugs that indicate that they 
have an embarrassing condition. These inaccurate reports may lead to 
mis-diagnosis and less-than-optimal treatment, including

[[Page 60010]]

inappropriate additional medications. In short, the lack of privacy 
safeguards can lead to efficiency losses in the form of foregone or 
inappropriate treatment.
    The shift from paper to electronic records, with the accompanying 
greater flows of sensitive health information, also strengthens the 
arguments for giving legal protection to the right to privacy in 
protected health information. In an earlier period where it was far 
more expensive to access and use medical records, the risk of harm to 
individuals was relatively low. In the potential near future, where 
technology makes it almost free to send lifetime medical records over 
the Internet, the risks may grow rapidly. It may become cost-effective, 
for instance, for companies to offer services that allow purchasers to 
obtain details of a person's physical and mental treatments. In 
addition to legitimate possible uses for such services, malicious or 
inquisitive persons may download medical records for purposes ranging 
from identity theft to embarrassment to prurient interest in the life 
of a celebrity or neighbor. Of additional concern, such services might 
extend to providing detailed genetic information about individuals, 
without their consent. Many persons likely believe that they have a 
right to live in society without having these details of their lives 
laid open to unknown and possibly hostile eyes. These technological 
changes, in short, may provide a reason for institutionalizing privacy 
protections in situations where the risk of harm did not previously 
justify writing such protections into law.
    States have, to varying degrees, attempted to enhance 
confidentiality and correct the market problems by establishing laws 
governing at least some aspects of medical record privacy. This 
approach, though a step in the right direction, is inadequate. The 
states themselves have a patch quilt of laws that fail to provide a 
consistent or comprehensive policy, and there is considerable variation 
among the states in the scope of the protections provided. Moreover, 
health data is becoming increasingly ``national''; as more information 
becomes available in electronic form, it can have value far beyond the 
immediate community where the patient resides. Neither private action 
nor state laws provide a sufficiently rigorous legal structure to 
correct the market failure now or in the future. Hence, a national 
policy with consistent rules is a vital step toward correcting the 
market failure that exists.
    In summarizing the need for the proposed regulation, the discussion 
here has emphasized how the proposed regulation would address 
violations of a right to privacy in the information about oneself, 
market failures, and the need for a national policy. These arguments 
become considerably stronger with the shift from predominantly paper to 
predominantly electronic records. Other arguments could supplement 
these justifications. As discussed in the benefits section below, the 
proposed privacy protections may prevent or reduce the risk of unfair 
treatment or discrimination against vulnerable categories of persons, 
such as those who are HIV positive, and thereby, foster better health. 
The proposed regulation may also help educate providers, plans, and the 
general public about how protected health information is used. This 
education, in turn, may lead to better information practices in the 
future.
    Clearly, the growing problem of protecting privacy is widely 
understood and a major public concern. Over 80 percent of persons 
surveyed in 1999 agreed with the statement that they had ``lost all 
control over their personal information.'' A Wall Street Journal/NBC 
poll on September 16, 1999 asked Americans what concerned them most in 
the coming century. ``Loss of personal privacy'' topped the list, as 
the first or second concern of 29 percent of respondents. Other issues 
such as terrorism, world war, and global warming had scores of 23 
percent or less. The regulation is a major step toward addressing this 
public concern.

D. Baseline Privacy Protections

    Determining the impact of the rule on covered entities requires us 
to establish a baseline for current privacy policies. We must first 
determine current practices and requirements related to protected 
information--specifically, practices related to disclosure and use, 
notification of individuals of information practices, inspection and 
copying, amendment and correction, administrative policies, procedures, 
and related documentation.
    Privacy practices are most often shaped by professional 
organizations that publish ethical codes of conduct and by State law. 
On occasion, State laws defer to professional conduct codes. At 
present, where neither professional organizations nor States have 
developed guidelines for privacy practices, an entity may implement 
privacy practices independently.
    Professional codes of conduct or ethical behavior generally can be 
found as opinions and guidelines developed by organizations such as the 
American Medical Association, the American Hospital Association, and 
the American Dental Association. These are generally issued though an 
organization's governing body. The codes do not have the force of law, 
but providers often recognize them as binding rules.
    State laws are another important means of protecting health 
information. While professional codes of conduct usually only have 
slight variations, State laws vary dramatically. Some States defer to 
the professional codes of conduct, others provide general guidelines 
for privacy protection, and others provide detailed requirements 
relating to the protection of information relating to specific diseases 
or to entire classes of information. In cases where neither State law 
nor professional ethical standards exist, the only privacy protection 
individuals have is limited to the policies and standards that the 
health care entity adopts.
    Before we can attempt to determine the impact of the proposed rule 
on covered entities, we must make an effort to establish the present 
level of privacy protection. Current privacy protection practices are 
determined by the standards and practices that the professional 
associations have adopted for their members and by State laws.
1. Professional Codes of Conduct and the Protection of Health 
Information
    We examined statements issued by five major professional groups, 
one national electronic network association and a leading managed care 
association. There are a number of common themes that all the 
organizations appear to subscribe to:
     The need to maintain and protect an individual's health 
information;
     Development of policies to ensure the confidentiality of 
protected health information;
     Only the minimum necessary information should be released 
to accomplish the purpose for which the information is sought.
    Beyond these principles, the major associations differ with respect 
to the methods used to protect health information. One critical area of 
difference is the extent to which professional organizations should 
release protected health information. A major mental health association 
advocates the release of identifiable patient information ``* * * only 
when de-identified data are inadequate for the purpose at hand.'' A 
major association of physicians counsels members who use electronically 
maintained and transmitted data to require that they and their patients 
know in advance who has access to protected patient data, and the 
purposes for which the data will be

[[Page 60011]]

used. In another document, the association advises physicians not to 
``sell'' patient information to data collection companies without fully 
informing their patients of this practice and receiving authorization 
in advance to release of the information.
    Only two of the five professional groups state that patients have 
the right to review their medical records. One group declares this as a 
fundamental patient right, while the second association qualifies their 
position by stating that the physician has the final word on a 
patient's access to their health information. This association also 
recommends that its members respond to requests for access to patient 
information within 10 days, and recommends that entities allow for an 
appeal process when patients are denied access. The association further 
recommends that when a patient contests the accuracy of the information 
in their record and the entity refuses to accept the patient's change, 
the patient's statement should be included as a permanent part of the 
patient's record.
    In addition, three of the five professional groups endorse the 
maintenance of audit trails that can track the history of disclosures 
of protected health information.
    The one set of standards that we reviewed from a health network 
association advocated the protection of private health information from 
disclosure without patient authorization and emphasized that encrypting 
information should be a principal means of protecting patient 
information. The statements of a leading managed care association, 
while endorsing the general principles of privacy protection, were 
vague on the release of information for purposes other than treatment. 
They suggest allowing the use of protected health information without 
the patient's authorization for what they term ``health promotion.'' It 
is possible that the use of protected health information for ``health 
promotion'' may be construed under the proposed rule as part of 
marketing activities.
    Based on the review of the leading association standards, we 
believe that the proposed rule embodies all the major principles 
expressed in the standards. However, there are some major areas of 
difference between the proposed rule and the professional standards 
reviewed. These include the subject individual's right of access to 
health information in the covered entity's possession, relationships 
between contractors and covered entities, and the requirement that 
covered entities make their privacy policies and practices available to 
patients through a notice and the ability to respond to questions 
related to the notice. Because the proposed regulation would require 
that (with a few exceptions) patients have access to their health 
information that a covered entity possesses, large numbers of providers 
may have to modify their current practices in order to allow patient 
access, and to establish a review process if they deny a patient 
access. Also, none of the privacy protection standards reviewed require 
that providers or plans prepare a formal statement of privacy practices 
for patients (although the major physician association urges members to 
inform patients about who would have access to their protected health 
information and how their health information would be used). Only one 
HMO association explicitly made reference to information released for 
legitimate research purposes, and none of the other statements we 
reviewed discuss release of information for research purposes. The 
proposed rule allows for the release of protected health information 
for research purposes without an individual's authorization, but only 
for research that is supervised by an institutional research board or 
an equivalent privacy board. This research requirement may cause some 
groups to revise their disclosure authorization standards.
2. State Laws
    The second body of privacy protections is found in a myriad of 
State laws and requirements. To determine whether or not the proposed 
rule would preempt a State law, we first identified the relevant laws, 
and second, determined whether state or federal law provides 
individuals with greater privacy protection.
    Identifying the relevant state statutes: Health privacy statutes 
can be found in laws applicable to many issues including insurance, 
worker's compensation, public health, birth and death records, 
adoptions, education, and welfare. For example, Florida has over 60 
laws that apply to protected health information. According to the 
Georgetown Privacy Project \11\, Florida is not unique. Every State has 
laws and regulations covering some aspect of medical information 
privacy. In many cases, State laws were enacted to address a specific 
situation, such as the reporting of HIV/AIDS, or medical conditions 
that would impair a person's ability to drive a car. Identifying every 
State statute, regulation, and court case that interprets statutes and 
regulations dealing with patient medical privacy rights is an important 
task but cannot be completed in this discussion. For the purpose of 
this analysis, we simply acknowledge the complexity of State 
requirements surrounding privacy issues.
---------------------------------------------------------------------------

    \11\ Ibid, Goldman, p. 6.
---------------------------------------------------------------------------

    Lastly, we recognize that the private sector will need to complete 
a State-by-State analysis to comply with the notice and administrative 
procedures portion of this proposed rule. This comparison should be 
completed in the context of individual markets; therefore it is more 
efficient for professional associations or individual businesses to 
complete this task.
    Recognizing limits of our ability to effectively summarize State 
privacy laws and our difficulty in determining preemption at the 
outset, we discuss conclusions generated by the Georgetown University 
Privacy Project in Janlori Goldman's report, The State of Health 
Privacy: An Uneven Terrain. We consider Georgetown's report the best 
and most comprehensive examination of State privacy laws currently 
published. The report, which was completed in July 1999, is based on a 
50-state survey. However, the author is quick to point out that this 
study is not exhaustive.
    The following analysis of State privacy statutes and our attempt to 
compare State laws to the proposed rule is limited as a result of the 
large amount of State-specific data available. To facilitate 
discussion, we have organized the analysis into two sections: access to 
medical information and disclosure of medical information. Our analysis 
is intended to suggest areas where the proposed rule appears to preempt 
various State laws; it is not designed to be a definitive or wholly 
comprehensive State-by-State comparison.
    Access to Subject's Information: In general, State statutes provide 
individuals with access to their own medical records. However, only a 
few States allow individuals access to virtually all entities that hold 
health information. In 33 States, individuals may access their hospital 
and health facility records. Only 13 States guarantee individuals 
access to their HMO records, and 16 States provide individuals access 
to their medical information when it is held by insurers. Seven states 
have no statutory right of patient access; three States and the 
District of Columbia have laws that only assure individuals' right to 
access their mental health records. Only one State permits individuals 
access to records held by providers, but it excludes pharmacists from 
the definition of provider. Thirteen States grant individuals statutory 
right of access to pharmacy records.

[[Page 60012]]

    The amount that entities are allowed to charge for copying of 
individuals' records varies widely from State to State. A study 
conducted by the American Health Information Management Association 
\12\ found considerable variation in the amounts, structure, and 
combination of fees for search and retrieval, and the copying of the 
record.
---------------------------------------------------------------------------

    \12\ ``Practice Briefs,'' Journal of AHIMA; Harry Rhodes, Joan 
C. Larson, Association of Health Information Outsourcing Service; 
January 1999.
---------------------------------------------------------------------------

    In 35 States, there are laws or regulations that set a basis for 
charging individuals inspecting and copying fees. Charges vary not only 
by State, but also by whether the request is related to a worker's 
compensation case or a patient-initiated request. Charges also vary 
according to the setting. For example, States differentiate most often 
between clinics and hospitals. Also, charges vary by the number of 
pages and whether the request is for X-rays or for standard medical 
information.
    Of the 35 States with laws regulating inspection and copying 
charges, seven States either do not allow charges for retrieval of 
records or require that the entity provide the first copy free of 
charge. Some States may prohibit hospitals from charging patients a 
retrieval and copying fee, but allow clinics to do so. It is noteworthy 
that some States that do not permit charges for retrieval sometimes 
allow entities to charge per-page rates ranging between $0.50 and 
$0.75. In States that do allow a retrieval charge, the per-page charge 
is usually $0.25. Eleven states specify only that the record holder may 
charge ``reasonable/actual costs.''
    Of the States that allow entities to charge for record retrieval 
and copying, charges range from a flat amount of $1.00 to $20.00. Other 
States allow entities to charge varying rates depending on the amount 
of material copied. For example, an entity may charge $5.00 for the 
first five pages and then a fixed amount per page. In those cases, it 
appears that retrieval and copying costs were actually combined. The 
remaining States have a variety of cost structures: One State allows 
$0.25 per page plus postage plus a $15.00 retrieval charge. Another 
State allows a $1.00 charge per page for the first 25 pages and $0.25 
for each page above 25 pages plus a $1.00 annual retrieval charge. A 
third state allows a $1.00 per page charge for the first 100 pages and 
$0.25 for each page thereafter.
    According to the report by the Georgetown Privacy Project, among 
States that do grant access to patient records, the most common basis 
for denying individuals access is concern for the life and safety of 
the individual or others. This proposed rule considers the question of 
whether to deny patient access on the basis of concern for the 
individual's life or safety, concluding that the benefits of patient 
access most often outweigh harm to the individual. This issue, which is 
discussed in greater detail in other sections, has been resolved in 
favor of promoting patient access.
    The amount of time an entity is given to supply the individual with 
his or her record varies widely. Many States allow individuals to amend 
or correct inaccurate health information, especially information held 
by insurers. However, few States provide the right to insert a 
statement in the record challenging the covered entity's information 
when the individual and entity disagree.13
---------------------------------------------------------------------------

    \13\ Ibid, Goldman, p.20.
---------------------------------------------------------------------------

    Disclosure of Health Information: State laws vary widely with 
respect to disclosure of identifiable health information. Generally, 
States have applied restrictions on the disclosure of health 
information either to specific entities or to specific health 
conditions. Just two states place broad limits on disclosure of 
protected health information without regard for policies and procedures 
developed by covered entities. Most States require patient 
authorization before an entity may disclose health information, but as 
the Georgetown report points out, ``In effect, the authorization may 
function more as a waiver of consent--the patient may not have an 
opportunity to object to any disclosures.'' 14
---------------------------------------------------------------------------

    \14\ Ibid, Goldman, p. 21.
---------------------------------------------------------------------------

    It is also important to point out that none of the States appear to 
offer individuals the right to restrict disclosure of their protected 
health information for treatment. Thus, the provision of the proposed 
rule that allows patients to restrict disclosure of the their protected 
information is not currently included in any State law. Because the 
ability to restrict disclosure currently is not a standard practice, 
the proposed rule would require entities to add these capabilities to 
their information systems.
    State statutes often have exceptions to requiring authorization 
before disclosure. The most common exceptions are for purposes of 
treatment, payment, or auditing and quality assurance functions--which 
are similar to the definition we have established for health care 
operations, are therefore not subject to prior authorization 
requirements under the proposed rule. Restrictions on re-disclosure of 
protected health information also vary widely from State to State. Some 
States restrict the re-disclosure of health information, and others do 
not. The Georgetown report cites State laws that require providers to 
adhere to professional codes of conduct and ethics with respect to 
disclosure and re-disclosure of protected health information. What is 
not clear is the degree to which individual information is improperly 
released or used in the absence of specific legal sanctions.
    Most States have adopted specific measures to provide additional 
protections with regard to certain conditions or illnesses that have 
clear social or economic consequences. Although the Georgetown study 
does not indicate the number of States that have adopted disease-
specific measures to protect information related to sensitive 
conditions and illnesses, the analysis seems to suggest that nearly all 
States have adopted some form of additional protection. The conditions 
and illnesses most commonly afforded added privacy protection are:
     Substance abuse;
     Information derived from genetic testing;
     Communicable and sexually-transmitted diseases;
     Mental health; and
     Abuse, neglect, domestic violence, and sexual assault.
    We have included a specific discussion of disclosures for research 
purposes because if an entity decides to disclose information for 
research purposes, it will incur costs that otherwise would be 
associated with other disclosures under this rule. Some States place 
restrictions on releasing condition-specific health information for 
research purposes, while others allow release of information for 
research without the patient's authorization. States frequently require 
that researchers studying genetic diseases, HIV/AIDS, and other 
sexually transmitted diseases have different authorization and privacy 
controls than those used for other types of research. Some States 
require approval from an IRB or agreements that the data will be 
destroyed or identifiers removed at the earliest possible time. Another 
approach has been for States to require researchers to obtain 
sensitive, identifiable information from a State public health 
department. One State does not allow automatic release of protected 
health information for research purposes without notifying the subjects 
that their health information may be used in research and allowing

[[Page 60013]]

them opportunity to object to the use of their 
information.15
---------------------------------------------------------------------------

    \15\ ``Medical records and privacy: empirical effects of 
legislation; A memorial to Alice Hersh'; McCarthy, Douglas B; 
Shatin, Deborah; et al. Health Service Research: April 1, 1999; No. 
1, Vol. 34; p. 417. The article details the effects of the Minnesota 
law conditioning disclosure of protected health information on 
patient authorization.
---------------------------------------------------------------------------

    Comparing State statutes to the proposed rule: A comparison of 
State privacy laws with the proposed rule highlights several of the 
proposed rule's key implications:
     No State law requires covered entities to make their 
privacy and access policies available to patients. Thus, all covered 
entities that have direct contact with patients will be required to 
prepare a statement of their privacy protection and access policies. 
This necessarily assumes that entities have to develop procedures if 
they do not already have them in place.
     The proposed rule will affect more entities than are 
affected under many State laws. In the application of the proposed rule 
to providers, plans, and clearinghouses, the proposed rule will reach 
nearly all entities involved in delivering and paying for health care. 
Yet because HIPAA applies only to information that has been stored and 
transmitted electronically, the extent to which the proposed rule will 
reach information held by covered entities is unclear.
     State laws have not addressed the form in which health 
information is stored. We do not know whether covered entities will 
choose to treat information that never has been maintained or 
transmitted electronically in the same way that they treat post-
electronic information. We also do not know what portion of information 
held in non-electronic formats has ever been electronically maintained 
or transmitted. Nevertheless, the proposed rule would establish a more 
level floor from which States could expand the privacy protections to 
include both electronic information and non-electronic information.
     Among the three categories of covered entities, it appears 
that plans will be the most significantly affected by the access 
provisions of the proposed rule. Based on the Health Insurance 
Association of America (HIAA) data,16 there are 
approximately 94.7 million non-elderly persons who purchase health 
insurance in the 35 States that do not provide patients a legal right 
to inspect and copy their records. We do not have information on how 
many of those people are in plans that grant patients inspection and 
copying rights although State law does not require them to do so. We 
discuss these points more fully in the cost analysis section.
---------------------------------------------------------------------------

    \16\ Source Book of Health Insurance Data: 1997-1998, Health 
Insurance Association of America, 1998. p. 33.
---------------------------------------------------------------------------

     Although the proposed rule would establish a uniform 
disclosure and re-disclosure requirement for all covered entities, the 
groups most likely to be affected are health insurers, benefits 
management administrators, and managed care organizations. These groups 
have the greatest ability and economic incentives to use protected 
health information for marketing services to both patients and 
physicians without individual authorization. Under the proposed rule, 
covered entities would have to obtain the individual's authorization 
before they could use or disclose their information for purposes other 
than treatment, payment, and health care operations--except in the 
situations explicitly defined as allowable disclosures without 
authorization.
     While our proposed rule appears to encompass many of the 
requirements found in current State laws, it also is clear that within 
State laws, there are many provisions that cover specific cases and 
health conditions. Certainly, in States that have no research 
disclosure requirements, the proposed rule will establish a baseline 
standard. But in States that do place conditions on the disclosure of 
protected health information, the proposed rule may place additional 
requirements on covered entities.
     State privacy laws do not always apply to entities covered 
by the proposed rule. For example, State laws may provide strong 
privacy protection for hospitals and doctors but not for dentists or 
HMOs. State laws protecting particular types of genetic testing or 
conditions may be similarly problematic because they protect some types 
of sensitive information and not others. In some instances, a patient's 
right to inspect his or her medical record may be covered under State 
laws and regulations when a physician has the medical information, but 
not under State requirements when the information being sought is held 
by a plan. Thus, the proposed rule would extend privacy requirements 
already applicable to some entities within a State to other entities 
that currently are not subject to State privacy requirements.
3. Federal Laws
    The Privacy Act of 1974. Federal agencies will be required to 
comply with both the Privacy Act of 1974 (5 U.S.C. 552a) and the HIPAA 
regulation. The Privacy Act provides Federal agencies with a framework 
and scheme for protecting privacy, and the HIPAA regulation will not 
alter that scheme. Basic organizational and management features, such 
as the provision of safeguards to protect the privacy of health 
information and training for employees--which are required by this 
proposed rule--already are required by the Privacy Act.
    The proposed rule has been designed so that individuals will not 
have fewer rights than they have now under the Privacy Act. It may 
require that agencies obtain individual authorization for some 
disclosures that they now make without authorization under routine 
uses.
    Private-sector organizations with contracts to conduct personal 
data handling activities for the Federal government are subject to the 
Privacy Act by virtue of performing a function on behalf of a Federal 
agency. They too will be required to comply with both rules in the same 
manner as Federal agencies.
    Substance Abuse Confidentiality Statute. Organizations that operate 
specialized substance abuse treatment facilities and that either 
receive Federal assistance or are regulated by a Federal agency are 
subject to confidentiality rules established by section 543 of the 
Public Health Service Act (42 U.S.C. 290dd-2) and implementing 
regulations at 42 CFR part 2.
    These organizations will be subject both to that statute and to the 
HIPAA regulation. The proposed rule should have little practical effect 
on the disclosure policies of these organizations, because the patient 
confidentiality statute governing information about substance abuse is 
generally more restrictive than this proposed rule. These organizations 
will continue to be subject to current restrictions on their 
disclosures. The substance abuse confidentiality statute does not 
address patient access to records; the proposed privacy rule makes 
clear that patient access is allowed.
    Federal agencies are subject to these requirements, and currently 
they administer their records under both these requirements and the 
Privacy Act. The Department of Veterans Affairs is subject to its own 
substance abuse confidentiality statute, which is identical in 
substance to the one of more general applicability. It also covers 
information about HIV infection and sickle cell anemia (38 U.S.C. 
7332).
    Rules Regarding Protection of Human Subjects. Health care delivered 
by covered entities conducting clinical trials typically are subject to 
both the

[[Page 60014]]

proposed rule and to Federal regulations for protection of human re 
search subjects (The Federal Policy for the Protection of Human 
Subjects, codified for the Department of Health and Human Services in 
Title 45 CFR part 46, and/or the Food and Drug Administration's human 
subject regulations for research in support of medical product 
applications to the Food and Drug Administration, or regulated by that 
agency, at 21 CFR parts 50 and 56).
    Current human subjects rules impose no substantive restrictions on 
disclosure of patient information. Institutional review boards must 
consider the adequacy of confiden tiality protections for subjects, and 
researchers must tell subjects to what extent their con fidentiality 
will be protected. There should be no conflict between these 
requirements and the proposed rules. The proposed HIPAA regulation will 
expand on the current human subjects requirements by requiring a more 
detailed description of intended use of patient information. The 
proposed HIPAA rule also requires additional criteria for waiver of 
patient authorization.
    Medicaid. States may use information they obtain in the process of 
administering Medicaid only for the purposes of administering the 
program, pursuant to a State plan condition in section 1902(a)(7) of 
the Social Security Act, 42 U.S.C. 1396a(a)(7). The proposed HIPAA rule 
applies to State Medicaid programs, which under the rule are considered 
health plans. There will be no conflict in the substantive requirements 
of current rules and this proposed rule. Medicaid rules regarding 
disclosure of patient information are stricter than provisions of the 
proposed rule; therefore, Medicaid agencies simply will continue to 
follow the Medicaid rules.
    ERISA. ERISA (29 U.S.C. 1002) was enacted in 1974 to regulate 
pension and welfare employee benefit plans that are established by 
private-sector employers, unions, or both, to provide benefits to their 
workers and dependents. An employee welfare benefit plan provides 
benefits--through insurance or otherwise--such as medical, surgical 
benefits, as well as benefits to cover accidents, disability, death, or 
unemployment. In 1996, HIPAA amended ERISA to require portability, 
nondiscrimination, and renewability of health benefits provided by 
group health plans and group health insurance issuers. Many, although 
not all, ERISA plans are covered under the proposed rule as health 
plans. We believe that the proposed rule does not conflict with ERISA. 
Further discussion of ERISA can be found in the preamble for this 
proposed rule.

E. Costs

    Affected entities will be implementing the privacy proposed rules 
at the same time many of the administrative simplification standards 
are being implemented. As described in the overall impact analysis for 
the administrative simplification standards in the Federal Register, 
Vol. 63, No. 88, May 7, 1998, page 25344, the data handling changes 
occurring due to the other HIPAA standards will have both costs and 
benefits. To the extent the changes required for the privacy standards 
implementations can be made concurrently with the changes required for 
the other standards, costs for the combined implementation should be 
only marginally higher than for the administrative simplification 
standards alone. The extent of this additional cost is uncertain, in 
the same way that the costs associated with each of the individual 
administrative simplification standards was uncertain.
    The costs associated with implementing the privacy standards will 
be directly related to the number of affected entities and the number 
of affected transactions in each entity.17 We chose to use 
the SBA data in the RFA because we wanted our analysis to be as 
consistent to SBA definitions as possible to give the greatest accuracy 
for the RFA purposes. As described in the overall administrative 
simplification impact estimates (Tables 1 and 2, page 25344), about 
20,000 health plans (excluding non-self administered employer 
plans)18 and hundreds of thousands of providers face 
implementation costs. In the administrative simplification analysis, 
the costs of provider system upgrades were expected to be $3.6 billion 
over the period 1998-2002, and plan system cost upgrades were expected 
to be $2.2 billion. (In the aggregate, this $5.8 billion cost is 
expected to be more than completely offset by $7.3 billion in savings 
during the 5 year period analyzed).
---------------------------------------------------------------------------

    \17\ We have used two different data sources for our estimates 
of the number of entities. In the regulatory impact analysis (RIA), 
we chose to use the same number of entities cited in the other 
Administrative Simplification rules. In the regulatory flexibility 
analysis (RFA), we used the most recent data available from the 
Small Business Administration (SBA).
    We chose to use the Administrative Simplification estimates in 
the RIA because we wanted our analysis to be as consistent as 
possible with those regulations. We also believe that because the 
Administrative Simplification numbers are higher than those in the 
SBA data, it was the more conservative data source.
    \18\ We have not included the 3.9 million ``other'' employer 
health plans listed in HCFA's administrative simplification 
regulations because these plans that are administered by a third 
party. The proposed regulation will not regulate the employer-plans 
but will regulate the third party administrators of the plans. 
Because plan administrators have already been included in our 
analysis, these other employer-sponsored plans will not incur 
additional costs.
---------------------------------------------------------------------------

    The relationship between the HIPAA security and privacy standards 
is particularly relevant. On August 12, 1998, the Secretary published a 
proposed rule to implement the HIPAA standards on security and 
electronic standards. That rule specified the security requirements for 
covered entities that transmit and store information specified in Part 
C, Title XI of the Act. In general, that rule would establish the 
administrative and technical standards for protecting ``* * * any 
health information pertaining to an individual that is electronically 
maintained or transmitted.'' (63 FR 43243). The security rule is 
intended to spell out the system and administrative requirements that a 
covered entity must meet in order to assure itself and the Secretary 
that the protected health information is safe from destruction and 
tampering from people without authorization for its access.
    By contrast, the privacy rule describes the policies and procedures 
that would govern the circumstances under which protected health 
information may be used and released with and without patient 
authorization and when a patient may have access to his or her 
protected medical information. This rule assumes that a covered entity 
will have in place the appropriate security apparatus to successfully 
carry out and enforce the provisions contained in the security rule.
    Although the vast majority of health care entities are privately 
owned and operated, Federal, State, and local government providers are 
reflected in the total costs.19 Federal, state, and locally 
funded hospitals represent approximately 26 percent of hospitals in the 
United States. This is a significant portion of hospitals, but 
represents a relatively small proportion of all

[[Page 60015]]

provider entities. The number of government providers who are employed 
at locations other than government hospitals is significantly smaller 
(approximately 2 percent of all providers). Weighting the relative 
number of government hospital and non-hospital providers by the revenue 
these types of providers generate, we estimate that health care 
services provided directly by government entities represent 3.4 percent 
of total health care services. IHS and Tribal facilities costs are 
included in the total, since the adjustments made to the original 
private provider data to reflect federal providers included them. In 
drafting the proposed rule the Department consulted with States, 
representatives of the National Congress of American Indians, 
representatives of the National Indian Health Board, and a 
representative of the self-governance tribes. During the consultation 
we discussed issues regarding the application of Title II of HIPAA to 
the States and Tribes.
---------------------------------------------------------------------------

    \19\ These costs only represent those of public entities serving 
in the role of provider plan. The federal costs only reflect those 
incurred by a provider and plan offering Medicaid or Medicare, and 
hospitals run by the federal government including those run by the 
Veteran's Administration and the militry. Federal enforcement and 
other costs are not included. These estimates do not reflect any 
larger systems changes necessary to running federal programs. 
Likewise State costs are incorporated to the extent that States 
serve as providers or plans (including Medicaid).
---------------------------------------------------------------------------

    Estimating the costs associated with the privacy proposed rule 
involves, for each provision, consideration of both the degree to which 
covered entities must modify their records management systems and 
privacy policies under the proposed rule, and the extent to which there 
is a change in behavior of both patients and the covered entities as a 
result of the proposed rule. In the following sections we will examine 
these provisions as they would apply to the various covered entities as 
they undertake to comply with the proposed rule. The major costs that 
covered entities will incur are one time costs associated with 
implementation of the proposed rules, and ongoing costs that result 
from changes in behavior that both the covered entities and patients 
would make in response to the new proposed rules.
    We have quantified the costs imposed by the proposed regulation to 
the extent that we had adequate data. In some areas, however, there was 
too little data to support quantitative estimates. As a result, the RIA 
does not include cost estimates for all of the requirements of the 
regulation. The areas for which explicit cost estimates have not be 
made are: The principle of minimum necessary disclosure; the 
requirement that entities monitor business partners with whom they 
share PHI; creation of de-identified information; internal complaint 
processes; sanctions; compliance and enforcement; the designation of a 
privacy official and creation of a privacy board; and additional 
requirements on research/optional disclosures that will be imposed by 
the regulation. The cost of some of these provisions may be 
significant, but it would be inaccurate to project costs for these 
requirements given the fact that several of these concepts are new to 
the industry.
    The one time costs are primarily in the area of development and 
codification of procedures. Specific activities include: (1) Analysis 
of the significance of the federal regulations on covered entity 
operation; (2) development and documentation of policies and procedures 
(including new ones or modification of existing ones); (3) 
dissemination of such policies and procedures both inside and outside 
the organization; (4) changing existing records management systems or 
developing new systems; and (5) training personnel on the new policies 
and system changes.
    Covered entities will also incur ongoing costs. These are likely to 
be the result of: (1) Increased numbers of patient requests for access 
and copying of their own records; (2) the need for covered entities to 
obtain patient authorization for uses of protected information that had 
not previously required an authorization; (3) increased patient 
interest in limiting payer and provider access to their records; (4) 
dissemination and implementation both internally and externally of 
changes in privacy policies, procedures, and system changes; and (5) 
training on the changes.
    Compliance with the proposed rule will cost $3.8 billion over five 
years. These costs are in addition to the administrative simplification 
estimates. The cost of complying with the regulation represents 0.09 
percent of projected national health expenditures the first year the 
regulation is enacted. The five year costs of the proposed regulation 
also represents 1.0 percent of the increase in health care costs 
experienced over the same five-year period.20 Because of the 
uncertainty of the data currently available, the Department has made 
estimates on ``low'' and ``high'' range assumptions of the key 
variables. These estimates show a range of $1.8 to $6.3 billion over 
five years. It is important to note that these estimates do not include 
the areas for which we have made no cost estimates (discussed above).
---------------------------------------------------------------------------

    \20\ Health Care Finance Administration, Office of the Actuary, 
1997.
---------------------------------------------------------------------------

Initial Costs
Privacy Policies and Procedures
    With respect to the initial costs for covered entities, the 
expectation that most of the required HIPAA procedures will be 
implemented as a package suggests that additional costs for the privacy 
standards should be small. Since the requirements for developing formal 
processes and documentation of procedures mirror what will already have 
been required under the security regulations, the additional costs 
should be small. The expectation is that national and state 
associations will develop guidelines or general sets of processes and 
procedures and that these will generally be adopted by individual 
member entities. Relatively few providers or entities are expected to 
develop their own procedures independently or to modify significantly 
those developed by their associations. Our estimates are based on 
assumed costs for providers ranging from $300 to $3000, with the 
weighted average being about $375. The range correlates to the size and 
complexity of the provider, and is a reasonable estimate of the cost of 
coordinating the policies and procedures outlined in the proposed 
regulation. With fewer than 1 million provider entities, the aggregate 
cost would be on the order of $300 million.
    For plans, our estimate assumes that the legal review and 
development of written policies will be more costly because of the 
scope of their operations. They are often dealing with a large number 
of different providers and may be dealing with requirements from 
multiple states. Again, we expect associations to do much of the basic 
legal analysis but plans are more likely to make individual 
adaptations. We believe this cost will range from $300 for smaller 
plans and $15,000 for the largest plans. Because there are very few 
large plans in relation to the number of small plans, the weighted 
average implementation costs will be about $3050.
    The total cost of development of policies and procedures for 
providers and plans is estimated to be $395 million over five years.
System Compliance Costs
    With respect to revisions to electronic data systems, the specific 
refinements needed to fulfill the privacy obligations ought to be 
closely tied to the refinements needed for security obligations. The 
overall administrative simplification system upgrades (procedures, 
systems, and training) of $5.8 billion would certainly be 
disproportionately associated with the security standard, relative to 
the other 11 elements. If in privacy it constitutes 15 percent, then 
the security standard would represent about $900 million system cost. 
If the marginal cost of the privacy elements is another 10 percent,

[[Page 60016]]

then the addition cost would be $90 million.
Ongoing Costs
    The recurrent costs may be more closely related to total numbers of 
persons with claims than to the number of covered entities. The number 
of individuals served by an entity will vary greatly. The number of 
persons with claims will give a closer approximation of how many people 
entities will have to interact with for various provisions.
Notice of Privacy Practices
    No State laws or professional associations currently require 
entities to provide patients ``notice'' of their privacy policies. 
Thus, we expect that all entities will incur costs developing and 
disseminating privacy policy notices. Each entity will have a notice 
cost associated with each person to whom they provide services. Data 
from the 1996 Medical Expenditure Panel Survey shows that there are 
approximately 200 million ambulatory care encounters per year, nearly 
20 million persons with a hospital episode, 7 million with home-health 
episodes, and over 170 million with prescription drug use (350 million 
total). For the remaining four years of the five year period, we have 
estimated that, on average, a quarter of the remaining population will 
enter the system, and thus receive a notice. If we account for growth 
in the number of people who may enter the health care system over the 
five year period of our analysis, we estimate that approximately 543 
million patients will be seen at least once by one or more types of 
providers.
    The development cost for notices is estimated to cost $30 million 
over five years, though most of this is likely to occur the first year. 
The first year cost of providing notices to patients, customers and 
plan enrollees would be $106 million. The total five year cost of 
providing new and subsequent copies to all provider patients and 
customers would be approximately $209 million.
    The notice obligations of insurers apply on initial enrollment, 
with updated notices at least every 3 years. However, given enrollment 
changes and the sophistication of automation, we believe many plans 
would find it cheaper and more efficient to provide annual notices.
    The 1998 National Health Interview Survey (NHIS) from the Census 
Bureau shows about 174.1 million persons are covered by private health 
insurance, on an unduplicated basis. NHIS calculates that persons who 
are privately insured hold approximately 1.3 policies per person. Based 
on information provided by several plans, we believe most plans would 
provide an independent mailing the first year, but in subsequent years 
would provide notices as an inclusion in other mailings. The cost for 
this would be $0.75 over five years. If we account for these duplicate 
policies and assume that the cost of sending the notices to a 
policyholder is $0.75, the total cost to plans would be $231 million 
over five years. This includes both public and private plans.
    We request comments regarding our cost estimates for development 
and distribution of notices.
    The costs for more careful internal operation of covered entities 
to execute their formal privacy procedures are highly dependent on the 
extent to which current practice tracks the future procedures. Entities 
that already have strict data sharing and confidentiality procedures 
will incur minimal costs, since their activities need not change much. 
Entities that have not developed explicit health information privacy 
policies may be compelled to obtain patient authorization in situations 
where they did not previously. These changes will generate ongoing 
costs as well as initial costs. We solicit comment with respect to the 
way current costs differ from those projected by the requirements of 
the proposed privacy rule. An example of such an area is ``the minimum 
necessary disclosure principle''--because of differing current 
practices, we do not have data that reliably indicate how much this 
provision will cost.
Inspection and Copying
    The Georgetown report on State privacy laws indicates that 33 
states currently give patients some right to access medical 
information. The most common right of access granted by State law is 
the right to inspect personal information held by physicians and 
hospitals. In the process of developing estimates for the cost of 
providing access and copying, we assumed that most providers currently 
have procedures for allowing patients to inspect and copying their own 
record. Thus, we expect that the economic impact of requiring entities 
to allow individuals to access and copy their records should be 
relatively small. Copying costs, including labor, should be a fraction 
of a dollar per page. We expect the cost to be passed on to the 
consumer.
    There are few studies that address the cost of providing medical 
records to patients. The most recent was a study in 1998 by the 
Tennessee Comtroller of the Treasury. It found an average cost of $9.96 
per request, with an average of 31 pages per request. The total cost 
per page of providing copies was $0.32 per page. This study was 
performed on hospitals only. The cost per request may be lower for 
other types of providers, since those seeking hospital records are more 
likely to be sick and have more complicated records than those in a 
primary care or other type of office. An earlier report showed much 
higher costs than the Tennessee study. In 1992, Rose Dunn published a 
report based on her experience as a manager of medical records. She 
estimated a 10 page request would cost $5.32 in labor costs only, 
equaling labor cost per page of $0.53. However, this estimate appears 
to reflect costs before computerization. The expected time spent per 
search was 30.6 minutes; 85 percent of this time could be significantly 
reduced with computerization (this includes time taken for file 
retrieval, photocopying, and re-filing; file retrieval is the only time 
cost that would remain under computerization.) For subsequent 
estimates, we will use the Tennessee experience.
    The proposed regulation states that entities may charge patients a 
reasonable fee to inspect and copy their health information. For this 
reason, we expect the cost of inspecting and copying an individual 
medical record to be passed on to consumers who request the service. 
Nonetheless, it is important to provide an estimate of the potential 
costs associated with inspection and copying. We assume that 1.5 
percent of patients will request access to inspect and copy their 
medical record, and that the cost of accessing and copying a record is 
approximately $10 (as cited in the Tennessee study). The cost of 
inspection and copying is $81 million a year, or $405 million over five 
years. This cost is likely to be borne entirely by the consumer.
Amendment and Correction
    We have assumed that many providers make provisions to help 
patients expedite amendment and correction of their medical record 
where appropriate. However, as with inspection and copying, the right 
to request amendment and correction of an individual's medical record 
is not guaranteed by all States. Based on these assumptions and our 
cost analysis, we conclude that the principal economic effect of the 
proposed rule would be to expand the right to request amendment and 
correction to plans and providers that are not covered by state laws or 
codes of conduct. In addition, we expect that the proposed rule may 
draw additional attention to the issue of record inaccuracies and 
stimulate

[[Page 60017]]

patient demand for access, amendment, and correction of medical 
records.
    Our cost calculations assume that persons who request an 
opportunity to amend or correct their record have already obtained a 
copy of their medical record. Therefore, the administrative cost of 
amending and correcting the patient's record is completely separate 
from inspection and copying costs. In this section we have only 
addressed the cost of disputing a factual statement within the patient 
record, and do not calculate the cost of appeals or third party review.
    Administrative review of factual statements contained within a 
patient's record may be expensive. Most errors may be of a nature that 
a clerk or nurse can correct (e.g., the date of a procedure is 
incorrect) but some may require physician review. Thus, we have 
estimated that the average cost of amending and correcting a patient 
record may be $75 per instance.
    If amendment and correction requests are associated with two-thirds 
of requests for inspection and copying, and the cost of correcting (or 
noting the patient's request for correction) is $75, the total cost of 
amending and correcting patient records will be $407 million annually, 
or $2 billion over five years. Comments on our estimate of amendment 
and correction costs would be helpful, particularly if they speak to 
current amendment and correction costs or frequency in the health care 
industry.
Reconstructing a History of Disclosures (Other Than for Treatment and 
Payment)
    To our knowledge, no current State law or professional code 
requires providers and plans to maintain the capability to reconstruct 
a patient's health information history. Therefore, the requirement in 
this rule to be able to reconstruct the disclosure history of protected 
health information is completely new. Although it is likely that some 
providers and plans have already developed this capability, we assume 
that all providers and plans would be required to invest in developing 
the capacity to generate disclosure histories.
    With respect to reconstruction of disclosure history, two sets of 
costs would exist. On electronic records, fields for disclosure reason, 
information recipient, and date would have to be built into the data 
system. The fixed cost of the designing the system to include this 
would be a component of the $90 million additional costs discussed 
earlier. The ongoing cost would be the data entry time, which should be 
at de minimis levels. Comments would again be especially useful with 
respect to the extent to which recording the additional information 
goes beyond current practice.
Authorizations
    Although many States have laws that require entities to obtain 
patient authorization before releasing individually identified health 
information to payers and other third parties, many of the 
authorization requirements either allow for blanket authorizations that 
deprive the patient of meaningful control over the release of their 
health information, or the authorization statutes are less stringent 
than the provisions of the proposed rule. Therefore, for purposes of 
estimating the economic impact of the NPRM, we are assuming that all 
providers and plans will have to develop new procedures to conform to 
the proposed rule.
    Written patient authorization requirements will generate costs, to 
the extent covered entities are currently releasing information in the 
targeted circumstances without specific authority. Collecting such 
authorization should have costs on the order of those associated with 
providing access to records (not on a per page basis). The frequency of 
such collections is unknown. Since the requirement does not apply to 
treatment and payment, assuming 1 percent of the 543 million encounters 
over five years might be reasonable. At a cost of about $10 each, the 
aggregate cost would be about $54 million annually, or $271 million 
over five years. Comments would be especially useful from entities 
currently following such procedures.
Training
    The ongoing costs associated with paperwork and training are likely 
to be minimal. Because training happens as a regular business practice, 
and employee certification connected to this training is also the norm, 
we estimate that the marginal cost of paperwork and training is likely 
to be small. We assume a cost of approximately $20 per provider office, 
and approximately $60-100 for health plans and hospitals. Thus, we 
estimate that the total cost of paperwork and training will be $22 
million a year.
Conclusion
    Overall, the five-year costs beyond those already shown in the 
administrative simplification estimates would be about $3.8 billion 
over five years, with an estimated range of $1.8 to $6.3 billion. Table 
2 shows the components described above. The largest cost item is for 
amendment and correction, which is over half of the estimated total 
cost of the regulation. Inspection and copying, at $405 million over 
five years, and issuance of notices by providers and plans, at $439 
million over five years, are the second biggest components. The one-
time costs of development of policies and procedures by providers would 
represent approximately 10 percent of the total cost, or $333 million. 
Plans and clearinghouses would have a substantially smaller cost, about 
$62 million. Other systems changes are expected to cost about $90 
million over the period. Finally, the estimates do not consider all of 
the costs imposed by the regulation.

                      Table 2.--The Cost of Complying With the Proposed Privacy Regulation
                                                  [In Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                    Initial or      Annual cost      Five year
                            Provision                               first year       after the      (2000-2004)
                                                                    cost (2000)     first year         cost
----------------------------------------------------------------------------------------------------------------
Development of Policies and Procedures--Providers (totaling         $333,000,000  ..............    $333,000,000
 871,294).......................................................
Development of Policies and Procedures--Plans (totaling 18,225).      62,000,000  ..............      62,000,000
System Changes--All Entities....................................      90,000,000  ..............      90,000,000
Notice Development Cost--all entities...........................      20,000,000  ..............      30,000,000
Notice Issuance--Providers......................................      59,730,000      37,152,000     208,340,000
Notice Issuance--Plans..........................................      46,200,000      46,200,000     231,000,000
Inspection/Copying..............................................      81,000,000      81,000,000     405,000,000
Amendment/Correction............................................     407,000,000     407,000,000   2,035,000,000
Written Authorization...........................................      54,300,000      54,300,000     271,500,000

[[Page 60018]]

 
Paperwork/Training..............................................      22,000,000      22,000,000     110,000,000
Other Costs *...................................................           **N/E             N/E             N/E
                                                                 -----------------------------------------------
    Total.......................................................   1,165,230,000     647,652,000   3,775,840,000
----------------------------------------------------------------------------------------------------------------
* Other Costs include: minimum necessary disclosure; monitoring business partners with whom entities share PHI;
  creation of de-identified information; internal complaint processes; sanctions; compliance and enforcement;
  the designation of a privacy official and creation of a privacy board; additional requirements on research/
  optional disclosures that will be imposed by the regulation.
** N/E = ``Not estimated''.

Costs to the Federal Government
    The proposed rule will have a cost impact on various federal 
agencies that administer programs that require the use of individual 
health information. Federal agencies or programs clearly affected by 
the rule are those that meet the definition of a covered entity. The 
costs when government entities are serving as providers are included in 
the total cost estimates. However, non-covered agencies or programs 
that handle medical information, either under permissible exceptions to 
the disclosure rules or through an individual's expressed 
authorization, will likely incur some costs complying with provisions 
of this rule. A sample of federal agencies encompassed by the broad 
scope of this rule include the: Department of Health and Human 
Services, Department of Defense, Department of Veterans Affairs, 
Department of State, and the Social Security Administration.
    The federal costs of complying with the regulation are included in 
the estimates of total costs. The greatest cost and administrative 
burden on the federal government will fall to agencies and programs 
that act as covered entities, by virtue of being either a health plan 
or provider. Examples include the Medicare, Medicaid, Children's Health 
Insurance and Indian Health Service programs at the Department of 
Health and Human Services; the CHAMPVA health program at the Department 
of Veterans Affairs; and the TRICARE health program at the Department 
of Defense. These and other health insurance or provider programs 
operated by the federal government are subject to requirements placed 
on covered entities under this proposed rule, including, but not 
limited to, those outlined in Section D of the impact analysis. While 
many of these federal programs already afford privacy protections for 
individual health information through the Privacy Act, this rule is 
expected to create additional requirements beyond those covered by 
existing Privacy Act rule. Further, we anticipate that most federal 
health programs will, to some extent, need to modify their existing 
Privacy Act practices to fully comply with this rule.
    The cost to federal programs that function as health plans will be 
generally the same as those for the private sector. The primary 
difference is the expectation that systems compliance costs may be 
higher due to the additional burden of compliance and oversight costs.
    A unique cost to the federal government will be in the area of 
enforcement. The Office of Civil Rights (OCR), located at the 
Department of Health and Human Services, has the primary responsibility 
to monitor and audit covered entities. OCR will monitor and audit 
covered entities in both the private and government sectors, will 
ensure compliance with requirements of this rule, and will investigate 
complaints from individuals alleging violations of their privacy 
rights. In addition, OCR will be required to recommend penalties and 
other remedies as part of their enforcement activities. These 
responsibilities represent an expanded role for OCR. Beyond OCR, the 
enforcement provisions of this rule will have additional costs to the 
federal government through increased litigation, appeals, and inspector 
general oversight.
    Examples of other unique costs to the federal government include 
such activities as public health surveillance at the Centers for 
Disease Control and Prevention, health research projects at the Agency 
for Health Care Policy and Research, clinical trials at the National 
Institutes of Health, and law enforcement investigations and 
prosecutions by the Federal Bureau of Investigations. For these and 
other activities, federal agencies will incur some costs to ensure that 
protected health information is handled and tracked in ways that comply 
with the requirements of this title. A preliminary analysis of these 
activities suggests that the federal cost will be on the order of $31 
million. We are currently in the process of refining these estimates 
and will include better information on them in the final rule.
Costs to State Governments
    The proposed rule will also have a cost effect on various state 
agencies that administer programs that require the use of individual 
health information. State agencies or programs clearly affected by the 
rule are those that meet the definition of a covered entity. The costs 
when government entities are serving as providers are included in the 
total cost estimates. However, non-covered agencies or programs that 
handle medical information, either under permissible exceptions to the 
disclosure rules or through an individual's expressed authorization, 
will likely incur some costs complying with provisions of this rule. 
Samples of state agencies encompassed by the broad scope of this rule 
include the: Medicaid, Children's Health Insurance program at the 
Department of Health and Human Services.
    We have included state costs in the estimation of total costs. The 
greatest cost and administrative burden on the state government will 
fall to agencies and programs that act as covered entities, by virtue 
of being either a health plan or provider. Examples include the 
Medicaid, Children's Health Insurance program at the Department of 
Health and Human Services. These and other health insurance or provider 
programs operated by state government are subject to requirements 
placed on covered entities under this proposed rule, including, but not 
limited to, those outlined in Section D of the impact analysis. While 
many of these state programs already afford privacy protections for 
individual health information through the Privacy Act, this rule is 
expected to create additional requirements beyond those covered by

[[Page 60019]]

existing Privacy Act rule. Further, we anticipate that most state 
health programs will, to some extent, need to modify their existing 
Privacy Act practices to fully comply with this rule.
    The cost to state programs that function as health plans will be 
different than the private sector, much as the federal costs vary from 
private plans. A preliminary analysis suggests that state costs will be 
on the order of $90 million over five years. We will refine the 
estimates for the state government costs for enforcement, research and 
other distinct state government functions in the final rule. We welcome 
comment by state and local governments which will help the Department 
improve its analysis on these state costs.

F. Benefits

    As we have discussed in the preamble, there are important societal 
benefits associated with improving health information privacy. 
Confidentiality is a key component of trust between patients and 
providers, and some studies indicate that a lack of privacy may deter 
patients from obtaining preventive care and treatment. 21 
For these reasons, traditional approaches to estimating the value of a 
commodity cannot fully capture the value of personal privacy. It may be 
difficult for individuals to assign value to privacy protection because 
most individuals view personal privacy as a right. Because we promote 
the view that privacy protection is an important personal right, the 
benefits of the proposed regulation are impossible to estimate based on 
the market value of health information alone. However, it is possible 
to evaluate some of the benefits that may accrue to individuals as a 
result of proposed regulation, and these benefits, alone, suggest that 
the regulation is warranted. Added to these benefits is the intangible 
value of privacy, the personal security that we may feel when our 
records are confidential, which is very real and very significant but 
for which there is no economic value or proxy.
---------------------------------------------------------------------------

    \21\ Equifax-Harris Consumer Privacy Survey, 1994.
---------------------------------------------------------------------------

    There are a number of ways to discuss the expected benefits of this 
proposed regulation. The first option is to discuss the benefits 
qualitatively. We believe that this is necessary to give the reader a 
basic understanding of how this proposed regulation will benefit 
society. The second option that we have used is to quantify the 
benefits of the proposed rule as they would apply to a few illness 
categories that may be particularly responsive to privacy concerns. 
This quantitative discussion is meant to be illustrative of the 
benefits rather than a comprehensive accounting of all of the benefits 
of the proposed rule. The combination of the two approaches clearly 
illustrates that the benefits of the regulation are significant in 
relation to the economic costs.
    Before beginning our discussion of the benefits, it is important to 
create a framework for how the costs and benefits may be viewed in 
terms of individuals rather than societal aggregates. We have estimated 
the value an insured individual would need to place on increased 
privacy to make the proposed Privacy regulation a net benefit to those 
who receive health insurance. Our estimates are derived from data 
produced by the 1998 Current Population Survey from the Census Bureau, 
and report that 220 million persons are covered by either private or 
public health insurance. Joining the Census Bureau data with cost 
assumptions calculated in Section E, we have estimated the cost of the 
proposed regulation is $3.41 per insured individual. If we assume that 
individuals who use the health care system will be willing to pay more 
than $3.41 per year (or approximately $0.28 per month) to improve 
health information privacy, the benefits of the proposed regulation 
will outweigh the cost.
    This is a conservative estimate of the number of people who will 
benefit from the regulation because it assumes that only those 
individuals who have health insurance will use medical services or 
benefit from the provisions of the proposed regulation. Currently, 
there are 44 million Americans who do not have any form of health care 
insurance. In addition, the estimates do not include those who pay for 
medical care directly, without any insurance or government support. By 
lowering the number of users in the system, we have inflated our 
estimate of the per-person cost of the regulation, therefore, we assume 
that our estimate represents the highest cost to an individual.
    An alternative approach to determining how people would have to 
value increased privacy for this regulation to be beneficial is to look 
at the costs divided by the number of encounters with health care 
professionals annually. Data from the Medical Expenditure Panel Survey 
(MEPS) produced by the Agency for Health Care Policy Research (AHCPR) 
report approximately 1.62 billion health care visits, or encounters 
annually (e.g., office visits, hospital and nursing home stays, etc.). 
As with our calculation of average annual cost per insured patient, we 
have divided the total cost of complying with the regulation ($751 
million per year) by the total annual number of health care encounters. 
The cost of instituting requirements of the proposed regulation is 
$0.46 per health care encounter. If we assume that individuals would be 
willing to pay more than $0.46 per health care encounter to improve 
health information privacy, the benefits of the proposed regulation 
will outweigh the cost.
Qualitative Discussion
    A well designed privacy standard can be expected to build 
confidence among the public about the confidentiality of their medical 
records. The seriousness of public concerns about privacy in general 
are shown in the 1994 Equifax-Harris Consumer Privacy Survey, where 
``84 percent of Americans are either very or somewhat concerned about 
threats to their personal privacy.'' 22 A 1999 report, 
``Promoting Health and Protecting Privacy'' notes ``* * * many people 
fear their personal health information will be used against them: to 
deny insurance, employment, and housing, or to expose them to unwanted 
judgements and scrutiny.'' 23 These concerns would be partly 
allayed by the privacy standard. Further, increased confidence will 
increase the likelihood of some people seeking treatment for particular 
classes of disease. It will also change the dynamic of current 
payments. Insured patients currently paying out-of-pocket for 
confidentiality reasons will be more likely to file with their insurer. 
The increased utilization that would result from increased confidence 
in privacy could be beneficial under many circumstances. For many 
medical conditions, early treatment can lead to lower costs.
---------------------------------------------------------------------------

    \22\ Consumer Privacy Survey, Harris-Equifax, 1994, p. vi.
    \23\ Promoting Health: Protecting Privacy, California Health 
Care Foundation and Consumers Union, January 1999, p. 12.
---------------------------------------------------------------------------

    Fear of disclosure of treatment is an impediment to health care for 
many Americans. In the 1993 Harris-Equifax Health Information Privacy 
Survey, 7 percent of respondents said they or a member of their 
immediate family had chosen not to seek medical services due to fear of 
harm to job prospects or other life opportunities. About 2 percent 
reported having chosen not to file an insurance claim because of 
concerns with privacy or confidentiality. 24 Increased 
confidence on the part of patients that their privacy would be 
protected would lead to increased

[[Page 60020]]

treatment among people who delay or never begin care, as well as among 
people who receive treatment but pay directly (to the extent that the 
ability to use their insurance benefits will reduce cost barriers to 
more complete treatment).
---------------------------------------------------------------------------

    \24\ Health Information Privacy Survey, Harris-Equifax, 1993, 
pp. 49-50.
---------------------------------------------------------------------------

    The following are four examples of areas where increased confidence 
in privacy would have significant benefits. They were chosen both 
because they are representative of widespread and serious health 
problems, and because they are areas where reliable and relatively 
complete data are available for this kind of analysis. The logic of the 
analysis, however, applies to any health condition. Even for relatively 
minor conditions, an individual still might be concerned with 
maintaining privacy, and even a person with no significant health 
problems is going to value privacy because of the possibility at some 
time they will have a condition that they want to keep private.
    Cancer. The societal burden of disease imposed by cancer is 
indisputable. Cancer is the second leading cause of death in the 
US,25 exceeded only by heart disease. In 1999, 1.38 million 
new cancer cases will be diagnosed, as well as 900,000 new basal and 
squamous skin cell cancers. 26 The National Cancer Institute 
estimates that the overall cost of cancer is $104 billion; $35 billion 
in direct medical cost, $12 billion for morbidity costs (cost of lost 
productivity) and $57 billion for mortality costs.27
---------------------------------------------------------------------------

    \25\ American Cancer Society. http://4a2z.com/cgi/
rfr.cgi?4CANCER-2-http://www.cancer.org/frames.html
    \26\ American Cancer Society. http://www.cancer.org/statistics/
97cff/97facts.html
    \27\ American Cancer Society. http://www.cancer.org/statistics/
97cff/97facts.html
_____________________________________-

 Among the most important elements in the fight against cancer are 
screening, early detection and treatment of the disease. However, 
however, many patients are concerned that some screening procedures 
will make them vulnerable to discrimination by insurers or employers. 
These privacy concerns have been cited as a reason patients do not seek 
early treatment for diseases such as cancer. As a result of forgoing 
early screening, cancer patients may ultimately face a more severe 
illness. For example, half of new diagnoses occur among types of cancer 
for which screening is available. Based on this research, studies show 
that if Americans participated in regular cancer screening, the rate of 
survival among patients who have screening-accessible cancers could 
increase to 95 percent.28
---------------------------------------------------------------------------

    \28\ American Cancer Society. http://www.cancer.org/statistics/
97cff/97facts.html
_____________________________________-

 Approximately 184,300 women will be diagnosed with breast cancer 
this year,29 and 25,000 women will be diagnosed with ovarian 
cancer.30 In the same year, almost 44,000 women will die of 
breast cancer,31 and 14,500 will die from ovarian 
cancer.32 Early detection of these cancers could have a 
significant impact on reducing loss due to disability and death. For 
example, only 24 percent of ovarian cancers are diagnosed in the early 
stages. Of these, approximately 90 percent of patients survive 
treatment. The survival rate of women who detect breast cancer early is 
similarly high; more than 90 percent of women who detect and treat 
breast cancer in its early stages will survive.33
---------------------------------------------------------------------------

    \29\ Avon's Breast Cancer Crusade. http://www.pmedia.com/Avon/
library/faq.html
    \30\ Ovarian Cancer National Alliance. http://
www.ovariancancer.org/index.shtml
    \31\ Cancer Statistics, 1999, Landis, Murray, Bolden and Wingo. 
CA: A Cancer Journal for Clinicians, Jan/Feb, 1999, Vol. 49, No. 1
    \32\ Ovarian Cancer National Alliance. http://
www.ovariancancer.org/index.shtml
    \33\ Breast Cancer Information Service. http://trfn.clpgh.org/
bcis/FAQ/facts2.html
_____________________________________-

 Researchers have developed screening techniques to identify breast, 
ovarian, and colon cancers, and tests have been developed to identify 
the presence or absence of cellular abnormalities that may lead to 
cancer. Despite these technological advances, the principle of patient 
autonomy requires that patients must decide for themselves if they will 
submit to screening procedures. Many individuals fear that employers 
and insurers will use cancer screening to discriminate against them. 
Several studies illustrate that persons with and without cancer fear 
discrimination. Thus, despite the potential benefits that early 
identification of cancer may yield, many researchers find that patient 
concerns regarding the confidentiality of cancer screening may prevent 
them from requesting the test, and result in disability or loss of 
life.
    HIV/AIDS. Early detection is essential for the health and survival 
of an HIV (Human Immunodeficiency Virus) positive person. Concerns 
about the confidentiality of HIV status may prevent some people from 
getting tested. For this reason, each state has passed some sort of 
legislation regarding the confidentiality of HIV status. However, HIV 
status can be revealed indirectly through disclosure of HAART (Highly 
Active Anti-Retroviral Therapy) or similar HIV treatment drug use. In 
addition, since HIV/AIDS (Acquired Immune Deficiency Syndrome) is often 
the only specially protected condition, ``blacked out'' information on 
medical charts could indicate HIV positive status.34 
Strengthening privacy protections beyond this disease could increase 
confidence in privacy regarding HIV as well. Drug therapy for HIV 
positive persons has proven to be a life-extending, cost-effective 
tool. 35 A 1998 study showed that beginning treatment with 
HAART in the early asymptomatic stage is more cost-effective than 
beginning it late. After five years, only 15 percent of patients with 
early treatment are estimated to develop an ADE (AIDS-defining event), 
whereas 29 percent would if treatment began later. Early treatment with 
HAART prolongs survival (adjusted for quality of life) by 6.2 percent. 
The overall cost-effectiveness of early HAART treatment is estimated at 
$23,700 per quality-adjusted year of life saved.36
---------------------------------------------------------------------------

    \34\ Promoting Health: Protecting Privacy, California Health 
Care Foundation and Consumers Union, January 1999, p. 13.
    \35\ For example, Roger Detels, M.D., et al., in ``Effectiveness 
of Potent Anti-Retroviral Therapy * * * ``JAMA, 1998; 280: 1497-1503 
note the impact of therapy on HIV persons with respect to 
lengthening the time to development of AIDS, not just delaying death 
in persons who already have AIDS.
    \36\ John Hornberger et al, ``Early treatment with Highly Active 
Anti-Retroviral Therapy (HAART) is cost-effective compared to 
delayed treatment,'' 12th World AIDS conference, 1998.
---------------------------------------------------------------------------

    Other Sexually Transmitted Diseases. It is difficult to know how 
many people are avoiding testing for STDs despite having a sexually 
transmitted disease. A 1998 study by the Kaiser Family Foundation found 
that the incidence of disease was 15.3 million in 1996, though there is 
great uncertainty due to under-reporting.37 For a 
potentially embarrassing disease such as an STD, seeking treatment 
requires trust in both the provider and the health care system for 
confidentiality. Greater trust should lead to more testing and greater 
levels of treatment. Earlier treatment for curable STDs can mean a 
decrease in morbidity and the costs associated with complications. 
These include expensive fertility problems, fetal blindness, ectopic 
pregnancies, and other reproductive complications.38 In 
addition, there could be greater overall savings if earlier treatment 
translates into reduced spread of infections.
---------------------------------------------------------------------------

    \37\ Sexually Transmitted Diseases in America, Kaiser Family 
Foundation, 1998. p. 12.
    \38\ Standard Medical information; see http://www.mayohealth.org 
for examples.
---------------------------------------------------------------------------

    Substance Abuse and Mental Health Treatment. When individuals have 
a better understanding of the privacy practices that we are requiring 
in this proposed rule, some will be less reluctant to seek substance 
abuse and mental health treatment. One way that individuals will 
receive this information is through the notice requirement.

[[Page 60021]]

Increased use of mental health services would be expected to be 
beneficial to the persons receiving the care, to their families, and to 
society at large. The individual direct benefit from treatment would 
include an improved quality of life, reduced disability associated with 
the mental conditions, and a reduced mortality rate. The benefit to 
families would include quality of life improvements and reduced medical 
costs for other family members associated with abusive behavior by the 
treated individual. The benefit to society would include reduced costs 
of crime and reduced future public program treatment costs.
    The 1998 Substance Abuse and Mental Health Statistics Source Book 
from SAMHSA reports cost-of-disease estimates from a range of studies, 
suggesting several hundred billion dollars of non-treatment costs 
associated with alcohol, drug, and mental (ADM) disorders. As an 
example of the magnitude of costs associated with mental health 
treatment, a 1997 National Institutes of Health report suggests that 
the total economic cost of mental health disorders such as anxiety, 
depressive (mood) disorders, eating disorders, and schizophrenia is 
approximately $115.5 billion annually.39 Evidence suggests 
that appropriate treatment of mental health disorders can result in 50-
80 percent of individuals experiencing improvements in these types of 
conditions. Improvements in patient functioning and reduced hospital 
stays could result in hundreds of million of dollars in cost savings 
annually.
---------------------------------------------------------------------------

    \39\ Disease-Specific Estimates of Direct and Indirect Costs of 
Illness and NIH Support; 1997 Update, 1997.
---------------------------------------------------------------------------

    The potential additional economic benefits associated with 
improving patient confidentiality and thus encouraging some unknown 
portion of individuals to either seek initial mental health treatment 
or increase service use are difficult to quantify well. Nevertheless, 
one can lay out a range of possible benefit levels to illustrate the 
possibility of cost savings associated with an expansion of mental 
health treatment to individuals who, due to protections offered by the 
privacy regulation, might seek mental health treatment that they 
otherwise would not have absent this regulation. This can be 
illustrated by drawing upon existing data on both the economic costs of 
mental illness and the treatment effectiveness of mental health 
interventions.
    Although figures on the number of individuals who avoid mental 
health treatment due to privacy concerns do not exist, some indirect 
evidence is available. A 1993 Harris-Equifax Health Information Privacy 
Survey (noted earlier) found that 7 percent of respondents reported 
that they or a member of their immediate family had chosen not to seek 
services for a physical or mental health condition due to fear of harm 
to job prospects or other life opportunities. It should be noted that 
this survey is somewhat dated and represents only one estimate. 
Moreover, given the wording of the question, there are other reasons 
aside from privacy concerns that led these individuals to respond 
positively.
    For the purpose of an illustration, however, assumptions can be 
made about what proportion of the 7 percent responding affirmatively to 
this question may have avoided seeking mental health services due to 
privacy concerns. Given the proportion of mental health services that 
compromise total health care services in this country, a reasonable 
upper limit of the number of individuals avoiding mental health 
treatment due to privacy concerns might be 1.8 percent (i.e., 25% of 
7%), while a reasonable lower limit might be 0.36 percent (i.e., 5% of 
7%). Taking these figures as upper and lower limits, it is possible to 
estimate potential benefits by multiplying these figures by the annual 
economic cost reductions associated with treatment effectiveness rates. 
For example, using the upper limit of 1.8 percent, multiplying this by 
the annual economic costs of mental illness ($115.5 billion) and a 
treatment effectiveness rate of 80 percent, yields an estimate of 
potential annual benefits of $1,663,200,000. Similarly, using the upper 
limit of 1.8 percent coupled with a treatment effectiveness rate of 50 
percent yields an estimate of potential annual benefits of 
$1,039,500,000. Assuming a lower limit of 0.36 percent more individuals 
seeking mental health treatment due to enhance privacy protections, 
coupled with a treatment effectiveness rate of 80% yields an estimate 
of potential annual benefits of $332,640,000. Similarly, using the 
lower limit of 0.36 percent coupled with a treatment effectiveness rate 
of 50 percent yields an estimate of potential annual benefits of 
$207,900,000. Therefore, given the existing data on the annual economic 
costs of mental illness and the rates of treatment effectiveness for 
these disorders, coupled with assumptions regarding the percentage of 
individuals who might seek mental health treatment under conditions of 
greater privacy protections, the potential additional economic benefit 
in this one treatment area could range from approximately $208 million 
to $1.67 billion annually.

  Table 3.--Potential Benefits of the Proposed Privacy Regulation From
     Cost Savings Due to Early Treatment of Mental Health Disorders
------------------------------------------------------------------------
                                        Total annual    Percent net cost
                                      economic cost of    reduction if
               Illness                  illness  (in     additional care
                                          billions)        is received
------------------------------------------------------------------------
Mental Health--Anxiety Disorders....             $46.6             70-90
Mental Health--Depressive (Mood)                  30.4             60-80
 Disorders..........................
Mental Health--Eating Disorders.....               6.0             40-60
Mental Health--Schizophrenia........              32.5             60-85
                                     -----------------------------------
    Total...........................             115.5               N/A
------------------------------------------------------------------------


[[Page 60022]]

G. Examination of Alternative Approaches

1. Creation of De-identified Information  (164.506(d))
    We considered defining ``individually identifiable health 
information'' as any information that is not anonymous, that is, for 
which there is any possibility of identifying the subject. We rejected 
this option, for several reasons. First, the statute suggests a 
different approach. The term ``individually identifiable health 
information'' is defined in HIPAA as health information that:

* * * identifies the individual, or with respect to which there is a 
reasonable basis to believe that the information can be used to 
identify the individual.

By including the modifier ``reasonable basis,'' Congress appears to 
reject the absolute approach to defining ``identifiable.'' Covered 
entities would not always have the statistical sophistication to know 
with certainty when sufficient identifying information has been removed 
so that the record is no longer identifiable. We believe that covered 
entities need more concrete guidance as to when information will and 
will not be ``identifiable'' for purposes of this regulation.
    Defining non-identifiable to mean anonymous would require covered 
entities to comply with the terms of this regulation with respect to 
information for which the probability of identification of the subject 
is very low. We want to encourage covered entities and others to remove 
obvious identifiers or encrypt them whenever possible; use of the 
absolute definition of ``identifiable'' would not promote this salutary 
result.
    For these reasons, we propose at Sec. 164.506(d)(2)(ii) that there 
be a presumption that, if specified identifying information is removed 
and if the holder has no reason to believe that the remaining 
information can be used by the reasonably anticipated recipients alone 
or in combination with other information to identify an individual, 
then the covered entity would be presumed to have created de-identified 
information.
    At the same time, in proposed Sec. 164.506(d)(2)(iii), we are 
leaving leeway for more sophisticated data users to take a different 
approach. We are including a ``reasonableness'' standard so that 
entities with sufficient statistical experience and expertise could 
remove or code a different combination of information, so long as the 
result is still a low probability of identification. With this 
approach, our intent is to provide certainty for most covered entities, 
while not limiting the options of more sophisticated data users.
    In this rule we are proposing that covered entities and their 
business partners be permitted to use protected health information to 
create de-identified health information. Covered entities would be 
permitted to further use and disclose such de-identified information in 
any way, provided that they do not disclose the key or other mechanism 
that would enable the information to be re-identified, and provided 
that they reasonably believe that such use or disclosure of de-
identified information will not result in the use or disclosure of 
protected health information. See proposed Sec. 164.506(d)(1). This 
means that a covered entity could not disclose de-identified 
information to a person if the covered entity reasonably believes that 
the person would be able to re-identify some or all of that 
information, unless disclosure of protected health information to such 
person would be permitted under this proposed rule. In addition, a 
covered entity could not use or disclose the key to coded identifiers 
if this rule would not permit the use or disclosure of the identified 
information to which the key pertains. If a covered entity re-
identifies the de-identified information, it may only use or disclose 
the re-identified information consistent with these proposed rules, as 
if it were the original protected health information.
    We invite comment on the approach that we are proposing and on 
whether alternative approaches to standards for entities determining 
when health information can reasonably be considered no longer 
individually identifiable should be considered.
2. General Rules (Sec. 164.506)
    As a general rule, we are proposing that protected health 
information not be used or disclosed by covered entities except as 
authorized by the individual who is the subject of such information or 
as explicitly provided this rule. Under this proposal, most uses and 
disclosures of an individual's protected health information would not 
require explicit authorization by the individual, but would be 
restricted by the provisions of the rule. Covered entities would be 
able to use or disclose an individual's protected health information 
without authorization for treatment, payment and health care 
operations. See proposed Sec. 164.506(a)(1)(i). Covered entities also 
would be permitted to use or disclose an individual's protected health 
information for specified public and public policy-related purposes, 
including public health, research, health oversight, law enforcement, 
and use by coroners. Covered entities would be permitted by this rule 
to use and disclose protected health information when required to do so 
by other law, such as a mandatory reporting requirement under State law 
or pursuant to a search warrant. See proposed Sec. 164.510. Covered 
entities would be required by this rule to disclose protected health 
information for only two purposes: to permit individuals to inspect and 
copy protected health information about them (see proposed 
Sec. 164.514) and for enforcement of this rule (see proposed 
Sec. 164.522(d)).
    Covered entities of all types and sizes would be required to comply 
with the proposed privacy standards outlined below. The proposed 
standards would not impose particular mechanisms or procedures that 
covered entities must adopt to implement the standards. Instead, we 
would require that each affected entity assess its own needs and 
devise, implement, and maintain appropriate privacy policies, 
procedures, and documentation to address its business requirements. How 
each privacy standard would be satisfied would be a business decision 
that each entity would have to make. This permits the privacy standards 
to establish a stable baseline, yet remain flexible enough to take 
advantage of developments and methods for protecting privacy that will 
evolve over time.
    Because the privacy standards would need to be implemented by all 
covered entities, from the smallest provider to the largest, multi-
state health plan, a single approach to implementing these standards 
would be neither economically feasible nor effective in safeguarding 
health information privacy. For example, in a small physician practice 
the office manager might be designated to serve as the privacy official 
as one of many duties (see proposed Sec. 164.518(a)) whereas at a large 
health plan, the privacy official may constitute a full time position 
and have the regular support and advice of a privacy staff or board.
    In taking this approach, we intend to strike a balance between the 
need to maintain the confidentiality of protected health information 
and the economic cost of doing so. Health care entities must consider 
both aspects in devising their solutions. This approach is similar to 
the approach we proposed in the Notice of Proposed Rulemaking for the 
administrative simplification security and electronic signature 
standards.

[[Page 60023]]

3. Use and Disclosure for Treatment, Payment, and Health Care 
Operations  (Sec. 164.506(a))
    We are proposing that, subject to limited exceptions for 
psychotherapy notes and research information unrelated to treatment 
discussed below, a covered entity be permitted to use or disclose 
protected health information without individual authorization for 
treatment, payment or health care operations.
    We are not proposing to require individual authorizations of uses 
and disclosures for health care and related purposes, although such 
authorizations are routinely gathered today as a condition of obtaining 
health care or enrolling in a health plan. Although many current 
disclosures of health information are made pursuant to individual 
authorizations, these authorizations provide individuals with little 
actual control over their health information. When an individual is 
required to sign a blanket authorization at the point of receiving care 
or enrolling for coverage, that consent is often not voluntary because 
the individual must sign the form as a condition of treatment or 
payment for treatment. Individuals are also often asked to sign broad 
authorizations but are provided little or no information about how 
their health information would be or will in fact be used. Individuals 
cannot make a truly informed decision without knowing all the possible 
uses, disclosures and re-disclosures to which their information will be 
subject. In addition, since the authorization usually precedes creation 
of the record, the individual cannot predict all the information the 
record could contain and therefore cannot make an informed decision as 
to what would be released.
    Our proposal is intended to make the exchange of protected health 
information relatively easy for health care purposes and more difficult 
for purposes other than health care. For individuals, health care 
treatment and payment are the core functions of the health care system. 
This is what they expect their health information will be used for when 
they seek medical care and present their proof of insurance to the 
provider. Consistent with this expectation, we considered requiring a 
separate individual authorization for every use or disclosure of 
information but rejected such an approach because it would not be 
realistic in an increasingly integrated health care system. For 
example, a requirement for separate patient authorization for each 
routine referral could impair care, by delaying consultation and 
referral as well as payment.
    We therefore propose that covered entities be permitted to use and 
disclose protected health information without individual authorization 
for treatment and payment purposes, and for related purposes that we 
have defined as health care operations. For example, providers could 
maintain and refer to a medical record, disclose information to other 
providers or persons as necessary for consultation about diagnosis or 
treatment, and disclose information as part of referrals to other 
providers. Providers also could use a patient's protected health 
information for payment purposes such as submitting a claim to a payer. 
In addition, providers could use a patient's protected health 
information for health care operations, such as use for an internal 
quality oversight review. We would note that, in the case of an 
individual where the provider has agreed to restrictions on use or 
disclosure of the patient's protected health information, the provider 
would be bound by such restrictions as provided in Sec. 164.506(c).
    We also propose to prohibit covered entities from seeking 
individual authorization for uses and disclosures for treatment, 
payment and health care operations unless required by State or other 
applicable law. As discussed above in section II.C, such authorizations 
could not provide meaningful privacy protections or individual control 
and could in fact cultivate in individuals erroneous understandings of 
their rights and protections.
    The general approach that we are proposing is not new. Some 
existing State health confidentiality laws permit disclosures without 
individual authorization to other health care providers treating the 
individual, and the Uniform Health-Care Information Act permits 
disclosure ``to a person who is providing health-care to the patient'' 
(9 Part I, U.L.A. 475, 2-104 (1988 and Supp. 1998)). We believe that 
this approach would be the most realistic way to protect individual 
confidentiality in an increasingly data-driven, electronic and 
integrated health care system. We recognize, however, that particularly 
given the limited scope of the authority that we have under this 
proposed rule to reach some significant actors in the health care 
system, that other approaches could be of interest. We invite comments 
on whether other approaches to protecting individuals' health 
information would be more effective.
4. Minimum Necessary Use and Disclosure (Sec. 164.506(b))
    We propose that, except as discussed below, a covered entity must 
make all reasonable efforts not to use or disclose more than the 
minimum amount of protected health information necessary to accomplish 
the intended purpose of the use or disclosure, taking into 
consideration technological limitations.
    Under this proposal, covered entities generally would be required 
to establish policies and procedures to limit the amount of protected 
health care information used or disclosed to the minimum amount 
necessary to meet the purpose of the use or disclosure, and to limit 
access to protected health information only to those people who need 
access to the information to accomplish the use or disclosure. With 
respect to use, if an entity consists of several different components, 
the entity would be required to create barriers between components so 
that information is not used inappropriately. The same principle 
applies to disclosures.
    A ``minimum necessary'' determination would need to be consistent 
with and directly related to the purpose of the use or disclosure and 
take into consideration the ability of a covered entity to delimit the 
amount of information used or disclosed and the relative burden imposed 
on the entity. The proposed minimum necessary requirement is based on a 
reasonableness standard: covered entities would be required to make 
reasonable efforts and to incur reasonable expense to limit the use and 
disclosure of protected health information as provided in this section.
    In our discussions of the minimum necessary requirement, we 
considered whether or not this should apply to all entities and whether 
or not it should be applied to all protected health information. We 
decided that the principle of minimum necessary disclosure is critical 
to the protection of privacy and that because small entities represent 
83 percent of the health care industry, we would not exempt them from 
this provision without undermining its effectiveness.
    We understand that the requirements outlined in this section do not 
create a bright line test for determining the minimum necessary amount 
of protected health information appropriate for most uses or 
disclosures. Because of this lack of precision, we considered 
eliminating the requirement altogether. We also considered merely 
requiring covered entities to address the concept within their internal 
privacy

[[Page 60024]]

procedures, with no further guidance as to how each covered entity 
would address the issue. These approaches were rejected because 
minimizing both the amount of protected health information used and 
disclosed within the health care system and the number of persons who 
have access to such information is vital if we are to successfully 
enhance the confidentiality of people's personal health information. We 
invite comments on the approach that we have adopted and on alternative 
methods of implementing the minimum necessary principle.
5. Right To Restrict Uses and Disclosures  (Sec. 164.506(c))
    We propose to permit in Sec. 164.506(c) that individuals be able to 
request that a covered entity restrict further uses and disclosures of 
protected health information for treatment, payment, or health care 
operations, and if the covered entity agrees to the requested 
restrictions, the covered entity could not make uses or disclosures for 
treatment, payment or health care operations that are inconsistent with 
such restrictions, unless such uses or disclosures are mandated by law. 
This provision would not apply to health care provided to an individual 
on an emergency basis.
    We should note that there is nothing in this proposed rule that 
would require a covered entity to agree to a request to restrict, or to 
treat or provide coverage to an individual requesting a restriction 
under this provision. Covered entities who do not wish to, or due to 
contractual obligations cannot, restrict further use or disclosure are 
not obligated to agree to a request under this provision.
    We considered providing individuals substantially more control over 
their protected health information by requiring all covered entities to 
attempt to accommodate any restrictions on use and disclosure requested 
by patients. We rejected this option as unworkable. While industry 
groups have developed principles for requiring patient authorizations, 
we have not found widely accepted standards for implementing patient 
restrictions on uses or disclosures. Restrictions on information use or 
disclosure contained in patient consent forms are sometimes ignored 
because they may not be read or are lost in files. Thus, it seems 
unlikely that a requested restriction could successfully follow a 
patient's information through the health care system--from treatment to 
payment, through numerous operations, and potentially through certain 
permissible disclosures. Instead we would limit the provision to 
restrictions that have been agreed to by the covered entity.
    We recognize that the approach that we are proposing could be 
difficult because of the systems limitations described above. However, 
we believe that the limited right for patients proposed in this 
proposed rule can be implemented because it only applies in instances 
in which the covered entity agrees to the restrictions. We assume that 
covered entities would not agree to restrictions that they are unable 
to implement.
    We considered limiting the rights under this provision to patients 
who pay for their own health care (or for whom no payment was made by a 
health plan). Individuals and providers that engage in self-pay 
transactions have minimal effect on the rights or responsibilities or 
payers or other providers, and so there would be few instances when a 
restriction agreed to in such a situation would have negative 
implications for the interests of other health care actors. Limiting 
the right to restrict to self-pay patients also would reduce the number 
of requests that would be made under this provision. We rejected this 
approach, however, because the desire to restrict further uses and 
disclosures arises in many instances other than self-pay situations. 
For example, a patient could not want his or her records shared with a 
particular physician because that physician is a family friend. Or an 
individual could be seeking a second opinion and may not want his or 
her treating physician consulted. Individuals have a legitimate 
interest in restricting disclosures in these situations. We solicit 
comment on the appropriateness of limiting this provision to instances 
in which no health plan payment is made on behalf of the individual.
6. Application to Business Partners  (Sec. 164.506(e))
    In Sec. 164.506(e), we propose to require covered entities to take 
specific steps to ensure that protected health information disclosed to 
a business partner remains protected. We intend these provisions to 
allow customary business relationships in the health care industry to 
continue while providing privacy protections to the information shared 
in these relationships. Business partners would not be permitted to use 
or disclose protected health information in ways that would not be 
permitted of the covered entity itself under these rules.
    Other than for purposes of consultation or referral for treatment, 
we would allow covered entities to disclose protected health 
information to business partners only pursuant to a written contract 
that would, among other specified provisions, limit the business 
partner's uses and disclosures of protected health information to those 
permitted by the contract, and would impose certain security, 
inspection and reporting requirements on the business partner. We would 
hold the covered entity responsible for certain violations of this 
proposed rule made by their business partners, and require assignment 
of responsibilities when a covered entity acts as a business partner of 
another covered entity.
    Under this proposed rule, a business partner would be acting on 
behalf of a covered entity, and we propose that its use or disclosure 
of protected health information be limited to the same extent that the 
covered entity for whom they are acting would be limited. Thus, a 
business partner could have no more authority to use or disclose 
protected health information than that possessed by the covered entity 
from which the business partner received the information. We would note 
that a business partner's authority to use and disclose protected 
health information could be further restricted by its contract with a 
covered entity, as described below.
    We are not proposing to require the business partners of covered 
entities to develop and distribute a notice of information practices, 
as provided in proposed Sec. 164.512. A business partner would, 
however, be bound by the terms of the notice of the covered entity from 
which it obtains protected health information. See proposed 
Sec. 164.506(e). We are proposing this approach so that individuals 
could rely on the notices that they receive from the covered entities 
to which they disclose protected health information. If the business 
partners of a covered entity were able to make wider use or make more 
disclosures than the covered entity, the patients or enrollees of the 
covered entity would have difficulty knowing how their information was 
being used and to whom it was being disclosed.
    We are also proposing that a business partner's use and disclosure 
of protected health information be limited by the terms of the business 
partner's contractual agreement with the covered entity. We propose 
that a contract between a covered entity and a business partner could 
not grant the business partner authority to make uses or disclosures of 
protected health information that the covered entity itself would not 
have the authority to make. The contract between a covered entity and a 
business partner could further limit the business partner's authority 
to

[[Page 60025]]

use or disclose protected health information as agreed to by the 
parties. Further, the business partner would have to apply the same 
limitations to its subcontractors (or persons with similar 
arrangements) who assist with or carry out the business partner's 
activities.
    To help ensure that the uses and disclosures of business partners 
are limited to those recognized as appropriate by the covered entities 
from whom they receive protected health information, subject to the 
exception discussed below, we are proposing that covered entities be 
prohibited from disclosing protected health information to a business 
partner unless the covered entity has entered into a written contract 
with the business partner that meets the requirements of this 
subsection. See proposed Sec. 164.506(e)(2)(i).
    The contract requirement that we are proposing would permit covered 
entities to exercise control over their business partners' activities 
and provides documentation of the relationship between the parties, 
particularly the scope of the uses and disclosures of protected health 
information that business partners could make. The presence of a 
contract also would formalize the relationship, better assuring that 
key questions such as security, scope of use and disclosure, and access 
by subject individuals are adequately addressed and that the roles of 
the respective parties are clarified. Finally, a contract can bind the 
business partner to return any protected health information from the 
covered entity when the relationship is terminated.
    In lieu of a contracting requirement, we considered imposing only 
affirmative duties on covered entities to ensure that their 
relationships with business partners conformed to the standards 
discussed in the previous paragraph. Such an approach could be 
considered less burdensome and restrictive, because we would be leaving 
it to the parties to determine how to make the standards effective. We 
rejected this approach primarily because we believe that in the vast 
majority of cases, the only way that the parties could establish a 
relationship with these terms would be through contract. We also 
determined that the value of making the terms explicit through a 
written contract would better enable the parties to know their roles 
and responsibilities, as well as better enable the Secretary to 
exercise her oversight role. In addition, we understand that most 
covered entities already enter into contracts in these situations and 
therefore this proposal would not disturb general business practice. We 
invite comment on whether there are other contractual or non-
contractual approaches that would afford an adequate level of 
protection to individuals' protected health information. We also invite 
comment on the specific provisions and terms of the proposed approach.
    We are proposing one exception to the contracting requirement: when 
a covered entity consults with or makes a referral to another covered 
entity for the treatment of an individual, we would propose that the 
sharing of protected health information pursuant to that consultation 
or referral not be subject to the contracting requirement described 
above. See proposed Sec. 164.506(e)(1)(i). Unlike most business partner 
relationships, which involve the systematic sharing of protected health 
information under a business relationship, consultation and referrals 
for treatment occur on a more informal basis among peers, and are 
specific to a particular individual. Such exchanges of information for 
treatment also appear to be less likely to raise concerns about further 
impermissible use or disclosure, because providers receiving such 
information are unlikely to have a commercial or other interest in 
using or disclosing the information. We invite comment on the 
appropriateness of this exception, and whether there are additional 
exceptions that should be included in the final regulation.
    We note that covered health care providers receiving protected 
health information for consultation or referral purposes would still be 
subject to this rule, and could not use or disclose such protected 
health information for a purpose other than the purpose for which it 
was received (i.e., the consultation or referral). Further, we note 
that providers making disclosures for consultations or referrals should 
be careful to inform the receiving provider of any special limitations 
or conditions to which the disclosing provider has agreed to impose 
(e.g., the disclosing provider has provided notice to its patients that 
it will not make disclosures for research).
    We are proposing that covered entities be accountable for the uses 
and disclosures of protected health information by their business 
partners. A covered entity would be in violation of this rule if the 
covered entity knew or reasonably should have known of a material 
breach of the contract by a business partner and it failed to take 
reasonable steps to cure the breach or terminate the contract. See 
proposed Sec. 164.506(e)(2)(iii). A covered entity that is aware of 
impermissible uses and disclosures by a business partner would be 
responsible for taking such steps as are necessary to prevent further 
improper use or disclosures and, to the extent practicable, for 
mitigating any harm caused by such violations. This would include, for 
example, requiring the business partner to retrieve inappropriately 
disclosed information (even if the business partner must pay for it) as 
a condition of continuing to do business with the covered entity. A 
covered entity that knows or should know of impermissible use of 
protected health information by its business partner and fails to take 
reasonable steps to end the breach would be in violation of this rule.
    We considered requiring covered entities to terminate relationships 
with business partners if the business partner committed a serious 
breach of contact terms required by this subpart or if the business 
partner exhibited a pattern or practice of behavior that resulted in 
repeated breaches of such terms. We rejected that approach because of 
the substantial disruptions in business relationships and customer 
service when terminations occur. We instead require the covered entity 
to take reasonable steps to end the breach and mitigate its effects. We 
would expect covered entities to terminate the arrangement if it 
becomes clear that a business partner cannot be relied upon to maintain 
the privacy of protected health information provided to it. We invite 
comments on our approach here and whether requiring automatic 
termination of business partner contracts would be warranted in any 
circumstances.
    We also considered imposing more strict liability on covered 
entities for the actions of their business partners, just as principals 
are strictly liable for the actions of their agents under common law. 
We decided, however, that this could impose too great a burden on 
covered entities, particularly small providers. We are aware that, in 
some cases, the business partner will be larger and more sophisticated 
with respect to information handling than the covered entity. Therefore 
we instead opted to propose that covered entities monitor use of 
protected health information by business partners, and be held 
responsible only when they knew or should have known of improper use of 
protected health information.
    Our intention in this section is to recognize the myriad of 
business relationships that currently exist and to ensure that when 
they involve the exchange of protected health information, the roles 
and responsibilities of the different parties with respect to the 
protected health

[[Page 60026]]

information are clear. We do not propose to fundamentally alter the 
types of business relationships that exist in the health care industry 
or the manner in which they function. We request comments on the extent 
to which our proposal would disturb existing contractual or other 
arrangements among covered entities and business partners.
7. Application to Information About Deceased Persons (Sec. 164.506(f))
    We are proposing that information otherwise protected by these 
regulations retain that protection for two years after the death of the 
subject of the information. The only exception that we are proposing is 
for uses and disclosures for research purposes.
    HIPAA includes no temporal limitations on the application of the 
privacy protections. Although we have the authority to protect 
individually identifiable health information maintained by a covered 
entity indefinitely, we are proposing that the requirements of this 
rule generally apply for only a limited period, as discussed below. In 
traditional privacy law, privacy interests, in the sense of the right 
to control use or disclosure of information about oneself, cease at 
death. However, good arguments exist in favor both of protecting and 
not protecting information about the deceased. Considering that one of 
the underlying purposes of health information confidentiality is to 
encourage a person seeking treatment to be frank in the interest of 
obtaining care, there is good reason for protecting information even 
after death. Federal agencies and others sometimes withhold sensitive 
information, such as health information, to protect the privacy of 
surviving family members. At the same time, perpetual confidentiality 
has serious drawbacks. If information is needed for legitimate 
purposes, the consent of a living person legally authorized to grant 
such consent must be obtained, and the further from the date of death, 
the more difficult it may be to identify the person. The administrative 
burden of perpetual protection may eventually outweigh the privacy 
interests served.
    While various State laws have been passed specifically addressing 
privacy of genetic information, there is currently no federal 
legislation that deals with these issues. We considered extending the 
two-year period for genetic and hereditary information, but were unable 
to construct criteria for protecting the possible privacy interests of 
living children without creating extensive burden for information 
holders and hampering health research. We invite comments on whether 
further action is needed in this area and what types of practical 
provisions may be appropriate to protect genetic and hereditary health 
information.
8. Uses and Disclosures With Individual Authorization (Sec. 164.508)
    Covered entities would be required to obtain individual 
authorization to use individually identifiable health information for 
purposes other than those allowed under the rule. Activities requiring 
authorization include, for example, marketing. Costs will be ongoing 
for staffing and administrative activities related to obtaining 
authorization from individuals.
    Our proposal is based on the precept that a combination of strict 
limits on how covered entities can use and disclose protected health 
information, adequate notice to individuals about how their information 
will be used, and guaranteeing individuals' rights to inspect, copy and 
amend their health records will provide patients with better privacy 
protection and more effective control over their information than 
alternative approaches to privacy protection.
    This section addresses the requirements that we are proposing when 
protected health information is disclosed pursuant to the individual's 
explicit authorization. The regulation would require that covered 
entities have authorization from individuals before using or disclosing 
their protected health information for any purpose not otherwise 
recognized by this regulation. Circumstances where an individual's 
protected health information could be used or disclosed without 
authorization are discussed in connection with proposed Secs. 164.510 
and 164.522 below.
    This section proposes different conditions governing such 
authorizations in two situations in which individuals commonly 
authorize covered entities to disclose information:
     Where the individual initiates the authorization because 
he or she wants a covered entity to disclose his or her record, and
     Where a covered entity asks an individual to authorize it 
to disclose or use information for purposes other than treatment, 
payment or health care operations.
    The requirements proposed in this section are not intended to 
interfere with normal uses and disclosures of information in the health 
care delivery or payment process, but only to allow control of uses 
extraneous to health care. The restrictions on disclosure that the 
regulation would apply to covered entities may mean that some existing 
uses and disclosures of information could take place only if the 
individual explicitly authorized them under this section.
    We considered requiring a uniform set of requirements for all 
authorizations, but concluded that it would be appropriate to treat 
authorizations initiated by the individual differently from 
authorizations sought by covered entities. There are fundamental 
differences, in the uses of information and in the relationships and 
understandings among the parties, in these two situations. When 
individuals initiate authorizations, they are more likely to understand 
the purpose of the release and to benefit themselves from the use or 
disclosure. When a covered entity asks the individual to authorize 
disclosure, we believe the entity should make clear what the 
information will be used for, what the individual's rights are, and how 
the covered entity would benefit from the requested disclosure.
    We are proposing several requirements that would have to be met in 
the authorization process when the individual has initiated the 
authorization. We understand that the requirements that we are imposing 
here would make it quite unlikely that an individual could actually 
initiate a completed authorization, because few individuals would know 
to include all of these elements in a request for information. In most 
instances, individuals authorize a use or disclosure by completing a 
form provided by a third party, either the ultimate recipient of the 
information (who may have a form authorizing them to obtain the records 
from the record holders) or a health care provider or health plan 
holding the records (who may have a form that documents a request for 
the release of records to a third party). For this reason, we do not 
believe that our proposal would create substantial new burdens on 
individuals or covered entities in cases when an individual is 
initiating an authorized release of information. We invite comment on 
whether we are placing new burdens on individuals or covered entities. 
We also invite comment on whether the approach that we have proposed 
provides sufficient protection to individuals who seek to have their 
protected health information used or disclosed.
    We are proposing that when covered entities initiate the 
authorization by asking individuals to authorize disclosure, the 
authorization be required to include all of the items required above as 
well as several additional items. We are proposing additional

[[Page 60027]]

requirements when covered entities initiate the request for 
authorization, because in many cases it could be the covered entity, 
and not the individual, that achieves the primary benefit of the 
disclosure. We considered permitting covered entities to request 
authorizations with only the basic features proposed for authorizations 
initiated by the individual, for the sake of simplicity and 
consistency. However, we believe that additional protections are 
merited when the entity that provides or pays for health care requests 
authorizations to avert possible coercion.
    We also acknowledge that there will be costs related to moving away 
from a blanket authorization system. These costs will be discussed more 
explicitly in the sections on allowable disclosures (both with and 
without authorization).
    Covered entities and third parties that wish to have information 
disclosed to them will prepare forms for individuals to use to 
authorize use or disclosure. A model authorization form is displayed in 
Appendix A to this proposed rule. We considered presenting separate 
model forms for the two different types of authorizations (initiated by 
the individual and not initiated by the individual). However, this 
approach could be subject to misuse and be confusing to covered 
entities and individuals, who may be unclear as to which form is 
appropriate in specific situations. The model in the appendix 
accordingly is a unitary model, which includes all of the requirements 
for both types of authorization. By following such a model, covered 
entities, particularly small entities, could avoid the legal and 
administrative expenses that would be necessary to develop an 
authorization form that complies with the rule's requirements. The 
proposed rule does not prevent entities from developing or modifying 
their own authorization forms. The alternative to providing this model 
was to simply state that an authorization would be required and allow 
entities to develop the authorization independently. While we would 
specify some information required in the authorization in this 
alternative, we would not give an actual form. This was considered to 
be an unnecessary burden for entities.
    Finally, we are proposing that an individual be permitted to revoke 
an authorization at any time except to the extent that action has been 
taken in reliance on the authorization. See proposed Sec. 164.508(e).
9. Uses and Disclosures Permitted Without Individual Authorization 
(Sec. 164.510)
    This section describes uses and disclosures of protected health 
information that covered entities could make for purposes other than 
treatment, payment, and health care operations without individual 
authorization, and the conditions under which such uses and disclosures 
could be made. We propose to allow covered entities to use or disclose 
protected health information without individual authorization for such 
purposes if the use or disclosure would comply with the applicable 
requirements of this section.
    Covered entities could need to reevaluate and modify their 
operating procedures to comply with the proposed rule's prohibition on 
disclosing individually identifiable health information without patient 
authorization for any purpose other than treatment, payment, health 
care operations, or those situations explicitly identified as 
permissible disclosures under this proposed rule. Many entities could 
already do this. Entities that do not do this would need to alter 
information management systems and implement administrative policies 
and procedures to prevent inappropriate disclosures. Entities would 
also have to determine whether or not an authorization is necessary for 
each disclosure beyond treatment, payment, and health care operations 
that is not explicitly defined as a permissible disclosure under this 
proposed rule. It should be noted that the minimum necessary principle 
is an important component of the costs related to any disclosure. We 
expect that there would be significant initial and ongoing costs.
    If an entity chooses to disclose protected health information 
without authorization from individuals, there would be a number of new 
provisions that it would have to comply with. For example, if a 
disclosure is to researchers outside of the organization, the entity 
must obtain written documentation indicating that the research has been 
approved by an institutional review board (IRB) or equivalent process 
by a privacy board. This requirement is associated with ongoing 
administrative costs. We note that any such costs are optional unless 
other requirements (state laws, mandatory reporting systems, etc.) 
mandate these disclosures. In order to minimize the burden of these 
costs for mandatory disclosures, we have tried to apply as few business 
partner requirements as possible in areas where these mandatory 
disclosures are possible. However, in cases where the disclosure is 
optional, entities would have higher costs if they choose to use these 
disclosures. We expect that entities would consider these costs before 
making any such disclosure and determine if the benefits to their 
business of disclosure are greater than the costs related to making the 
disclosure. Additionally, other than the new requirements for 
disclosures for research, most of the disclosures are simply 
recognizing current practices and would not require large new costs.
    We considered permitting uses and disclosures only where law 
affirmatively requires the covered entity to use or disclose protected 
health information. However, because the activities described below are 
so important to the population as a whole, we decided to permit a 
covered entity to use or disclose information to promote those 
activities even when such activities are not legally mandated. In some 
cases, however, we would permit a use or disclosure only when such use 
or disclosure is authorized by other law. The requirements for 
verification of legal authority are discussed in section II.G.3.
    Disclosures that are required by current law would only require 
minimal additional costs to entities. The only cost directly 
attributable to this proposed requirement would be the additional cost 
of noting these disclosures on the accounting of uses and disclosures.
    However, disclosures required by this proposed regulation should be 
considered new costs. These mandatory disclosures would be extremely 
rare. For example, we expect that the Department would limit the number 
of compliance audits conducted. In these cases, some of the more 
expensive activities, including the minimum necessary principle and 
determining whether or not to make the disclosure, would not be 
applicable.
    We would restrict the discussion of discretionary disclosures to 
the general principles behind such disclosures rather than a detailed 
description of each allowable disclosure. More elaborate discussion of 
options for individual classes of disclosures can be found in the 
preamble. These disclosures are optional disclosures and therefore, any 
costs related to making these disclosures would incur optional costs. 
We do not have a complete understanding of how often these disclosures 
are currently made, nor do we understand what procedures are currently 
in place. We also do not understand how often these disclosures would 
be made given the new costs associated with such disclosures. Note

[[Page 60028]]

that the degree of new costs imposed if an entity opts to use a 
disclosure varies dramatically depending on the type of disclosure. For 
example, a disclosure of directory information in a hospital would 
probably not involve significant additional costs, while research that 
is not subject to the common could would have significant new costs 
involved. These disclosures, and thus these costs, are optional under 
this proposed rule. While they may be mandated under other law, such 
mandated disclosures are already being made, so there would be no 
additional costs. In this case there are only marginal new costs 
related to these disclosures.
10. Clearinghouses and the Rights of Individuals
    The rights described below would apply with respect to protected 
health information held by health care providers and health plans. We 
are proposing that clearinghouses not be subject to all of these 
requirements. We believe that as business partners of covered plans and 
providers, clearinghouses would not usually initiate or maintain direct 
relationships with individuals. The contractual relationship between a 
clearinghouse (as a business partner) and a covered plan or provider 
would bind the clearinghouse to the notice of information practices 
developed by the plan or provider and it would include specific 
provisions regarding inspection, copying, amendment and correction. 
Therefore, we do not believe that clearinghouses should be required to 
provide a notice or provide access for inspection, copying, amendment 
or correction. We would require clearinghouses to provide an accounting 
of any disclosures for purposes other than treatment, payment and 
health care operations to individuals upon request. See proposed 
Sec. 164.515. It is our understanding that the vast majority of the 
clearinghouse function falls within the scope of treatment, payment, 
and health care operations and therefore we do not believe providing 
this important right to individuals would impose a significant burden 
on the industry. We invite comment on whether or not we should require 
clearinghouses to comply with all of the provisions of the individual 
rights section.
11. Rights and Procedures for a Written Notice of Information Practices  
(Sec. 164.512)
    We are proposing that individuals have a right to an adequate 
notice of the information practices of covered plans and providers. The 
notice would be intended to inform individuals about what is done with 
their protected health information and about any rights they may have 
with respect to that information. Federal agencies must adhere to a 
similar notice requirement pursuant to the Privacy Act of 1974 (5 
U.S.C. 552a(e)(3)).
    We are not proposing that business partners (including health care 
clearinghouses) be required to develop a notice of information 
practices because, under this proposed rule, they would be bound by the 
information practices of the health plan or health care provider with 
whom they are contracting.
    The rule requires covered entities to prepare and make available a 
notice that informs patients about their privacy rights and the 
entity's actions to protect privacy. Entities that do not already 
comply with the rule's requirements would incur one-time legal and 
administrative costs in preparing and making the notice available. In 
addition, plans would incur ongoing costs related to the dissemination 
of the notice at least once every three years, and all covered entities 
would have ongoing costs related to preparation of new notices as 
disclosure practices change, dissemination to new individuals who 
receive services, and requests for copies of the notice. Entities would 
also incur ongoing costs related to answering questions stemming from 
the notice. In addition to requiring a basic notice, we considered 
requiring a longer more detailed notice, that would be available to 
individuals on request. However, we decided that making information 
available on request, and letting the covered entity decide how best to 
provide such information, is a more balanced approach. We felt that it 
would be overly burdensome to all entities, especially small entities, 
to require two notices.
    We considered requiring covered plans or providers to obtain a 
signed copy of the notice form (or some other signed indication of 
receipt) when they give the form to individuals. There are advantages 
to including such a requirement. A signed acknowledgment would provide 
evidence that the notice form has been provided to the individual. 
Further, the request to the individual to formally acknowledge receipt 
would highlight the importance of the notice, providing additional 
encouragement for the individual to read it and ask questions about its 
content.
    We are concerned, however, that requiring a signed acknowledgment 
would significantly increase the administrative and paperwork burden of 
this provision. We also are unsure of the best way for health plans to 
obtain a signed acknowledgment because plans often do not have face-to-
face contact with enrollees. It may be possible to collect an 
acknowledgment at initial enrollment, for example by adding an 
additional acknowledgment to the enrollment form, but it is less clear 
how to obtain it when the form is revised. We solicit comment on 
whether we should require a signed acknowledgment. Comments that 
address the relative advantages and burdens of such a provision would 
be most useful. We also solicit comment on the best way to obtain 
signed acknowledgments from health plans if such a provision is 
included in the final rule. We also solicit comments on other 
strategies, not involving signed acknowledgments, to ensure that 
individuals are effectively informed about the information practices of 
covered plans or providers.
    We believe that the proposed rule appropriately balances a 
patient's need for information and assurances regarding privacy with 
the covered entities' need for flexibility in describing their 
operations and procedures to protect patient privacy. Instead of a 
model notice, we have included a sample notice to guide the development 
of notices. We felt that this would be an appropriate way to reduce the 
burden on all entities including those classified as small.
    In Sec. 164.512, we propose the categories of information that 
would be required in each notice of information practices, the specific 
types of information that would have to be included in each category, 
and general guidance as to the presentation of written materials. A 
sample notice is provided at Appendix A of this preamble.
    In a separate section of this proposed rule, we would require 
covered plans or providers to develop and document policies and 
procedures relating to use, disclosure, and access to protected health 
information. See proposed Sec. 164.520. We intend for the documentation 
of policies and procedures to be a tool for educating the entity's 
personnel about its policies and procedures. In addition, the 
documentation would be the primary source of information for the notice 
of information practices. We intend for the notice to be a tool for 
educating individuals served by the covered plan or provider about the 
information practices of that entity. The information contained in the 
notice would not be as comprehensive as the documentation, but rather 
would provide a clear and concise summary of relevant policies and 
procedures.

[[Page 60029]]

    We considered prescribing specific language that each covered plan 
or provider would include in its notice. The advantages of this 
approach would be that the recipient would get exactly the same 
information from each covered plan or provider in the same format, and 
that it would be convenient for covered plans or providers to use a 
uniform model notice.
    There are, however, several disadvantages to this approach. First, 
and most important, no model notice could fully capture the information 
practices of every covered plan or provider. Large entities would have 
different information practices than small entities. Some health care 
providers, for example academic teaching hospitals, may routinely 
disclose identifiable health information for research purposes. Other 
health care providers may rarely or never make such disclosures. To be 
useful to individuals, each entity's notice of information practices 
should reflect its unique privacy practices.
    Another disadvantage of prescribing specific language is that it 
would limit each covered plan or provider's ability to distinguish 
itself in the area of privacy protections. We believe that if 
information on privacy protections were readily available, individuals 
might compare and select plans or providers based on their information 
practices. In addition, a uniform model notice could easily become 
outdated. As new communication methods or technologies are introduced, 
the content of the notices might need to reflect those changes.
    In proposed Sec. 164.512, we would require each covered plan and 
provider to include in the notice an explanation of how it uses and 
discloses protected health information. The explanation must be 
provided in sufficient detail as to put the individual on notice of the 
uses and disclosures expected to be made of his or her protected health 
information. As explained above in section II.C.7, covered plans and 
providers may only use and disclose protected health information for 
purposes stated in this notice.
    We considered requiring the notice to include not only a discussion 
of the actual disclosure practices of the covered entity, but also a 
listing or discussion of all additional disclosures that are authorized 
by law. We considered this approach because, under this proposed rule, 
covered plans or providers would be permitted to change their 
information practices at any time, and therefore individuals would not 
be able to rely on the entity's current policies alone to understand 
how their protected health information may be used in the future. We 
recognize that in order to be fully informed, individuals need to 
understand when their information could be disclosed.
    We rejected this approach because we were concerned that a notice 
with such a large amount of information could be burdensome to both the 
individuals receiving the notices and the entities required to prepare 
and distribute them. There are a substantial number of required and 
permitted disclosures under State or other applicable law, and this 
rule generally would permit them to be made.
    Alternatively, we considered requiring that the notice include all 
of the types of permissible disclosures under this rule (e.g., public 
health, research, next-of-kin). We rejected that approach for two 
reasons. First, we felt that providing people with notice of the 
intended or likely disclosures of their protected health information 
was more useful than describing all of the potential types of 
disclosures. Second, in many States and localities, different laws may 
affect the permissible disclosures that an entity may make, in which 
case a notice only discussing permissible disclosures under the federal 
rule would be misleading. While it would be possible to require covered 
plans or providers to develop notices that discuss or list disclosures 
that would be permissible under this rule and other law, we were 
concerned that such a notice may be very complicated because of the 
need to discuss the interplay of federal, State or other law for each 
type of permissible disclosure. We invite comments on the best approach 
to provide most useful information to the individuals without 
overburdening either covered plans or providers or the recipients of 
the notices.
    In Sec. 164.520, we are proposing to require all covered entities 
to develop and document policies and procedures for the use of 
protected health information. The notice would simply summarize those 
documented policies and procedures and therefore would entail little 
additional burden.
    It is critical to the effectiveness of this proposed rule that 
individuals be given the notice often enough to remind them of their 
rights, but without overburdening covered plans or providers. We 
propose that all covered plans and providers would be required to make 
their notice available to any individual upon request, regardless of 
whether the requestor is already a patient or enrollee. We believe that 
broad availability would encourage individuals or organizations to 
compare the privacy practices of plans or providers to assist in making 
enrollment or treatment choices. We also propose additional 
distribution requirements for updating notices, which would be 
different for health plans and health care providers. The requirements 
for health plans and health care providers are different because we 
recognize that they have contact with individuals at different points 
in time in the health care system.
    We considered a variety of combinations of distribution practices 
for health plans and are proposing what we believe is the most 
reasonable approach. We would require health plans to distribute the 
notice by the effective date of the final rule, at enrollment, within 
60 days of a material change to the plan's information practices, and 
at least once every three years.
    We considered requiring health plans to post the notice either in 
addition to or instead of distribution. Because most individuals rarely 
visit the office of their health plan, we do not believe that this 
would be an effective means of communication. We also considered either 
requiring distribution of the notice more or less frequently than every 
three years. As compared to most health care providers, we believe that 
health plans often are larger and have existing administrative systems 
to cost effectively provide notification to individuals. Three years 
was chosen as a compromise between the importance of reminding 
individuals of their plans' information practices and the need to keep 
the burden on health plans to the minimum necessary to achieve this 
objective. We are soliciting comment on whether requiring a notice 
every three years is reasonable for health plans.
    We propose to require that covered health care providers provide a 
copy of the notice to every individual served at the time of first 
service delivery, that they post the notice in a clear and prominent 
location where it is reasonable to expect individuals seeking service 
from the provider to be able to read the notice, and that copies be 
available on-site for individuals to take with them. In addition, we 
propose to require that covered health care providers provide a copy of 
the notice to individuals they are currently serving at their first 
instances of service delivery within a year of the effective date of 
the final rule.
    We would not require providers to mail or otherwise disseminate 
their notices after giving the notice to individuals at the time of the 
first service delivery. Providers' patient lists may include 
individuals they have not

[[Page 60030]]

served in decades. It would be difficult for providers to distinguish 
between ``active'' patients, those who are seen rarely, and those who 
have moved to different providers. While some individuals would 
continue to be concerned with the information practices of providers 
who treated them in the distant past, overall the burden of an active 
distribution requirement would not be outweighed by improved individual 
control and privacy protection.
    If a provider wishes to make a material change in the information 
practices addressed in the notice, it would be required to revise its 
notice in advance. After making the revision, the provider would be 
required to post the new notice promptly. We believe that this approach 
creates the minimum burden for providers consistent with giving 
individuals a clear source of accurate information.
12. Rights and Procedures for Access for Inspection and Copying 
(Sec. 164.514)
    In Sec. 164.514, we are proposing that, with very limited 
exceptions, individuals have a right to inspect and copy protected 
health information about them maintained by a covered health plan or 
health care provider in a designated record set. Individuals would also 
have a right of access to protected health information in a designated 
record set that is maintained by a business partner of a covered plan 
or provider when such information is not a duplicate of the information 
held by the plan or provider, including when the business partner is 
the only holder of the information or when the business partner has 
materially altered the protected health information that has been 
provided to it.
    In Sec. 164.506(e), we are proposing that covered plans and 
providers include specific terms in their contract with each business 
partner. One of the required terms would be that the business partner 
must provide for inspection and copying of protected health information 
as provided in this section. Because our authority is limited by HIPAA 
to the covered entities, we must rely upon covered plans and providers 
to ensure that all of the necessary protected health information 
provided by the individual to the plan or provider is available for 
inspection and copying. We would require covered plans and providers to 
provide access to information held in the custody of a business partner 
when it is different from information maintained by the covered plan or 
provider. We identified two instances where this seemed appropriate: 
when the protected health information is only in the custody of a 
business partner and not in the custody of the covered plan or 
provider; and when protected health information has been materially 
altered by a business partner. We are soliciting comment on whether 
there are other instances where access should be provided to protected 
health information in the custody of a business partner.
    Other than in their capacity as business partners, we are not 
proposing to require clearinghouses to provide access for inspection 
and copying. As explained above in section II.C.5, clearinghouses would 
usually be business partners under this proposed rule and therefore 
they would be bound by the contract with the covered plan or provider. 
See proposed Sec. 164.506(e). We carefully considered whether to 
require clearinghouses to provide access for inspection and copying 
above and beyond their obligations as a business partner, but 
determined that the typical clearinghouse activities of translating 
record formats and batching transmissions do not involve setting up 
designated record sets on individuals. Although the data maintained by 
the clearinghouse is protected health information, it is normally not 
accessed by individual identifier and an individual's records could not 
be found except at great expense. In addition, although clearinghouses 
process protected health information and discover errors, they do not 
create the data and make no changes in the original data. They, 
instead, refer the errors back to the source for correction. Thus, 
individual access to clearinghouse records provides no new information 
to the individual but could impose a significant burden on the 
industry.
    We are proposing that covered plans and providers be required to 
provide access for as long as the entity maintains the protected health 
information. We considered requiring covered plans and providers to 
provide access for a specific period or defining a specific retention 
period. We rejected that approach because many laws and professional 
standards already designate specific retention periods and we did not 
want to create unnecessary confusion. In addition, we concluded that 
individuals should be permitted to have access for as long as the 
information is maintained by the covered plan or provider. We are 
soliciting comments on whether we should include a specific duration 
requirement in this proposed rule.
    Proposed Sec. 164.514 would permit denial of inspection and copying 
under very limited circumstances. The categories of denials would not 
be mandatory; the entity could always elect to provide all of the 
requested health information to the individual. For each request by an 
individual, the entity could provide all of the information requested 
or it could evaluate the requested information, consider the 
circumstances surrounding the individual's request, and make a 
determination as to whether that request should be granted or denied. 
We intend to create narrow exceptions to the stated rule of open access 
and we would expect covered plans and providers to employ these 
exceptions rarely, if at all.
    We considered whether entities should be permitted to deny access 
to information based on a number of factors. For more specific 
discussion of access denials, please refer to earlier preamble text. 
For the purposes of the economic impacts, it is important to note that 
these denials are optional and, therefore, any costs associated with 
utilizing these denials are optional.
    In Sec. 164.514(c) and (d), we are proposing that covered plans and 
providers be required to have procedures that enable individuals to 
exercise their rights to inspect and obtain a copy of protected health 
information as explained above.
    We considered whether this proposed rule should include detailed 
procedures governing a individual's request for inspection and copying. 
Because this proposed rule would affect such a wide range of entities, 
we concluded that it should only provide general guidelines and that 
each entity should have the discretion to develop procedures consistent 
with its own size, systems, and operations.
    In Sec. 164.514(d)(2), we are proposing that the covered plans and 
providers would take action upon the request as soon as possible but 
not later than 30 days following receipt of the request. We considered 
the possibility of not including a time limitation but rather imposing 
a ``reasonableness'' requirement on the covered plans or providers. We 
concluded that the individual is entitled to know when to expect a 
response. This is particularly important in the context of health 
information, where an individual could need access to his or her 
information in order to make decisions about care. Therefore, in order 
to determine what would be ``reasonable,'' we examined the time 
limitations provided in the Privacy Act, the Freedom of Information Act 
(FOIA), and several State laws.
    The Privacy Act requires that upon receipt of a request for 
amendment (not access), the agency would send an acknowledgment to the 
individual

[[Page 60031]]

within 10 working days. (5 U.S.C. 552a (d)(2)). We considered several 
options that included such an acknowledgment requirement. An 
acknowledgment would be valuable because it would assure the individual 
that their request was received. Despite the potential value of 
requiring an acknowledgment, we concluded that it could impose a 
significant administrative burden on some of the covered plans and 
providers. This proposed rule would cover a wide range of entities with 
varying capacities and therefore, we are reluctant to create 
requirements that would overwhelm smaller entities or interfere too 
much with procedures already in place. We would encourage plans and 
providers to have an acknowledgment procedure in place, but would not 
require it at this point. We are soliciting comment on whether this 
proposed rule should require such an acknowledgment.
    We also considered whether to include specific procedures governing 
``urgent'' or ``emergency'' requests. Such procedures would require 
covered plans and providers to respond in a shorter time frame. We 
recognize that circumstances could arise where an individual would 
request inspection and copying on an expedited basis and we encourage 
covered plans or providers to have procedures in place for handling 
such requests. We are not proposing additional regulatory time 
limitations to govern in those circumstances. The 30-day time 
limitation is intended to be an outside deadline, rather than an 
expectation. Rather, we would expect a plan or provider to always be 
attentive to the circumstances surrounding each request and respond in 
an appropriate time frame, not to exceed 30 days.
    Finally, we considered including a section governing when and how 
an entity could have an extension for responding to a request for 
inspection and copying. For example, the FOIA provides that an agency 
could request additional time to respond to a request if the agency 
needs to search for and collect the requested records from facilities 
that are separate from the office processing the request; to search 
for, collect, and appropriately examine a voluminous amount of separate 
and distinct records; and to consult with another entity or component 
having a substantial interest in the determination of the request. We 
determined that the criteria established in the FOIA are tailored to 
government information systems and therefore could not be appropriate 
for plans and providers covered by this proposed rule. Furthermore, we 
determined that the 30-day time period would be sufficient for 
responding to requests for inspection and copying and that extensions 
should not be necessary. We are soliciting comments on whether a 
structured extension procedure should be included in this proposed 
rule.
    In Sec. 164.514(d)(3), we are proposing that covered plans or 
providers be required to notify the individual of the decision to 
provide access and of any steps necessary to fulfill the request. In 
addition we propose that the entity provide the information requested 
in the form or format requested if it is readily producible in such 
form or format. Finally, if the covered plan or provider accepts an 
individual's request, it would be required to facilitate the process of 
inspection and copying.
    In proposed Sec. 164.514(d)(3)(iv), we would permit a covered plan 
or provider to charge a reasonable, cost-based fee for copying health 
information provided pursuant to this section. We considered whether we 
should follow the practice in the FOIA and include a structured fee 
schedule. We concluded that the FOIA was developed to reflect the 
relatively uniform government costs and that this proposed rule would 
apply to a broader range of entities. Depending on the size of the 
entity, copying costs could vary significantly. Therefore, we propose 
that the entity simply charge a reasonable, cost-based fee.
    In Sec. 164.514(d)(4), we propose that a covered plan or provider 
that denies an individual's request for inspection and copying in whole 
or in part be required to provide the individual with a written 
statement in plain language explaining the reason for the denial. The 
statement could include a direct reference to the section of the 
regulation relied upon for the denial, but the regulatory citation 
alone would not sufficiently explain the reason for the denial. The 
statement would need to include the name and number of the contact 
person or office within the entity who is responsible for receiving 
complaints. In addition, the statement would need to include 
information regarding the submission of a complaint with the Department 
pursuant to Sec. 164.522(b).
    We considered proposing that covered plans and providers provide a 
mechanism for appealing a denial of inspection and copying. We believe, 
however, that the requirement proposed in Sec. 164.518(d) that covered 
plans and providers have complaint procedures to address patient and 
enrollee privacy issues generally would allow the individual to raise 
the issue of a denial with the covered plan or provider. We would 
expect the complaint procedures to be scalable; for example, a large 
plan might develop a standard complaint process in each location where 
it operates whereas, a small practice might simply refer the original 
request and denial to the clinician in charge for review. We would 
encourage covered plans and providers to institute a system of appeals, 
but would not require it by regulation. In addition, the individual 
would be permitted to file a complaint with the Department pursuant to 
Sec. 164.522(b).
13. Rights and Procedures With Respect to an Accounting of Disclosures 
(Sec. 164.515)
    In this proposed rule, we propose that individuals have a right to 
receive an accounting of all instances where protected health 
information about them is disclosed by a covered entity for purposes 
other than treatment, payment, and health care operations, subject to 
certain time-limited exceptions for disclosures to law enforcement and 
oversight agencies as discussed below. Providing such an accounting 
would allow individuals to understand how their health information is 
shared beyond the basic purposes of treatment, payment and health care 
operations.
    We considered whether to require covered entities to account for 
all disclosures, including those for treatment, payment and health care 
operations. We rejected this approach because it would be burdensome 
and because it would not focus on the disclosures of most interest to 
individuals. Upon entering the health care system, individuals are 
generally aware that their information would be used and shared for the 
purpose of treatment, payment and health care operations. They have the 
greatest interest in an accounting of circumstances where the 
information was disclosed for other purposes that are less easy to 
anticipate. For example, an individual might not anticipate that his or 
her information would be shared with a university for a research 
project, or would be requested by a law enforcement agency.
    We are not proposing that covered entities include uses and 
disclosures for treatment, payment and health care operations in the 
accounting. We believe that it is appropriate for covered entities to 
monitor all uses and disclosures for treatment, payment and health care 
operations, and they would be required to do so for electronically 
maintained information by the Security Standard. However, we do not 
believe that covered entities should be required to provide an 
accounting of the uses and disclosures for treatment payment and health 
care operations.

[[Page 60032]]

    This proposed rule would not specify a particular form or format 
for the accounting. In order to satisfy the accounting requirement, a 
covered entity could elect to maintain a systematic log of disclosures 
or it could elect to rely upon detailed record keeping that would 
permit the entity to readily reconstruct the history when it receives a 
request from an individual. We would require that covered entities be 
able to respond to a request for accounting within a reasonable time 
period. In developing the form or format of the accounting, covered 
entities should adopt policies and procedures that would permit them to 
respond to requests within the 30-day time period in this proposed 
rule.
    We also considered whether or not the disclosure history should be 
a formal document that is constantly maintained or whether we should 
give more flexibility to entities in this regard. We decided that since 
our ultimate goal is that individuals have access to a disclosure 
history of their records upon request, it would be reasonable to 
require only that they be able to do this. We are not prescribing how 
they fulfill the requirement. We also believe that it is less 
burdensome to require that they be able to create a disclosure history 
than to require that they have a specific format for maintaining a 
disclosure history.
    We are proposing that the accounting include all disclosures for 
purposes other than treatment, payment, and health care operations, 
subject to certain exceptions for disclosures to law enforcement and 
oversight agencies, discussed below. This would also include 
disclosures that are authorized by the individual. The accounting would 
include the date of each disclosure; the name and address of the 
organization or person who received the protected health information; 
and a brief description of the information disclosed. For all 
disclosures that are authorized by the individual, we are proposing 
that the covered entity maintain a copy of the authorization form and 
make it available to the individual with the accounting.
    We considered whether the accounting of disclosures should include 
the name of the person who authorized the disclosure of information. 
The proposed Security Standard would require covered entities to have 
an audit mechanism in place to monitor access by employees. We 
concluded that it would be unnecessary and inappropriate to require the 
covered entity to include this additional information in the 
accounting. If the individual identifies an improper disclosure by an 
entity, he or she should hold the entity not the employee of the entity 
accountable. It is the responsibility of the entity to train its 
workforce about its policies and procedures for the disclosure of 
protected health information and to impose sanctions if such policies 
and procedures are violated.
14. Rights and Procedures for Amendment and Correction  (Sec. 164.516)
    This proposed rule would provide an individual with the right to 
request a covered plan or provider to amend or correct protected health 
information relating to the individual. A covered plan or provider 
would be required to accommodate requests with respect to any 
information that the covered plan or provider determines to be 
erroneous or incomplete, that was created by the plan or provider, and 
that would be available for inspection and copying under proposed 
Sec. 164.514.
    We are concerned about the burden that requests for amendment or 
correction could place on covered plans and providers and have tried to 
limit the process to those situations where amendment or correction 
would appear to be most important. We invite comment on whether our 
approach reasonably balances burden with adequately protecting 
individual interests.
    We propose to require a covered plan or provider to accommodate a 
request for amendment or correction if the plan or provider created the 
information in dispute. We considered requiring covered plans and 
providers to amend or correct any erroneous or incomplete information 
it maintains, regardless of whether it created the information. Under 
this approach, if the plan or provider did not create the information, 
then it would have been required to trace the information back to the 
original source to determine accuracy and completeness. We rejected 
this option because we concluded that it would not be appropriate to 
require the plan or provider that receives a request to be responsible 
for verifying the accuracy or completeness of information that it did 
not create. We also were concerned about the burden that would be 
imposed on covered plans and providers if they were required to trace 
the source of any erroneous or incomplete information transmitted to 
them.
    We would rely on a combination of three other requirements to 
ensure that protected health information remains as accurate as 
possible as it travels through the health care system. First, we are 
proposing that a covered plan or provider that makes an amendment or 
correction be required to notify any relevant persons, organizations, 
or other entities of the change or addition. Second, we are proposing 
that other covered plans or providers that receive such a notification 
be required to incorporate the necessary amendment or correction. 
Finally, we are proposing that covered plans or providers require their 
business partners who receive such notifications to incorporate any 
necessary amendments or corrections. See the discussion in section 
II.F.4. We are soliciting comments whether this approach would 
effectively ensure that amendments and corrections are communicated 
appropriately.
    We are proposing that covered plans and providers be required to 
accommodate requests for amendment or correction for as long as the 
entity maintains the protected health information. We considered 
requiring covered plans and providers to accommodate requests for a 
specific period or defining a specific retention period. We rejected 
that approach because many laws and professional standards already 
designate specific retention periods and we did not want to create 
confusion. In addition, we concluded that individuals should be 
permitted to request amendments or corrections for as long as the 
information is maintained by the covered plan or provider. We are 
soliciting comments on whether we should include a specific duration 
requirement in this proposed rule.
    In Sec. 164.516, we are proposing that covered plans and providers 
be required to have procedures that enable individuals to exercise 
their rights to request amendment or correction, including a means by 
which individuals could request amendment or correction of protected 
health information about them. We considered whether this proposed rule 
should include detailed procedures governing an individual's request. 
But as with the procedures for requesting inspection and copying, we 
are only providing a general requirement and permitting each plan or 
provider to develop procedures in accordance with its needs. Once the 
procedures are developed, the plan or provider would document them in 
accordance with section Sec. 164.520 and include a brief explanation in 
the notice that is provided to individuals pursuant to section 
Sec. 164.512.
    We are proposing that the covered plan or provider would take 
action on a request for amendment or correction as quickly as the 
circumstances require, but not later than 60 days following the

[[Page 60033]]

request. The justification for establishing a time limitation for 
amendment and correction is virtually identical to that provided for 
the time limitation for inspection and copying. We concluded that the 
entity should be provided with some additional flexibility in this 
context. Depending on the nature of the request, an amendment or 
correction could require significantly more time than a request for 
inspection and copying. If a covered plan or provider needed more than 
30 days to make a decision, we would encourage, but not require, it to 
send an acknowledgment of receipt to the individual including an 
explanation of the reasons for the delay and a date when the individual 
could expect a final decision.
    In Sec. 164.516(c)(3), we are proposing that, upon accepting an 
amendment or correction, the covered plan or provider would be required 
to make reasonable efforts to notify relevant persons, organizations, 
or other entities of the change or addition. An entity would be 
required to notify such persons that the individual identifies, or that 
the covered plan or provider identifies as (1) a recipient of the 
erroneous or incomplete information, and (2) a person who:
     Has relied upon that information to the detriment of the 
individual; or
     Is a person who could foreseeably rely on such erroneous 
or incomplete information to the detriment of the individual.
    We are concerned about the potential burden that this notification 
requirement would impose on covered plans and providers. We do not, 
however, anticipate that a significant number of requests would be 
submitted to any entity and therefore the need for such notifications 
would be rare. In addition, we determined that because health 
information can travel so quickly and efficiently in the modern health 
care system, the need for notification outweighed the potential burden. 
It is important to note that a reasonableness standard should be 
applied to the notification process--if the recipient has not relied 
upon the erroneous or incomplete information to the detriment of the 
individual or if it is not foreseeable that the recipient would do so, 
then it would not be reasonable for the covered plan or provider to 
incur the time and expense of notification. If, however, if the 
incorrect information is reasonably likely to be used to the detriment 
of the individual, the entity should make every effort to notify the 
recipients of the information of the changes as quickly as possible.
    We discussed a number of options regarding the notification of 
other entities. We considered only requiring that the entity provide 
the individual with a listing of who else could have received the 
information. This would place the burden of notification in the hands 
of the individual rather than the entity. Because individuals would not 
have the same contacts and relationship with other entities as the 
original covered entity, we decided that placing the burden on 
individuals would be more cumbersome for both individuals and the 
secondary entities receiving the requests. We also considered not 
including a notification requirement. However, this would mean that 
individuals would need to both figure out where the information had 
gone to and make separate requests for amendment or correction to every 
entity. This also appeared to be overly difficult. We believe that the 
option we are proposing is fair to both individuals and covered 
entities.
    In proposed Sec. 164.516(c)(4), we would require a covered plan or 
provider to provide the individual with a written statement in plain 
language of the reason for the denial and permit the individual to file 
a written statement of disagreement with the decision to deny the 
request.
    If the individual chooses to file a statement of disagreement, then 
the covered plan or provider must retain a copy of the statement with 
the protected health information in dispute. The covered plan or 
provider could require that the statement be a reasonable length, 
provided that the individual has reasonable opportunity to state the 
nature of the disagreement and offer his or her version of accurate and 
complete information. In all subsequent disclosures of the information 
requested to be amended or corrected, the covered plan or provider 
would be required to include a copy of its statement of the basis for 
denial and, if provided by the individual, a copy of his or her 
statement of disagreement. If the statement submitted by the individual 
is unreasonably long, the covered plan or provider could include a 
summary in subsequent disclosures which reasonably explains the basis 
of the individual's position. The covered plan or provider would also 
be permitted to provide a rebuttal to the individual's statement of 
disagreement and include the rebuttal statement in any subsequent 
disclosures.
    We considered requiring the covered plan or provider to provide a 
mechanism for appealing denials of amendment or correction but 
concluded that it would be too burdensome. We are soliciting comment on 
whether the approach we have adopted reasonably balances the burdens on 
covered plans or providers with the rights of individuals.
    If a covered plan or provider receives a notification of erroneous 
or incomplete protected health information as provided in proposed 
Sec. 164.516(d), we are proposing that the covered plan or provider or 
be required to make the necessary amendment or correction to protected 
health information in its custody that would be available for 
inspection and copying. This affirmative duty to incorporate amendments 
and corrections would be necessary to ensure that individuals' 
protected health information is as accurate and complete as possible as 
it travels through the health care system.
15. Administrative Requirements (Sec. 164.518)
    We propose that covered entities be required to implement five 
basic administrative requirements to safeguard protected health 
information: Designation of a privacy official, the provision of 
privacy training, establishment of safeguards, a complaint process, and 
establishment of sanctions. Implementation of these requirements would 
vary depending on a variety of different factors such as type of entity 
(e.g., provider or plan), size of entity (e.g., number of employees, 
number of patients), the level of automation within the entity (e.g., 
electronic medical records), and organization of the entity (e.g., 
existence of an office of information systems, affiliation with a 
medical school).
a. Designation of a Privacy Official (Sec. 164.518(a))
    In proposed Sec. 164.518(a), we would require covered entities to 
designate an employee or other person to serve as the official 
responsible for the development of policies and procedures for the use 
and disclosure of protected health information. The designation of an 
official would focus the responsibility for development of privacy 
policy.
    We considered whether covered entities should be required to 
designate a single official or an entire board. We concluded that a 
single official would better serve the purposes of focusing the 
responsibility and providing accountability within the entity. The 
implementation of this requirement would depend on the size of the 
entity. For example, a small physician's practice might designate the 
office manager as the privacy official, and he or she would assume this 
as one of his or her broader administrative responsibilities. A large 
entity might appoint a person whose sole

[[Page 60034]]

responsibility is privacy policy, and he or she might choose to convene 
a committee representing several different components of the entity to 
develop and implement privacy policy.
b. Training (Sec. 164.518(b))
    In proposed Sec. 164.518(b), we would require covered entities to 
provide training on the entities policies and procedures with respect 
to protected health information. Each entity would be required to 
provide initial training by the date on which this proposed rule 
becomes applicable. After that date, each covered entity would have to 
provide training to new members of the workforce within a reasonable 
time period after joining the entity. In addition, we are proposing 
that when a covered entity makes material changes in its privacy 
policies or procedures, it would be required to retrain those members 
of the workforce whose duties are directly affected by the change 
within a reasonable time of making the change.
    The entities would be required to train all members of the 
workforce (e.g., all employees, volunteers, trainees, and other persons 
under the direct control of all persons working on behalf of the 
covered entity on an unpaid basis who are not business partners) who 
are likely to have contact with protected health information.
    Upon completion of the training, the person would be required to 
sign a statement certifying that he or she received the privacy 
training and would honor all of the entity's privacy policies and 
procedures. Entities would determine the most effective means of 
communicating with their workforce. For example, in a small physician 
practice, the training requirement could be satisfied by providing each 
new member of the workforce with a copy of the practice's information 
policies and requiring members of the workforce to acknowledge that 
they have reviewed the policies. A large health plan could provide for 
a training program with live instruction, video presentations or 
interactive software programs. The small physician practice's solution 
would not protect the large plan's data, and the plan's solution would 
be neither economically feasible nor necessary for the small physician 
practice.
    At least once every three years after the initial training, covered 
entities would be required to have each member of the workforce sign a 
new statement certifying that he or she would honor all of the entity's 
privacy policies and procedures. The initial certification would be 
intended to make members of the workforce aware of their duty to adhere 
to the entity's policies and procedures. By requiring a recertification 
every three years, they would be reminded of this duty.
    We considered several different options for recertification. We 
considered proposing that members of the workforce be required to 
recertify every six months, but concluded that such a requirement would 
be too burdensome. We considered proposing that recertification be 
required annually consistent with the recommendations of The American 
Health Information Management Association (Brandt, Mary D., Release and 
Disclosure: Guidelines Regarding Maintenance and Disclosure of Health 
Information, 1997). We concluded that annual recertification could also 
impose a significant burden on covered entities.
    We also considered requiring that the covered entity provide 
``refresher'' training every three years in addition to the 
recertification. We concluded that our goals could be achieved by only 
requiring recertification once every three years, and retraining in the 
event of material changes in policy. We are soliciting comment on this 
approach.
c. Safeguards (Sec. 164.518(c))
    In proposed Sec. 164.518(c), we would require covered entities to 
put in place administrative, technical, and physical safeguards to 
protect against any reasonably anticipated threats or hazards to the 
privacy of the information, and unauthorized uses or disclosures of the 
information. We proposed similar requirements for certain electronic 
information in the Notice of Proposed Rulemaking entitled the Security 
and Electronic Signature Standards (HCFA-0049-P), which can be found at 
63 FR 43241. We are proposing parallel and consistent requirements for 
safeguarding the privacy of protected health information.
    i. Verification procedures.
    As noted in section II.E., for many permitted disclosures the 
covered entity would be responding to a request for disclosure of 
protected health information. For most categories of permitted 
disclosures, when the request for disclosure of protected health 
information is from a person with whom the covered entity does not 
routinely do business, we would require the covered entity to verify 
the identity of the requestor. In addition, for certain categories of 
disclosures, covered entities would also be required to verify the 
requestor's legal authority to make the request.
    Under Sec. 164.514, a covered entity would be required to give 
individuals access to protected health information about them (under 
most circumstances). The covered entity would also be required to take 
reasonable steps to verify the identity of the individual making the 
request for access. We do not propose to mandate particular 
identification requirements (e.g., drivers licence, photo ID, etc), but 
rather would leave this to the discretion of the covered entity.
    We considered specifying the type of documentation or proof that 
would be acceptable, but decided that the burden of such specific 
regulatory requirements on covered entities would be unnecessary. 
Therefore, we propose only a general requirement for reasonable 
verification of identity and legal authority.
d. Internal Complaint Process (Sec. 164.518(d))
    In proposed Sec. 164.518(d), we would require covered plans and 
providers to have some mechanism for receiving complaints from 
individuals regarding the covered plan's or provider's compliance with 
the requirements of this proposed rule. The covered plan or provider 
would be required to accept complaints about any aspect of their 
practices regarding protected health information. We would not require 
that the entity develop a formal appeals mechanism, nor that ``due 
process'' or any similar standard be applied. We would not require that 
covered entities respond in any particular manner or time frame. We are 
proposing two basic requirements for the complaint process. First, the 
covered plan or provider would be required to identify a contact person 
or office in the notice of information practices for receiving 
complaints. This person or office could either be responsible for 
handling the complaints or could put the individual in touch with the 
appropriate person within the entity to handle the particular 
complaint. See proposed Sec. 164.512. This person could, but would not 
have to be, the entity's privacy official. See proposed 
Sec. 164.518(a)(2). Second, the covered plan or provider would be 
required to maintain a record of the complaints that are filed and a 
brief explanation of the resolution, if any.
    We considered requiring covered plans and providers to provide a 
formal internal appeal mechanism, but rejected that option as too 
costly and burdensome for some entities. We also considered eliminating 
this requirement entirely, but rejected that option because a complaint 
process would give covered plans or providers a way to learn about 
potential problems with privacy policies or practices, or training

[[Page 60035]]

issues. We also hope that providing an avenue for covered plans or 
providers to address complaints would lead to increased consumer 
satisfaction. We believe this approach strikes a reasonable balance 
between allowing covered plans or providers flexibility and 
accomplishing the goal of promoting attention to improvement in privacy 
practices. If an individual and a covered plan or provider are able to 
resolve the individual's complaint, there could be no need for the 
individual to file a complaint with the Secretary under proposed 
Sec. 164.522(b). However, an individual has the right to file a 
complaint with the Secretary at any time. An individual could file a 
complaint with the Secretary before, during, after, or concurrent with 
filing a complaint with the covered plan or provider or without filing 
a complaint with the covered plan or provider.
    We are considering whether modifications of these complaint 
procedures for intelligence community agencies could be necessary to 
address the handling of classified information and solicit comment on 
the issue.
e. Sanctions (Sec. 164.518(e))
    In proposed Sec. 164.518(e), we would require all covered entities 
to develop and apply when appropriate sanctions for failure to comply 
with policies or procedures of the covered entity or with the 
requirements of this proposed rule. All members of the workforce who 
have regular contact with protected health information should be 
subject to sanctions, as would the entity's business partners. Covered 
entities would be required to develop and impose sanctions appropriate 
to the nature of the issue. The type of sanction applied would vary 
depending on factors such as the severity of the violation, whether the 
violation was intentional or unintentional, and whether the violation 
indicates a pattern or practice of improper use or disclosure of 
protected health information. Sanctions could range from a warning to 
termination.
    We considered specifying particular sanctions for particular kinds 
of violations of privacy policy, but rejected this approach for several 
reasons. First, the appropriate sanction would vary with the entity's 
particular policies. Because we cannot anticipate every kind of privacy 
policy in advance, we cannot predict the response that would be 
appropriate when that policy is violated. In addition, it is important 
to allow covered entities to develop the sanctions policies appropriate 
to their business and operations.
    We expect that sanctions would be more formally described and 
consistently carried out in larger, more sophisticated entities. 
Smaller, less sophisticated entities would be given more latitude and 
flexibility. For such smaller entities and less sophisticated entities, 
we would not expect a prescribed sanctions policy, but would expect 
that actions be taken if repeated instances of violations occur.
f. Sanctions (Sec. 164.518(f))
    We propose in Sec. 164.518(f) that covered entities be required to 
have procedures for mitigating, to the extent practicable, any 
deleterious effect of a use or disclosure of protected health 
information by their members of their workforce or business partners. 
With respect to business partners, we also propose that covered 
entities have an affirmative duty to take reasonable steps in response 
to breaches of contract terms.
16. Development and Documentation of Policies and Procedures  
(Sec. 164.520)
    In proposed Sec. 164.520, we would require covered entities to 
develop and document their policies and procedures for implementing the 
requirements of this proposed rule. This requirement is intended as a 
tool to facilitate covered entities' efforts to develop appropriate 
policies to implement this proposed rule, to ensure that the members of 
its workforce and business partners understand and carry out expected 
privacy practices, and to assist covered entities in developing a 
notice of information practices.
    The scale of the policies developed should be consistent with the 
size of the covered entity. For example, a smaller employer could 
develop policies restricting access to health plan information to one 
designated employee, empowering that employee to deny release of the 
information to corporate executives and managers unless required for 
health plan administration. Larger employers could have policies that 
include using contractors for any function that requires access to 
protected health information or requiring all reports they receive for 
plan administration to be de-identified unless individual authorization 
is obtained.
    We are proposing general guidelines for covered entities to develop 
and document their own policies and procedures. We considered a more 
uniform, prescriptive approach but concluded that a single approach 
would be neither effective in safeguarding protected health information 
nor appropriate given the vast differences among covered entities in 
size, business practices and level of sophistication. It is important 
that each covered entity's internal policies and procedures for 
implementing the requirements of this regulation are tailored to the 
nature and number of its business arrangements, the size of its patient 
population, its physical plant and computer system, the size and 
characteristics of its workforce, whether it has one or many locations, 
and similar factors. The internal policies and procedures appropriate 
for a clearinghouse would not be appropriate for a physician practice; 
the internal policies and procedures appropriate for a large, multi-
state health plan would not be appropriate for a smaller, local health 
plan.
    After evaluating the requirements of federal, State, or other 
applicable laws, covered entities should develop policies and 
procedures that are appropriate for their size, type, structure, and 
business arrangements. Once a covered plan or provider has developed 
and documented all of the policies and procedures as required in this 
section, it would have compiled all of the information needed to 
develop the notice of information practices required in Sec. 164.512. 
The notice is intended to include a clear and concise summary of many 
of the policies and procedures discussed in this section. Further, if 
an individual has any questions about the entity's privacy policies 
that are not addressed by the notice, a representative of the entity 
could easily refer to the documented policies and procedures for 
additional information.
    Before making a material change in a policy or procedure, the 
covered entity would, in most instances, be required to make the 
appropriate changes to the documentation required by this section 
before implementing the change. In addition, covered plans and 
providers would be required to revise their notice of information 
practices in advance. Where the covered entity determines that a 
compelling reason exists to take an action that is inconsistent with 
its documentation or notice before making the necessary changes, it 
could take such action if it documents the reasons supporting the 
action and makes the necessary changes within 30 days of taking such 
action.
    In an attempt to ensure that large entities develop coordinated and 
comprehensive policies and procedures as required by this section, we 
considered proposing that entities with annual receipts greater than $5

[[Page 60036]]

million \40\ be required to have a privacy board review and approve the 
documentation of policies and procedures. As originally conceived, the 
privacy board would only serve to review research protocols as 
described in Sec. 164.510(j). We believe that such a board could also 
serve as ``privacy experts'' for the covered entity and could review 
the entity's documented policies and procedures. In this capacity, the 
overriding objective of the board would be to foster development of up-
to-date, individualized policies that enable the organization to 
protect health information without unnecessarily interfering with the 
treatment and payment functions or business needs. This type of review 
is particularly important for large entities who would have to 
coordinate policies and procedures among a large staff, but smaller 
organizations would be encouraged, but not required, to take a similar 
approach (i.e., have a widely representative group participate in the 
development and/or review of the organization's internal privacy 
policies and the documentation thereof). We solicit comment on this 
proposal.
---------------------------------------------------------------------------

    \40\ The Small Business Administration defines small businesses 
in the health care field as those generating less than $5 million 
annually. Small businesses represent approximately 85% of health 
care entities.
---------------------------------------------------------------------------

    We also considered requiring the covered entity to make its 
documentation available to persons outside the entity upon request. We 
rejected this approach because covered entities should not be required 
to share their operating procedures with the public, or with their 
competitors.
    We recognize that the documentation requirement in this proposed 
rule would impose some paperwork burden on covered plans and providers. 
However, we believe that it is necessary to ensure that covered plans 
and providers establish privacy policies and procedures in advance of 
any requests for disclosure, authorization, or subject access. It is 
also necessary to ensure that covered entities and members of their 
workforce have a clear understanding of the permissible uses and 
disclosures of protected health information and their duty to protect 
the privacy of such information under specific circumstances.
17. Compliance and Enforcement
    The rules proposed below at Sec. 164.522 would establish several 
requirements designed to enable the Secretary to monitor and seek to 
ensure compliance with the provisions of this subpart. The general 
philosophy of this section is to provide a cooperative approach to 
obtaining compliance, including use of technical assistance and 
informal means to resolve disputes. However, in recognition of the fact 
that it would not always be possible to achieve compliance through 
cooperation, the section also would provide the Secretary with tools 
for carrying out her statutory mandate to achieve compliance.
    Proposed Sec. 164.522(a) would establish the principle that the 
Secretary would seek the cooperation of covered entities in obtaining 
compliance. Section 164.522(a)(2) provides that the Secretary could 
provide technical assistance to covered entities to help them come into 
compliance with this subpart. It is clearly in the interests of both 
the covered entities and the individuals they serve to minimize the 
costs of compliance with the privacy standards. To the extent that the 
Department could facilitate this by providing technical assistance, it 
would endeavor to do so.

V. Initial Regulatory Flexibility Analysis

A. Introduction

    Pursuant to the Regulatory Flexibility Act 5 U.S.C. 601 et. seq., 
HHS must prepare a regulatory flexibility analysis if the Secretary 
certifies that a proposed rule would have a significant economic impact 
on a substantial number of small entities.
    This analysis addresses six issues: (1) Reasons for promulgating 
the rule; (2) the proposed rule's objectives and legal basis; (3) the 
number and types of small entities affected by the proposed rule; (4) 
the specific activities and costs associated with compliance; (5) 
options that HHS considered to minimize the rule's economic burdens or 
increase its benefits for small entities; and (6) the relevant Federal 
rules that could duplicate, overlap, or conflict with the proposed 
rule. The following sections provide details on each of these issues.
Reasons for Promulgating the Rule
    This proposed rule is being promulgated primarily because we have 
been statutorily mandated to do so under section 264 of Public Law 104-
191. Additional information on the reasons for promulgating the rule 
can be found in earlier preamble discussions (section I.).
Objectives and Legal Basis
    This information can be found in earlier preamble discussions 
(section I.).
Relevant Federal Provisions
    This information can be found in earlier preamble discussions 
(section I.B.)

B. Economic Effects on Small Entities

1. Number and Types of Small Entities Affected
    The Small Business Administration defines small entities in the 
health care sector as those organizations with less than $5 million in 
annual revenues. \41\ Nonprofit organizations are also considered small 
entities; however, individuals and States are not included in the 
definition of a small entity. Similarly, small government jurisdictions 
with a population of less than 50,000 are considered small entities.
---------------------------------------------------------------------------

    \41\ We have used two different data sources for our estimates 
of the number of entities. In the regulatory impact analysis (RIA), 
we chose to use the same numbers as we used in other Administrative 
Simplification rules. In the regulatory flexibility analysis (RFA), 
we used the most recent data available from the Small Business 
Administration (SBA).
    We chose to use the Administrative Simplification estimates in 
the RIA because we wanted our analysis to be as consistent as 
possible with those regulations and also believe that because it is 
higher than the more recent SBA data, it was the more conservative 
data source.
    We chose to use the SBA data in the RFA because we wanted our 
analysis to be as consistent to SBA definitions as possible to give 
the greatest accuracy for the RFA purposes.
---------------------------------------------------------------------------

    Small health entities affected include: Nonprofit health plans, 
hospitals, and skilled nursing facilities (SNFs); small businesses 
providing health coverage; small physician practices; pharmacies; 
laboratories; and durable medical equipment (DME) suppliers; health 
care clearinghouses; billing companies; and vendors that supply 
software applications to health care entities.
    The U.S. Small Business Administration reports that as of 1996, 
there were 1,078,020 small health care establishments \42\ classified 
within the SIC codes we have designated (Table A).
---------------------------------------------------------------------------

    \42\ Establishments are the physical location where an 
enterprise conducts business. An entrprise may conduct business in 
more than one establishment.

[[Page 60037]]



                 Table A.--Number of Health Care Entities That Meet SBA Size Standards, 1996 \1\
----------------------------------------------------------------------------------------------------------------
                                                                        Total        Number of      Percent of
                                                                      Number of    Entities that   Entities that
     Standard Industrial Code (SIC)               Industry           Health Care   Meet SBA Size   Meet SBA Size
                                                                       Entities    Standards \2\   Standards \2\
----------------------------------------------------------------------------------------------------------------
5910...................................  Drug Stores & Proprietary        44,062          23,771            53.9
                                          Stores.
6320...................................  Accident & Health                 3,346             428            12.8
                                          Insurance & Medical
                                          Service Plans (Accident &
                                          Health Insurance and
                                          Hospital & Medical
                                          Service Plans).
8010...................................  Offices & Clinics of            188,508         171,750            91.1
                                          Doctors of Medicine.
8020...................................  Offices & Clinics of            113,965         113,141            99.3
                                          Dentists.
8030...................................  Offices & Clinics of              9,168           9,000            98.2
                                          Doctors of Osteopathy.
8040...................................  Offices & Clinics of Other       85,326          83,563            97.9
                                          Health Practitioners.
8050...................................  Nursing & Personal Care          24,246          11,736            48.4
                                          Facilities.
8060...................................  Hospitals.................        7,284             837            11.5
8070...................................  Medical & Dental                 15,354          12,322            80.3
                                          Laboratories.
8080...................................  Home Health Care Services.       16,218           9,238            57.0
8090...................................  Miscellaneous Health &           20,986          12,712            60.6
                                          Allied Services.
                                        ------------------------------------------------------------------------
N/A....................................  Total.....................      528,463         448,498            84.9
----------------------------------------------------------------------------------------------------------------
\1\ Source: Office of Advocacy, U.S. Small Business Administration, from data provided by the Bureau of the
  Census, Statistics of U.S. Businesses, 1996.
\2\ Less than $5,000,000 in annual revenue.

    These small businesses represent 83.8% of all health care entities 
we have examined.\43\ Small businesses represent a significant portion 
of the total number of health care entities but a small portion of the 
revenue stream for all health care entities. In 1996, the small 
businesses represented generated approximately $235 million in annual 
receipts, or 22.2% of the total revenue generated by small health care 
entities (Table B). \44\ The following sections provide estimates of 
the number of small health care entities that will be required to 
comply with the rule. We should note, however, that the SBA's published 
annual receipts of health care industries differs substantially from 
the National health expenditure data that the Health Care Finance 
Administration (HCFA) maintains. HCFA's data are generally considered 
more accurate because the data are validated by several sources.
---------------------------------------------------------------------------

    \43\ Office of Advocacy, U.S. Small Business Administration, 
from data provided by the Bureau of the Census, Statistics of U.S. 
Businesses, 1996.
    \44\ Op. cit. 1996

                           Table B.--Annual Receipts of Health Care Entities, 1996 \1\
----------------------------------------------------------------------------------------------------------------
                                                                                      Revenue       Percent of
                                                                                   generated by    total revenue
    Standard Industrial Code (SIC)              Industry           Total revenue  small entities   generated by
                                                                                        \2\       small entities
----------------------------------------------------------------------------------------------------------------
5910..................................  Drug Stores &                $91,701,331     $23,762,195            25.9
                                         Proprietary Stores.
6320..................................  Accident & Health            225,866,321         657,074             0.3
                                         Insurance & Medical
                                         Service Plans (Accident
                                         & Health Insurance and
                                         Hospital & Medical
                                         Service Plans).
8010..................................  Offices & Clinics of         186,598,097     102,355,549            54.9
                                         Doctors of Medicine.
8020..................................  Offices & Clinics of          46,131,244      44,811,866            97.1
                                         Dentists.
8030..................................  Offices & Clinics of           4,582,835       3,992,558            87.1
                                         Doctors Of Osteopathy.
8040..................................  Offices & Clinics of          25,053,745      21,891,338            87.4
                                         Other Health
                                         Practitioners.
                                        Other Health                  29,636,580      25,883,896            87.3
                                         Practitioners (8030 and
                                         8040).
8050..................................  Nursing & Personal Care       63,625,522      14,672,710            23.1
                                         Facilities.
8060..................................  Hospitals...............     343,314,509       2,021,845             0.6
8070..................................  Medical & Dental              16,543,625       4,976,094            30.1
                                         Laboratories.
8080..................................  Home Health Care              27,690,537       7,960,035            28.7
                                         Services.
8090..................................  Miscellaneous Health &        26,036,633       7,697,264            29.6
                                         Allied Services.

[[Page 60038]]

 
                                        Other Health Care             70,270,795      20,633,393            29.4
                                         Services
                                         (8070,8080,8090).
                                                                 -----------------------------------------------
N/A...................................  Total Receipts..........   1,057,144,399     234,798,528            22.2
----------------------------------------------------------------------------------------------------------------
\1\ Source: Office of Advocacy, U.S. Small Business Administration, from data provided by the Bureau of the
  Census, Statistics of U.S. Businesses, 1996.
\2\ The SBA defines a small business as those businesses with less than $5,000,000 in annual revenue. For
  consistency with the Regulation, we employ the term ``entity'' in place of ``business''.

    The Small Business Administration reports that approximately 80 
percent of the 15,000 medical laboratories and dental laboratories in 
the U.S. are small entities.\45\ Furthermore, based on HCFA data, we 
estimate that 98 percent of the 160,000 durable medical equipment 
suppliers in the U.S. are small entities. Over 90 percent of health 
practitioner offices are small businesses.\46\ Doctor offices (91%), 
dentist offices (99%), osteopathy (98%) and other health practitioner 
offices (98%) are primarily considered small businesses.
---------------------------------------------------------------------------

    \45\ Office of Advocacy, U.S. Small Business Administration, 
from data provided by the Bureau of the Census, Statistics of U.S. 
Businesses, 1996.
    \46\ Op.cit., 1996
---------------------------------------------------------------------------

    There are also a small number of hospitals, home health agencies, 
non-profit nursing facilities, and skilled nursing facilities that will 
be affected by the proposed rule. According to the American Hospital 
Association, there are approximately 3,131 nonprofit hospitals 
nationwide. Additionally, there are 2,788 nonprofit home health 
agencies in the U.S. The Health Care Finance Administration reports 
that there are 591 nonprofit nursing facilities and 4,280 nonprofit 
skilled nursing facilities.\47\
---------------------------------------------------------------------------

    \47\ Health Care Finance Administration, OSCAR
---------------------------------------------------------------------------

    While it is difficult to calculate the number of clearinghouses 
that meet the definition of a small business, we believe that a 
significant portion of the 80 health care clearinghouses that process 
health care claims in the U.S. have annual revenues of less than $5 
million annually.\48\ We believe that all of the 4,500 billing 
companies \49\ that provide administrative and billing services for 
physicians' offices have annual revenues below $5 million per year.
---------------------------------------------------------------------------

    \48\ Faulkner & Gray's Health Data Directory, 1999
    \49\ International Billing Association, 1999
---------------------------------------------------------------------------

    Some contractors that work with health care entities will be 
required to adopt policies and procedures to protect information. We do 
not expect that the additional burden placed on contractors will be 
significant. We have not estimated the effect of the proposed rule on 
these entities because we cannot reasonably anticipate the number or 
type of contracts affected by the proposed rule. We also do not know 
the extent to which contractors would be required to modify their 
policy practices as a result of the rule's implementation.
2. Activities and Costs Associated with Compliance
    For a summary of the basic activities that a small entity would 
need to do to comply with this rule, please refer to section III of the 
preamble. This discussion summarizes some of the specific activities 
that covered entities must undertake to comply with the proposed rule's 
provisions and options considered that would reduce the burden to small 
entities. In developing this proposed rule, we considered a variety of 
alternatives for minimizing the economic burden that it will create for 
small entities. We could not exempt small businesses from the entire 
proposed rule because they represent such a large and critical 
proportion of the health care industry (84 percent).
    The guiding principle in our considerations of how to address the 
burden on small entities has been to make provisions scalable. To the 
extent possible, we have allowed for entities to determine how 
extensively they will address certain issues. This ability to adapt 
provisions to minimize burden has been addressed in earlier preamble 
language and will be briefly discussed again in the following section.
    Before discussing specific provisions, it is important to note some 
of the broader questions that were addressed in formulating this 
proposed rule. We considered extending the compliance period for small 
entities but decided that because they represent such a large portion 
of the health care market, such an extension would be inappropriate. 
However, HIPAA does create an extended compliance time of 36 months for 
small plans. For all other time limit questions, we also considered 
giving small entities the same sort of extensions. For example, 
entities are required to either approve or deny a request to inspect 
and copy information within 20 days. We considered allowing small 
entities a longer response time. Rather than giving small entities 
extensions, we decided to establish time limits that we believe are 
reasonable for affected entities of all sizes, with the understanding 
that larger entities may not need as much time as they have been 
allocated in certain situations.
    While we considered the needs of small entities during our 
discussions of provisions for this proposed rule, we are highlighting 
the most significant discussions in the following sections:
    a. Scalability. Covered entities of all types and sizes would be 
required to comply with the proposed privacy standards outlined below. 
The proposed standards would not impose particular mechanisms or 
procedures that covered entities must adopt to implement the standards. 
Instead, we would require that each affected entity assess its own 
needs and devise, implement, and maintain appropriate privacy policies, 
procedures, and documentation to address its business requirements. How 
each privacy standard would be satisfied would be business decisions 
that each entity would have to make. This allows the privacy standards 
to establish a stable baseline, yet remain flexible enough to take 
advantage of developments and methods for protecting privacy that will 
evolve over time.
    Because the privacy standards would need to be implemented by all 
covered entities, from the smallest provider to the largest, multi-
state health plan, a single approach to implementing these standards 
would be neither economically feasible nor effective in safeguarding 
health information privacy. For example, in a small physician practice 
the office manager might be designated to serve as the privacy official 
as one of many duties (see proposed Sec. 164.518(a)) whereas at a large 
health plan, the privacy official may constitute a full time position 
and

[[Page 60039]]

have the regular support and advice of a privacy staff or board.
    In taking this approach, we intend to strike a balance between the 
need to maintain the confidentiality of protected health information 
and the economic cost of doing so. Health care entities must consider 
both aspects in devising their solutions. This approach is similar to 
the approach we proposed in the Notice of Proposed Rulemaking for the 
administrative simplification security and electronic signature 
standards.
    We decided to use this scaled approach to minimize the burden on 
all entities with an emphasis on small entities.
    b. Minimum necessary use and disclosure. The decisions called for 
in determining what would be the minimum necessary information to 
accomplish an allowable purpose should include both a respect for the 
privacy rights of the subjects of the medical record and the reasonable 
ability of covered entities to delimit the amount of individually 
identifiable health information in otherwise permitted uses and 
disclosures. For example, a large enterprise that makes frequent 
electronic disclosures of similar data would be expected to remove 
identifiers or to limit the data fields that are disclosed to fit the 
purpose of the disclosure. An individual physician's office would not 
be expected to have the same capabilities to limit the amount of 
information disclosed, although, in the cases of disclosures involving 
a small number of records, such an office could be expected to hide 
identifiers or to limit disclosures to certain pages of the medical 
record that are relevant to the purpose of the disclosure.
    We understand that the requirements outlined in this section do not 
create a bright line test for determining the minimum necessary amount 
of protected health information appropriate for most uses or 
disclosures. Because of this lack of precision, we considered 
eliminating the requirement altogether. We also considered merely 
requiring covered entities to address the concept within their internal 
privacy procedures, with no further guidance as to how each covered 
entity would address the issue. These approaches were rejected because 
minimizing both the amount of protected health information used and 
disclosed within the health care system and the number of persons who 
have access to such information is vital if we are to successfully 
enhance the confidentiality of people's personal health information. We 
invite comments on the approach that we have adopted and on alternative 
methods of implementing the minimum necessary principle.
    c. Right to restrict. We propose to permit in Sec. 164.506(c) that 
individuals be able to request that a covered entity restrict further 
uses and disclosures of protected health information for treatment, 
payment, or health care operations, and if the covered entity agrees to 
the requested restrictions, the covered entity may not make uses or 
disclosures for treatment, payment or health care operations that are 
inconsistent with such restrictions, unless such uses or disclosures 
are mandated by law. This provision would not apply to health care 
provided to an individual on an emergency basis.
    It should be noted that there is nothing in this proposed rule that 
requires a health care provider to agree to a request to restrict uses 
or disclosures for treatment, payment, or health care operations. 
Providers who do not wish to, or due to contractual obligations cannot, 
restrict further use or disclosure are not obligated to treat an 
individual making a request under this provision.
    If small entities view this proposed provision as overly 
burdensome, they would not have to provide treatment to individuals 
requesting restrictions. We considered requiring that providers conform 
to requests to restrict use or disclosures. We rejected this approach 
due to the potential ethical conflicts these restrictions could pose to 
health care professionals and the possible burden to providers. 
Providers comprise a large proportion of the small businesses covered 
under this proposed regulation.
    d. Creation of de-identified information. In this rule we are 
proposing that covered entities and their business partners be 
permitted to use protected health information to create de-identified 
health information. Covered entities would be permitted to further use 
and disclose such de-identified information in any way, provided that 
they do not disclose the key or other mechanism that would enable the 
information to be re-identified, and provided that they reasonably 
believe that such use or disclosure of de-identified information will 
not result in the use or disclosure of protected health information. 
This means that a covered entity could not disclose de-identified 
information to a person if the covered entity reasonably believes that 
the person would be able to re-identify some or all of that 
information, unless disclosure of protected health information to such 
person would be permitted under this proposed rule. In addition, a 
covered entity could not use or disclose the key to coded identifiers 
if this rule would not permit the use or disclosure of the identified 
information to which the key pertains. If a covered entity re-
identifies the de-identified information, it may only use or disclose 
the re-identified information consistent with these proposed rules, as 
if it were the original protected health information. See proposed 
Sec. 164.506(d)(1).
    As with other components of this proposed rule, removal of 
identifiers from data could be scaled. Small entities without the 
resources to determine at what point information is truly de-identified 
could remove the full list of possible identifiers listed in this 
regulation. Unless they have reason to believe that the information 
could still be linked to an individual, this proposed requirement would 
be fulfilled. However, larger, more sophisticated entities, could 
choose to determine independently what information needs to be removed.
    Furthermore, efforts to remove identifiers from information would 
be optional. If an entity believes that removing identifiers would be 
excessively burdensome, it could choose not to release the information 
or to obtain an authorization from individuals before releasing any 
information.
    e. Uses and disclosures with individual authorization. Covered 
entities must obtain individual authorization to use protected health 
information for purposes other than those allowed under the proposed 
rule. Activities requiring authorization would include, for example, 
marketing and eligibility determinations for health coverage or 
employment. Costs would be ongoing for staffing and administrative 
activities related to obtaining authorization from individuals.
    In establishing the requirement for covered entities to obtain 
patient authorization to use individually identifiable health 
information for purposes other than those allowed under the proposed 
rule, we decided to include in the proposed rule a model ``request for 
authorization.'' By following such a model, covered entities, 
particularly small entities, could avoid the legal and administrative 
expenses that would be necessary to develop an authorization form that 
complies with the proposed rule's standards. The proposed rule would 
not prevent entities from developing their own patient authorization 
forms or from modifying existing forms in a manner consistent with the 
model.

[[Page 60040]]

    The alternative to providing this model would be to state that an 
authorization would be required and allow entities to develop the 
authorization. We believe that providing no guidance in this area would 
have caused unnecessary difficulties and burdens for small entities.
    f. Uses and disclosures permitted without authorization. This 
proposed rule would not require any uses or authorizations other than 
to the subject individual and to the Secretary for compliance. If small 
entities believe that the costs of making such discretionary 
disclosures are considered too high, they could choose not to make such 
disclosures. We would allow all covered entities, but particularly 
small entities, to base their decisions about these disclosures on any 
criteria that they believe to be important. We expect that the 
additional costs related to these disclosures would be factored into 
their decisions.
    In cases where uses or disclosures without authorization are 
required by other law, we would attempt to minimize costs by not 
requiring application of the minimum necessary principle.
    g. Notice to individuals of rights and procedures. The proposed 
rule would require covered entities to prepare and make available a 
notice that informs patients about their privacy rights and the 
entity's actions to protect privacy. Entities that do not already 
comply with the proposed rule's requirements would incur one-time legal 
and administrative costs. In addition, plans would incur ongoing costs 
related to the dissemination of the notice at least once every three 
years, and all covered entities would have ongoing costs related to 
dissemination to new individuals requesting services and requests for 
copies of the notice. Entities would also incur ongoing costs related 
to answering questions that are associated with the notice.
    In discussing the requirement for covered entities to prepare and 
make available a notice regarding patient privacy rights and the 
entity's privacy practices, we considered exempting small businesses. 
Because this would exempt 84 percent of firms, we decided not to create 
this exemption. The second option would be to exempt extremely small 
entities. One discussion defined small entities as those with fewer 
than 10 employees. We decided that informing consumers of their privacy 
rights and of the activities of covered entities with which they 
conduct business was too important to exempt any entities.
    In addition to requiring a basic notice, we considered requiring a 
longer more detailed notice that would be available to individuals on 
request. However, we decided that making information available on 
request and allowing the covered entity to decide how best to provide 
such information represents a more balanced approach. We believe that 
it would be overly burdensome to all entities, especially small 
entities, to require two notices.
    We considered prescribing specific language that each covered plan 
or provider would include in its notice. The advantages of this 
approach would be that the recipient would receive exactly the same 
information from each covered plan or provider in the same format and 
that it would be convenient for covered entities to use a uniform model 
notice.
    There are, however, several disadvantages to this approach. First, 
and most importantly, no model notice could fully capture the 
information practices of every covered plan or provider. Large entities 
will have information practices different from those of small entities. 
Some health care providers, for example, academic teaching hospitals, 
might routinely disclose identifiable health information for research 
purposes. Other health care providers might rarely or never make such 
disclosures. To be useful to individuals, each entity's notice of 
information practices should reflect its unique privacy practices.
    Another disadvantage of prescribing specific language is that it 
would limit each covered plan or provider's ability to distinguish 
itself in the area of privacy protections. We believe that if 
information on privacy protections becomes readily available, 
individuals might compare and select plans or providers based on their 
information practices. In addition, a uniform model notice could easily 
become outdated. As new communication methods or technologies are 
introduced, the content of the notices might need to reflect those 
changes.
    We believe that the proposed rule appropriately balances a 
patient's need for information and assurances regarding privacy with 
the covered entities' need for flexibility in describing their 
operations and procedures to protect patient privacy. Instead of a 
model notice, we have included a sample notice to guide the development 
of notices. We believe that this is an appropriate way to reduce the 
burden on all entities including those classified as small.
    h. Administrative requirements for covered entities. We propose 
that covered entities be required to implement five basic 
administrative requirements to safeguard protected health information: 
designation of a privacy official, the provision of privacy training, 
establishment of safeguards, a complaint process, and establishment of 
sanctions. Implementation of these requirements would vary depending on 
a variety of different factors such as type of entity (e.g., provider 
or plan), size of entity (e.g., number of employees, number of 
patients), the level of automation within the entity (e.g., electronic 
medical records), and organization of the entity (e.g., existence of an 
office of information systems, affiliation with a medical school).
    In proposed Sec. 164.518(a), we would require covered plans and 
providers to designate a privacy official to be responsible for the 
development of policies for the use and disclosure of protected health 
information and for the supervision of personnel with respect to use 
and disclosure of protected health information. The designation of a 
privacy official would focus the responsibility for development of 
privacy policy.
    The implementation of this requirement would depend on the size of 
the entity. For example, a small physician's practice might designate 
the office manager as the privacy official, and he or she would assume 
this as one of his or her broader administrative responsibilities. A 
large entity might appoint an individual whose sole responsibility is 
privacy policy, and that individual could choose to convene a committee 
representing several different components of the entity to develop and 
implement privacy policy.
    In proposed Sec. 164.518(b), we would require covered entities to 
provide training on the their policies and procedures with respect to 
protected health information. Entities would determine the most 
effective means of communicating with their workforce. For example, in 
a small physician practice, the training requirement could be satisfied 
by providing each new member of the workforce with a copy of the 
practice's information policies and requiring members of the workforce 
to acknowledge that they have reviewed the policies. A large health 
plan could provide for a training program with live instruction, video 
presentations or interactive software programs. The small physician 
practice's solution would not protect the large plan's data, and the 
plan's solution would be neither economically feasible nor necessary 
for the small physician practice.
    In proposed Sec. 164.518(c), we would require covered entities to 
put in place

[[Page 60041]]

administrative, technical, and physical safeguards to protect against 
any reasonably anticipated threats or hazards to the privacy of the 
information, and unauthorized uses or disclosures of the information.
    In proposed Sec. 164.518(d), we would require covered plans and 
providers to have some mechanism for receiving complaints from 
individuals regarding the covered plan's or provider's compliance with 
the requirements of this proposed rule. We considered requiring covered 
plans and providers to provide a formal internal appeal mechanism, but 
rejected that option as too costly and burdensome for some entities. We 
also considered eliminating this requirement entirely, but rejected 
that option because a complaint process would give covered plans or 
providers a way to learn about potential problems with privacy policies 
or practices, or training issues. We also hope that providing an avenue 
for covered plans or providers to address complaints would lead to 
increased consumer satisfaction. We believe this approach strikes a 
reasonable balance between allowing covered plans or providers 
flexibility and accomplishing the goal of promoting attention to 
improvement in privacy practices.
    We expect that sanctions would be more formally described and 
consistently carried out in larger, more sophisticated entities. 
Smaller, less sophisticated entities would be given more latitude and 
flexibility. For such smaller entities and less sophisticated entities, 
we would not expect a prescribed sanctions policy, but would expect 
that actions be taken if repeated instances of violations occur. In 
proposed Sec. 164.518(e), we would require all covered entities to 
develop and apply when appropriate sanctions for failure to comply with 
policies or procedures of the covered entity or with the requirements 
of this proposed rule.
    i. Documentation requirements for covered entities. We are 
proposing that covered entities be required to document policies and 
procedures in several important areas. These areas would include use 
within the entity; informing business partners; disclosures with and 
without authorization; limitations on use and disclosure for self-pay; 
inspection and copying; amendment or correction; accounting for uses 
and disclosures; notice development, maintenance, and dissemination; 
sanctions; and complaint procedures. We considered whether formal 
documentation of these policies would be necessary. A key factor in 
making this decision was determining the burden on entities, 
particularly the burden on small entities. We also considered whether 
it would be reasonable to exempt very small entities from this 
provision. For example, entities with fewer than ten employees could be 
able to effectively communicate policies and procedures verbally. We 
decided that we needed to include all entities in the provision because 
these documentation requirements are intended as tools to educate the 
management, employees, and business partners about the consideration 
that should be given to protecting the privacy of health information.
3. The Burden on a Typical Small Business.
    We expect that small entities will face a cost burden as a result 
of complying with the proposed regulation. We estimate that the burden 
of developing privacy policies and procedures is lower in dollar terms 
for small businesses than for large businesses, but we recognize that 
the cost of implementing privacy provisions will be a larger burden to 
small entities as a proportion of total revenue. Due to these concerns, 
we rely on the principle of scalability stated in the proposed rule, 
and have based our cost estimates on the expectation that small 
entities will develop less expensive and less complex privacy measures 
than large entities.
    In many cases, we have specifically considered the impact that the 
proposed rule may have on solo practitioners or rural providers. Where 
these providers do not have large technical systems, it is possible 
that the regulation may not apply to small providers, or that small 
providers will not be required to change their business practices other 
than adhering to the basic requirements that they state their privacy 
policies and notify patients of their privacy rights. For both 
activities, the proposed regulation accounts for the activities and 
size of the practice. Scalability implies that in developing policies 
and procedures to comply with the proposed regulation, businesses 
should consider their basic functions and the amount of health 
information exchanged electronically. All covered entities must take 
appropriate steps to address privacy concerns, and in determining the 
scope and extent of their compliance activities, businesses should 
weigh the costs and benefits of alternative approaches and should scale 
their compliance activities to their structure, functions, and 
capabilities.
    Our analysis of the costs to small businesses is divided into three 
sections: (1) Initial start-up costs associated with development of 
privacy policy; (2) initial start-up costs associated with system 
change; and (3) ongoing costs, including notification of privacy 
policies.
    Overall, our analysis suggests that the average start-up cost of 
complying with the proposed rule is $396 per entity. This includes the 
cost of developing privacy policies and systems compliance changes 
(Table C). The ongoing costs of privacy compliance are approximately 
$337 per entity in the first year and $343 every year thereafter (Table 
D). The total cost of implementing initial and ongoing costs of the 
proposed regulation in the first year is $733 per entity. After the 
first year, the total compliance cost to the entity is $343 per year. 
We estimate that the relative average cost of initial compliance is 
approximately 0.12 percent of a small entity's annual expenditures in 
the first year. The relative average cost of ongoing privacy compliance 
is approximately 0.05 percent of a small entity's annual expenditures.
    Our cost calculations are based on several assumptions. The cost of 
developing privacy policies is based on figures from the regulatory 
impact analysis that accompanied the HIPAA National Provider Identifier 
(63 FR 25320). The cost of initial systems compliance is based on 
current assumptions about market behavior; including the assumption 
that a relatively small proportion of the total cost of system 
compliance (20%) will be absorbed by small covered entities. We 
evaluated the ongoing costs of an entity's privacy protection by 
calculating that privacy protection costs should be proportional to the 
number of patients served by the business. For example, the cost of 
notifying patients of privacy practices will be directly proportional 
to the number of patients served. We then multiplied the proportion of 
small entities by the total ongoing costs of privacy compliance.
Initial Costs
    Table C shows the results of our calculations of the cost of 
initial compliance. We calculated initial privacy policy costs separate 
from initial system compliance costs because we made different 
assumptions about the cost of each. To calculate initial privacy policy 
costs per small entity, we multiplied the estimated cost of developing 
privacy policies (per entity) by the number of establishments. We then 
averaged these costs and computed that the average cost of developing 
privacy policies is $334.31 per small entity. The average cost of 
implementing privacy policies is greater

[[Page 60042]]

than the $300 cost we assume most health care provider offices will 
pay, because we assume that small health plans, hospitals, and nursing 
and patient care services will spend between $500-$1,000 to implement 
privacy policies. Calculating the cost of system compliance per entity 
required us to estimate the percent of total system costs that each 
type of entity would incur. We used the $90 million figure (cited in 
the RIA) as the basis for distributing system compliance costs across 
various types of entities affected by the proposed rule. We estimated 
how this cost would be divided between small and large entities, and 
among plans, providers and clearinghouses.

                          Table C.--Annual Cost of Implementing Provisions of the Proposed Privacy Regulation In the First Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Initial costs                                  Ongoing costs                      Total costs
                                 -----------------------------------------------------------------------------------------------------------------------
                                                                                                       Annual
                                    Initial       Initial                               First year   amendment                     Total        Total
                                    privacy       system        Notice       Total        notice        and          Annual        annual       annual
            Industry                 policy     compliance   development    initial      issuance    correction     written       ongoing    initial and
                                     costs         cost       cost, per    compliance   costs for     cost to    authorization  cost in the    ongoing
                                  incurred by   incurred by     small      cost, per      small        small     cost to small  first year,  cost in the
                                     small         small        entity       small      entities,    entities,   entities, per   per small   first year,
                                   entities,     entities                  entity \2\   per small    per small    small entity     entity     per small
                                   per entity    \1\, per                                 entity       entity                                   entity
--------------------------------------------------entity------------------------------------------------------------------------------------------------
Drug Stores & Proprietary Stores         $300       $131.19       $59.40      $490.58      $118.26      $768.64       $102.55       $989.45    $1,480.03
 \3\............................
Accident & Health Insurance &           1,000      1,939.86       203.91     3,143.77       314.02       127.60         17.02        458.65     3,602.41
 Medical Service Plans \3\
 (Accident & Health Insurance
 and Hospital & Medical Service
 Plans).........................
Offices & Clinics Of Doctors Of           300         21.04        21.20       342.24        42.21       260.93         34.81        337.96       680.20
 Medicine.......................
Offices & Clinics Of Dentists...          300          7.43        13.25       320.68        26.39       163.11         21.76        211.26       531.94
Offices & Clinics Of Other                300         11.10        17.82       328.92        35.47       219.29         29.26        284.02       612.94
 Health Practitioners...........
Nursing & Personal Care                 1,500        117.15        49.63     1,666.79        98.82       610.88         81.50        791.20     2,457.99
 Facilities.....................
Hospitals.......................        1,500      7,362.22        79.65     8,941.87       158.59       980.36        130.80      1,269.75    10,211.62
Home Health Care Services.......          300         58.06        30.66       388.72        61.05       377.38         50.35        488.77       877.49
Other Health Care Services                300         19.83        10.84       330.68        21.59       133.47         17.81        172.87       503.55
 including Lab Services.........
                                 -----------------------------------------------------------------------------------------------------------------------
    Average Cost................       334.31         40.13        21.17       395.61        42.05       260.23         34.72        337.00      732.61
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The SBA defines small health care entities as those with annual revenue under $5,000,000.
\2\ Total Initial Compliance Cost includes policy implementation and systems compliance costs.
\3\ Includes some entities not covered by this regulation. Pharmacies are the only component of Drug Stores and Proprietary Stores covered by the
  regulation. Accident and workers compensation insurance are not covered by the regulation.


    Table D.--Annual Cost of Implementing Provisions of the Proposed Privacy Regulation, After the First Year
----------------------------------------------------------------------------------------------------------------
                                                                         Ongoing Costs
                                              ------------------------------------------------------------------
                                                               Annual
                                                  Annual     amendment                     Annual       Total
                                                  notice        and          Annual       ongoing       annual
                   Industry                      issuance    correction     written      costs for     ongoing
                                               costs after    cost to    authorization   paperwork    cost after
                                                the first      small     cost to small      and       the first
                                                year, per    entities,   entities, per   training,    year, per
                                                  small      per small    small entity   per small      small
                                                  entity       entity                      entity       entity
----------------------------------------------------------------------------------------------------------------
Drug Stores & Proprietary Stores \1\.........        73.26       768.64        102.55            20       964.45
Accident & Health Insurance & Medical Service       314.02       127.60         17.02            60       518.65
 Plans \2\ (Accident & Health Insurance and
 Hospital & Medical Service Plans)...........
Offices & Clinics Of Doctors Of Medicine.....        26.15       260.93         34.81            20       341.90
Offices & Clinics Of Dentists................        16.35       163.11         21.76            20       221.22
Offices & Clinics Of Other Health                    21.97       219.29         29.26            20       290.52
 Practitioners...............................
Nursing & Personal Care Facilities...........        61.22       610.88         81.50           100       853.59
Hospitals....................................        98.24       980.36        130.80           100     1,309.40
Home Health Care Services....................        37.82       377.38         50.35            20       485.54
Other Health Care Services including Lab             13.38       133.47         17.81            20       184.65
 Services....................................
                                              ------------------------------------------------------------------
    Average Cost.............................        26.16       260.23         34.72         22.28      343.39
----------------------------------------------------------------------------------------------------------------
\1\ The SBA defines small health care entities as those with annual revenue under $5,000,000.
\2\ Includes some entities not covered by this regulation. Pharmacies are the only component of Drug Stores and
  Proprietary Stores covered by the regulation. Accident and workers compensation insurance are not covered by
  the regulation.

    Our calculations regarding division of costs are based on two 
assumptions: (1) System costs are principally fixed costs associated 
with the purchase of hardware and software \50\; and (2) large entities 
will continue to invest more heavily in hardware and software 
expenditures than small entities. We estimate that 80 percent of the 
system costs will be born by large entities. The remaining 20 percent 
of total systems costs will be absorbed by small entities. To calculate 
the effect on small businesses, we multiplied the system compliance 
costs cited in the RIA by the proportion of the costs we expect small 
entities to incur (20 percent of total). We then multiplied the total 
cost of system compliance for small entities by the percentage of 
health care revenue by industry and calculated a cost per entity.
---------------------------------------------------------------------------

    \50\ We are not suggesting that these investments are 
exclusively computer-related. They may also include costs for 
personnel training, reorganization, and contract negotiations with 
outside entities.
---------------------------------------------------------------------------

    We used HCFA's estimate of total national health expenditures to 
calculate the percent of total health care business that is represented 
by types of health care entities. We calculated the proportion of 
business transacted by a type of health care entity (by SIC code) and 
multiplied this by the total expenditures ($1.084 billion total) \51\. 
National expenditure data is a useful measure for allocating system 
compliance costs for two reasons. Even though system compliance costs 
are primarily fixed costs, we assume that they bear some relationship 
to the size and level of the activity of the entity.

[[Page 60043]]

Similarly, national expenditures vary according to both size and level 
of activity. Second, in contrast to the annual receipts compiled by the 
Business Census Survey, national expenditure information compares its 
data to other sources in order to validate its results. Thus, we 
decided that the national expenditure data are a more reliable source 
of overall business activity for our purposes. Based on these 
assumptions, we believe that the total cost of system compliance for 
all small health care entities will be approximately 18 million. 
Dividing costs by the number of small entities suggests that the 
average cost of system compliance is $40.13 per entity.
---------------------------------------------------------------------------

    \51\ Health Care Finance Administration, 1996 http://
www.hcfa.gov/stats/nheoact/tables/t10.htm
_____________________________________-

 The cost of notice development is approximately $21 per small 
entity. We assume that many small providers will receive assistance 
developing their notice policies from professional associations. Thus, 
the overall cost of developing compliant notices is significant, but 
the cost per entity is small. The cost to small entities of developing 
notices is based on the proportion of expenditures generated by small 
entities. We recognize that this may not adequately capture the costs 
of developing a provider or plan's notice of their privacy policies, 
and invite comment on our approach.
    We added the per-entity cost of privacy policy implementation to 
the cost of systems compliance to determine the total average cost of 
start-up compliance. Our figures indicate that initial compliance will 
cost an average of $396 per small entity. These costs vary across 
entity type (Table C). For example, small hospitals have a much higher 
cost of compliance than the average cost for all small entities, 
whereas dentists' offices tend to have initial compliance costs that 
are lower than the average for small entities. Most small practitioner 
offices have low costs ($320 per dentist office), whereas small 
hospitals ($8,942 per entity) and small insurance companies have much 
higher costs ($3,144 per entity) than other health care entities.
    Finally, we attempted to estimate the impact of compliance costs on 
small entities by comparing the cost of complying with the proposed 
rule to an entity's annual expenditures (Table E). We computed the 
percent of small entity expenditures as a percent of national 
expenditures by calculating the proportion of small business receipts 
(from census data compiled for the SBA) that apply to segments of the 
health care market. Although we believe that the SBA data understates 
the amount of annual receipts, we assumed that the underestimates are 
consistent across all entities. Thus, although the dollar amounts 
reported by the SBA are incorrect, our assumption is that the 
proportion of small entity receipts relative to total annual receipts 
is correct.
    Applying the percent of small entity receipts to the national 
expenditure data allows us to estimate the percent of national 
expenditures represented by small entities. We then considered the 
total compliance cost (initial and ongoing cost) as a percent of small 
business expenditures. Our estimates suggest that the cost of complying 
with the proposed rule represent approximately 0.12 percent of total 
annual expenditures for a small health care entity in the first year. 
The relative cost of complying with the proposed rule is substantially 
lower in subsequent years, representing 0.04 percent of an entity's 
annual expenditures. The relative cost of complying with the proposed 
regulation cost of complying is highest for small health insurers (1.03 
percent of expenditures). These costs will be higher due to the volume 
and complexity of health plan billing systems; health plans are 
required to implement more policies and procedures to protect health 
information because they handle so much personally identifiable 
information. Because health plan costs are higher and there is a 
smaller number of plans than other type of entities affected by the 
regulation, these costs result in a higher annual cost per small health 
plan. Table E further illustrates the cost impact by type of entity in 
the first year.

  Table E.--Small Entity Business Expenditures and Proportion of Annual Expenditures Represented by Initial and
                                   Ongoing Compliance Costs in the First Year*
----------------------------------------------------------------------------------------------------------------
                                                                                                    Compliance
                                                                   Total annual                      cost as a
                                                                    initial and       Annual       percentage of
                            Industry                               ongoing costs    expenditure       a small
                                                                   in the first      per small       entity's
                                                                     year, per      entity \1\        annual
                                                                   small entity                    expenditures
----------------------------------------------------------------------------------------------------------------
Drug Stores & Proprietary Stores \2\............................       $1,480.03      $2,046,199            0.07
Accident & Health Insurance & Medical Service Plans \2\                 3,602.41         350,467            1.03
 (Accident & Health Insurance and Hospital & Medical Service
 Plans).........................................................
Offices & Clinics Of Doctors Of Medicine........................          680.20         695,560            0.10
Offices & Clinics Of Dentists...................................          531.94         434,260            0.12
Offices & Clinics Of Other Health Practitioners.................          612.94         583,805            0.10
Nursing & Personal Care Facilities..............................        2,457.99       1,629,755            0.15
Hospitals.......................................................       10,211.62       2,660,215            0.38
Home Health Care Services.......................................          877.49       1,003,475            0.09
Other Health Care Services including Lab Services...............          503.55         351,146            0.14
                                                                 -----------------------------------------------
    Average Cost................................................          732.61         625,992           0.12
----------------------------------------------------------------------------------------------------------------
* The SBA defines small health care entities as those with annual revenue under $5,000,000.
** Total Initial Compliance Cost includes policy implementation and systems compliance costs
\1\ Based on the assumption that the proportion of revenue generated by small businesses approximates the
  proportion of expenditures faced by small businesses
\2\ Includes some entities not covered by this regulation. Pharmacies are the only component of Drug Stores and
  Proprietary Stores covered by the regulation. Accident and workers compensation insurance are not covered by
  the regulation.

Ongoing Costs
    In this section, we evaluate the ongoing costs of providing patient 
notices, the annual cost of amending and correcting medical 
information, the cost of providing written authorizations, and the 
ongoing cost of paperwork and training. We estimated the ongoing costs 
of compliance through calculations

[[Page 60044]]

similar to those used for our systems compliance estimates. Ongoing 
costs are most heavily influenced by the size of the business. 
Therefore, we assume that the number of patients an entity serves is 
directly proportional to its ongoing compliance costs.
    We estimated market share using Small Business Administration data 
estimating total receipts.\52\ We divided the small entity receipts by 
total receipts and arrived at an estimate that 22 percent of the 
revenue generated by the health care classifications we examined is 
from small businesses. Using annual receipts to estimate cost burden is 
more accurate than using information on the number of health care 
entities. The size of the small entity is more likely to be correlated 
with the number of patients served than the number of businesses, and 
therefore, the amount of business conducted by an entity. Because it is 
difficult to find a single good estimate of market share, we considered 
estimating market share over a range, using the proportion of annual 
receipts as a lower bound and number of entities as the higher bound. 
We concluded that even if the SBA data does not capture the total 
amount of health care receipts accurately, estimating market share by 
examining receipts would be much more accurate than using the number of 
entities.
---------------------------------------------------------------------------

    \52\ Office of Advocacy, U.S. Small Business Administration, 
from data provided by the Bureau of the Census, Statistics of U.S. 
Businesses, 1996.
---------------------------------------------------------------------------

    We multiplied the percent total receipts by the total ongoing costs 
(by entity type) to obtain a range of ongoing costs for small entities. 
We were then able to divide these costs by the number of small entities 
by type of entity. We estimated ongoing costs in the first year that 
the proposed rule takes effect separately from our estimate of ongoing 
cost in the following years. The estimates were approximately the same; 
$337 and $343 respectively.
    We estimate that the ongoing cost of compliance will be 
approximately 0.05 percent of a small entity's annual expenditures. 
This cost burden is fairly consistent across all types of entities.
Clearinghouses and Nonprofit Entities
    We should note that the above discussion does not consider health 
care clearinghouses, nonprofit hospitals, home health agencies, or 
nursing and skilled nursing facilities. To the extent that 
clearinghouses and nonprofit facilities have annual receipts of less 
than $5 million, they were included in the preceding analysis.
    Although we do not have precise information on the number of 
clearinghouses that qualify as small entities under the RFA, we believe 
that approximately half would meet the criteria. As noted in the 
regulatory impact analysis, as long as clearinghouses perform the 
function of merely reformatting information they receive and 
transmitting the data to other entities, the cost of complying with the 
proposed rule should be minimal.
    A similar logic applies for nonprofit health plans and hospitals. 
We do know how many nonprofit organizations currently exist in the 
U.S., but do not have reliable revenue and expenditure data for these 
entities. In the absence of such data, we assume that nonprofit 
entities have a similar ratio of revenues to expenditures as the for-
profit entities we have examined. Thus, we believe that the impact of 
complying with the proposed rule should be similar to that described 
for-profit plans and hospitals.
    The preceding analysis indicates that the expected burden on small 
entities of implementing the proposed rule would be minimal. However, 
by necessity, the analysis is based on average costs, and as such, they 
may not reflect the actual burden on some or even a substantial number 
of small entities. Therefore, the Secretary does not certify that the 
proposed rule will not have a significant impact on a substantial 
number of small entities.

VI. Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
cost-benefit and other analyses for rules that would cost more than 
$100 million in a single year. The proposed rule qualifies as a 
significant rule under the statute. DHHS has carried out the cost-
benefit analysis in sections D and E of this document, which includes a 
discussion of unfunded costs to the states resulting from this 
regulation.

A. Future Costs

    DHHS estimates some of the future costs of the proposed rule in 
Section E of the Preliminary Regulatory Impact Analysis of this 
document. The reported costs include costs incurred during the 
compliance period and up to 5 years after the effective date. The same 
section also includes some qualitative discussion of costs that would 
occur beyond that time period. Most of the costs of the proposed rule, 
however, would occur in the years immediately after the publication of 
a final rule. Future costs beyond the five year period will continue 
but will not be as great as the initial compliance costs.

B. Particular Regions, Communities, or Industrial Sectors.

    The proposed rule applies to the health care industry and would, 
therefore, affect that industry disproportionately. Any long-run 
increase in the costs of health care services would largely be passed 
on to the entire population of consumers.

C. National Productivity and Economic Growth

    The proposed rule is not expected to substantially affect 
productivity or economic growth. It is possible that productivity and 
growth in certain sectors of the health care industry could be slightly 
lower than otherwise because of the need to divert research and 
development resources to compliance activities. The diversion of 
resources to compliance activities would be temporary. Moreover, DHHS 
anticipates that, because the benefits of privacy are large, both 
productivity and economic growth would be higher than in the absence of 
the proposed rule. In section I.A. of this document, DHHS discusses its 
expectation that this proposed rule would increase communication among 
consumers, health plans, and providers and that implementation of 
privacy protections will lead more people to seek health care. The 
increased health of the population will lead to increased productivity 
and economic growth.

D. Full Employment and Job Creation.

    Some of the human resources devoted to delivery of health care 
services would be redirected by the proposed rule. The proposed rule 
could lead to some short-run changes in employment patterns as a result 
of the structural changes within the health care industry. The growth 
of employment (job creation) for the roles typically associated with 
the health care profession could also be temporarily change but be 
balanced by an increased need for those who can assist entities with 
complying with this proposed rule. Therefore, while there could be a 
temporary slowing of growth in traditional health care professions, 
that will be offset by a temporary increase in growth in fields that 
may assist with compliance with this proposed rule (e.g. legal 
professionals, and management consultants).

E. Exports

    Because the proposed rule does not mandate any changes in products, 
current export products will not be required to change in any way.

VII. Environmental Impact

    The Department has determined under 21 CFR 25.30(K) that this 
action

[[Page 60045]]

is of a type that does not individually or cumulatively have a 
significant effect on the human environment. Therefore, neither an 
environmental assessment nor an environmental impact statement is 
required.

VIII. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995 (PRA), agencies are 
required to provide a 60-day notice in the Federal Register and solicit 
public comment before a collection of information requirement is 
submitted to the Office of Management and Budget (OMB) for review and 
approval. In order to fairly evaluate whether an information collection 
should be approved by OMB, section 3506(c)(2)(A) of the PRA requires 
that we solicit comment on the following issues:
     Whether the information collection is necessary and useful 
to carry out the proper functions of the agency;
     The accuracy of the agency's estimate of the information 
collection burden;
     The quality, utility, and clarity of the information to be 
collected; and
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Under the PRA, the time, effort, and financial resources necessary 
to meet the information collection requirements referenced in this 
section are to be considered. Due to the complexity of this regulation, 
and to avoid redundancy of effort, we are referring readers to Section 
IV (Regulatory Impact Analysis) above, to review the detailed cost 
assumptions associated with these PRA requirements. We explicitly seek, 
and will consider public comment on our cost assumptions, as they 
relate to the PRA requirements summarized in this section.

                        Summary PRA Burden Hours
------------------------------------------------------------------------
                                                           Burden (in
                       Provision                             hours)
------------------------------------------------------------------------
Sec.  160.204  Process for requesting exceptions......               160
Sec.  164.506  General standards and implementation                * TBD
 specifications for uses and disclosures of protected
 health information...................................
Sec.  164.508  Standards and implementation                    3,561,076
 specifications for uses and disclosures for which
 individual authorization would be required...........
Sec.  164.510  Standards and implementation                        8,903
 specifications for uses and disclosures for which
 individual authorization would not be required.......
Sec.  164.512  Notice of privacy practices; rights and         7,273,952
 procedures...........................................
Sec.  164.514  Access to protected health information;             * TBD
 rights and procedures................................
Sec.  164.515  Accounting for uses and disclosures of              * TBD
 protected health information.........................
Sec.  164.516  Amendment and correction; rights and                 *TBD
 procedures ..........................................
Sec.  164.520  Development and documentation of                2,927,000
 policies and procedures..............................
Sec.  164.522  Compliance and Enforcement.............             2,500
                                                       -----------------
    Total Hours.......................................        13,773,591
------------------------------------------------------------------------
* Burden to be determined based upon public comment.

Section 160.204  Process for Requesting Exceptions.

    Section 160.204 would require States to: (1) Submit a written 
request, that meets the requirements of this section, to the Secretary 
to except a provision of State law from preemption under Sec. 160.203; 
(2) submit a new request to the Secretary, should there be any changes 
to the standard, requirement, or implementation specification or 
provision of State law upon which an exception previously was granted, 
and (3) submit a written request for an extension of the exception 
prior to the end of the three-year approval period for a given 
exception. In addition, Sec. 160.204 would require a State to submit a 
written request for an advisory opinion to the Secretary that meets the 
requirements of Sec. 160.204.
    The burden associated with these requirements is the time and 
effort necessary for a State to prepare and submit the written request 
for preemption or advisory opinion to HCFA for approval. On an annual 
basis it is estimated that it will take 10 States 16 hours each to 
prepare and submit a request. The total annual burden associated with 
this requirement is 160 hours.

Section 164.506  General Standards and Implementation Specifications 
for Uses and Disclosures of Protected Health Information

    Given that the burden associated with the following information 
collection requirements will differ significantly, by the type and size 
of plan or provider, we are explicitly soliciting comment on the burden 
associated with the following requirements:
     Except for disclosures of protected health information by 
a covered entity that is a health care provider to another health care 
provider for treatment purposes, Sec. 160.204(e) would require a 
covered entity to maintain documentation demonstrating that they have 
entered into a contract that meets the requirements of this part with 
each of their business partners;
     A covered entity would have to make all reasonable efforts 
not to use or disclose more than the minimum amount of protected health 
information necessary to accomplish the intended purpose of the use or 
disclosure;
     A covered entity could use protected health information to 
create de-identified information if the individually identifiable 
information has been removed, coded, encrypted, or otherwise eliminated 
or concealed.

Section 164.508  Standards and Implementation Specifications for Uses 
and Disclosures for Which Individual Authorization Would Be Required

    Pursuant to the conditions set forth in this section, a covered 
entity would need to obtain a written request from an individual, 
before it uses or discloses protected health information of an 
individual. A copy of the model form which appears in Appendix to 
Subpart E of Part 164, or a form that contains the elements listed in 
paragraphs (c) or (d) of this section, as applicable, would need to be 
accepted by the covered entity.
    The burden associated with these proposed requirements is the time 
and effort necessary for a covered entity to obtain written 
authorization prior to the disclosure of identifiable information. On 
an annual basis it is estimated that it will take 890,269 entities, a 
range of 0 to 80 hours per entity to obtain and

[[Page 60046]]

maintain authorization documentation on an annual basis. Given that we 
believe the majority of the covered entities will be minimally affected 
by this requirement, we estimate the annual average burden per entity 
to be 4 hours for a total annual burden of 3,561,076 hours. Collecting 
such authorization should have costs on the order of those associated 
with providing access to records (not on a per page basis). Since the 
proposed requirement does not apply to treatment and payment, assuming 
1% of the 543 million health care encounters might be reasonable. At a 
cost of about $10 each, the aggregate cost would be about $54 million. 
Therefore, on average the cost per entity would be about $60, with many 
entities receiving no requests and thus having no costs.

Section 164.510  Standards and Implementation Specifications for Uses 
and Disclosures for Which Individual Authorization Would Not Be 
Required

    A covered entity could disclose protected health information to a 
health researcher for health research purposes subject to 45 CFR part 
46 and purposes other than those subject to 45 CFR part 46, provided 
that the covered entity has obtained written documentation 
demonstrating that the applicable requirements proposed in this section 
have been met.
    The burden associated with these proposed requirements is the time 
and effort necessary for a covered entity to maintain documentation 
demonstrating that they have obtained institutional review board or 
privacy board approval, which meet the requirements of this section. On 
an annual basis it is estimated that this proposed requirement will 
affect 1 % or 8,903 of covered entities. We further estimate that it 
will take an average of 1 hour per entity to meet these proposed 
requirements on an annual basis. Therefore, the total estimated annual 
burden associated with this proposed requirement is 8,903 hours.

Section 164.512  Notice of Privacy Practices; Rights and Procedures

    Section 164.512 would require covered entities to provide written 
notice of the entities' privacy practices, rights, and procedures that 
meet the requirements of this section to affected parties upon request 
and as summarized below.
    Health plans would provide a copy of the notice to an individual 
covered by the plan at enrollment and whenever the content of the 
notice is significantly altered thereafter, but no less frequently than 
once every three years. Total notice counts are estimated to be about 
230 million, assuming plans choose to send them out annually rather 
than keeping track of duration since last notice. The average number of 
notices per plan per year would be about 1,200. For the approximately 
19,000 plans issuing notices, the number of notices can be as few as 
1,000 for a small self-insured self-administered employer, or as many 
as a million or more for a large commercial insurer or HMO. We further 
estimate that it will require each plan, on average, 8 hours to 
disseminate the required notices. This estimate is based upon the 
assumption that the required notice will be incorporated and 
disseminated with a plan's annual policy materials. The total burden 
associated with this requirement is calculated to be 151,800 hours.
    Health care providers would provide a copy of the notice to an 
individual at the time of first service delivery to the individual, 
provide as promptly as possible a copy of the notice to an individual 
served by the provider whenever the content of the notice is 
significantly altered, post a copy of the notice in a location where it 
is reasonable to expect individuals seeking services from the provider 
to be able to read the notice, and date each version of the notice. 
Total notices in the first year are estimated to be about 700 million 
(based on annual patient contacts with hospitals, physicians, and other 
providers), with subsequent year counts of 350 million. Small providers 
could be providing 400 or fewer notices (based on 150 million persons 
with ambulatory physician contacts per year and approximately 370,000 
physician offices). The overall average will also be close to that 
amount, since the bulk of providers are small entities. Large providers 
could be sending out 3,000 or more notices (based on 20 million persons 
with hospitalizations and approximately 6600 hospitals). We further 
estimate that it will require each provider, on average, 8 hours to 
disseminate the required notices. This estimate is based upon the 
assumption that the required notice will be incorporated into and 
disseminated with other patient materials. The total burden associated 
with this requirement is calculated to be 7,122,152 hours.

Section 164.514  Access of Individuals to Protected Health Information

    Given that the burden associated with the following information 
collection requirements will differ significantly, by the type and size 
of plan or provider, we are explicitly soliciting comment on the burden 
associated with the following proposed requirements:
     An individual has a right of access to, which includes a 
right to inspect and obtain a copy of, his or her protected health 
information in a designated record set of a covered entity that is a 
health plan or a health care provider, including such information in a 
business partner's designated record set that is not a duplicate of the 
information held by the provider or plan, for so long as the 
information is maintained;
     Where the request is denied in whole or in part, the 
health plan or a health care provider would provide the individual with 
a written statement of the basis for the denial and a description of 
how the individual may complain to the covered entity pursuant to the 
complaint procedures established in Sec. 164.518 or to the Secretary 
pursuant to the procedures established in Sec. 164.522 of this subpart.

Section 164.515  Accounting for Uses and Disclosures of Protected 
Health Information

    Given that the burden associated with maintaining records to 
facilitate the recreation of disclosures will differ significantly, be 
the type and size of plan or provider, we are explicitly soliciting 
comment on the burden associated with the following proposed record 
keeping requirement:
     A covered entity that is a plan or provider would need to 
be able to give individuals an accurate accounting of all uses and 
disclosures that are for purposes other than treatment, payment, and 
health care operations; except that such procedures would provide for 
the exclusion from such accounting of protected health information 
which is disclosed to a health oversight or law enforcement agency, if 
the health oversight or law enforcement agency provides a written 
request stating that the exclusion is necessary because disclosure 
would be reasonably likely to impede the agency's activities and 
specifies the time for which such exclusion is required.

Section 164.516  Amendment and Correction

    Given that burden will associated with the following information 
collection requirements will differ significantly, by the type and size 
of plan or provider, we are explicitly soliciting comment on the burden 
associated with the following proposed requirements:
     An individual would have the right to request amendment or 
correction of his or her protected health information in designated 
records created by a covered entity that is a health plan or health 
care provider, where the

[[Page 60047]]

individual asserts that the information is not accurate or complete and 
where the error or omission may have an adverse effect on the 
individual.
     Where the request is denied , provide the individual with 
a written statement of the basis for the denial, a description of how 
the individual may file a statement of disagreement with the denial, a 
description of how the individual may file a complaint with the covered 
entity, including the name and telephone number of a contact person 
within the covered entity who can answer questions concerning the 
denial and the complaint process; and a description of how the 
individual may file a complaint with the Secretary pursuant to 
Sec. 164.522 of this subpart.

Section 164.520  Internal Privacy Practices; Standards and Procedures

    A covered entity would need to ensure that all employees who have 
access to protected health information have received appropriate 
training about the entity's policies for use and disclosure of such 
information. Upon completion of the training and at least once every 
three years thereafter, covered entities would require each employee to 
sign a statement that he or she received the privacy training and will 
honor all of the entity's privacy policies and procedures.
    The burden associated with these requirements is the time and 
effort necessary for a covered entity to obtain and maintain 
certification documentation demonstrating that applicable employees 
have received privacy training and will honor all of the entity's 
privacy policies and procedures. It is estimated that it will take 
890,269 entities, a range of 1 hour to 40 hours per entity to obtain 
and maintain documentation on an annual basis. Given that we believe 
the majority of the covered entities will be minimally affected by this 
requirement, we estimate the annual average burden to be 3 hours per 
entity for a total annual burden of 2,700,000 hours. Using previous 
calculations, 900,000 (rounded) entities break down to about 95% small, 
5% various types of large, and 1 burden hour for 95%, and 40 burden 
hours for 5%, the average burden would be 3 hours.
    In addition, this section would require a covered entity that is a 
health plan or health care provider to develop and document its 
policies and procedures for implementing the requirements of this 
proposed rule, and amend the documentation to reflect any change to a 
policy or procedure.
    The burden associated with these requirements is the time and 
effort necessary for a covered entity to maintain documentation 
demonstrating that they have implemented procedures that meet the 
requirements of this proposed rule. It is estimated that it will take 
890,269 entities a range of 15 minutes to 1 hour per entity to maintain 
procedural documentation on an annual basis. We believe the majority 
(95%) of the covered entities will be minimally affected by this 
requirement. Using the 95% small/5% large, the average burden is 17 
minutes. Multiplying by 890,269, results in a total annual burden of 
256,000 hours (see discussion below).
    Since the requirements for developing formal processes and 
documentation of procedures mirror what will already have been required 
under the HIPAA security regulations, the burden and additional costs 
should be small. To the extent that national or state associations will 
develop guidelines or general sets of processes and procedures which 
will be reviewed by individual member entity, the costs would be 
primarily those of the individual reviewers. Assuming this process 
occurs, we believe that entities will review information from 
associations in each state and prepare a set of written policies to 
meet their needs. Our estimates are based on assumed costs for 
providers ranging from $300 to $3000, with the average being about 
$375. The range correlates to the size and complexity of the provider. 
With less than 1 million provider entities, the aggregate cost would be 
on the order of $300 million. For plans and clearinghouses, our 
estimate assumes that the legal review and development of written 
policies will be more costly because of the scope of their operations. 
They are often dealing with a large number of different providers and 
may be dealing with requirements from multiple states. We believe the 
costs for these entities will range from $300 for smaller plans to 
$15,000 for the largest plans. Because there are very few large plans 
in relation to the number of small plans, the average implementation 
costs will be about $3050.

Section 164.522  Compliance and Enforcement

    An individual who believes that a covered entity is not complying 
with the requirements of this subpart may file a complaint with the 
Secretary within 180 days from the date of the alleged non-compliance, 
unless the time for filing is extended by the Secretary. The complaint 
would describe in detail the acts or omissions believed to be in 
violation of the requirements of this subpart.
    The burden associated with these requirements is the time and 
effort necessary for an individual to prepare and submit a written 
complaint to the Secretary. On an annual basis it is estimated that 
10,000 complaints will be filed on an annual basis. We further estimate 
that it will take an average of 15 minutes per individual to submit a 
complaint. Therefore, the total estimated annual burden associated with 
this requirement is 2,500 hours.
    A covered entity would need to maintain documentation necessary for 
the Secretary to ascertain whether the covered entity has complied or 
is complying with the requirements of this subpart. While this section 
is subject to the PRA, the burden associated with this requirement is 
addressed under sections referenced above, which discuss specific 
record keeping requirements.
    We have submitted a copy of this proposed rule to OMB for its 
review of the information collection requirements in Secs. 160.204, 
164.506, 164.508, 164.510, 164.512, 164.514, 164.515, 164.516, 164.520, 
and Sec. 164.522. These requirements are not effective until they have 
been approved by OMB.
    If you comment on any of these information collection and record 
keeping requirements, please mail copies directly to the following:

Health Care Financing Administration, Office of Information Services, 
Information Technology Investment Management Group, Division of HCFA 
Enterprise Standards, Room C2-26-17, 7500 Security Boulevard, 
Baltimore, MD 21244-1850. ATTN: John Burke HIPAA Privacy-P
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Room 10235, New Executive Office Building, Washington, DC 
20503. ATTN: Allison Herron Eydt, HCFA Desk Officer.

IX. Executive Order 12612: Federalism

    The Department has examined the effects of provisions in the 
proposed privacy regulation on the relationship between the Federal 
government and the States, as required by Executive Order 12612 on 
``Federalism.'' The agency concludes that preempting State or local 
proposed rules that provide less stringent privacy protection 
requirements than Federal law is consistent with this Executive Order. 
Overall, the proposed rule attempts to balance both the autonomy of the 
States with the necessity to create a Federal benchmark to preserve the 
privacy of personally identifiable health information.

[[Page 60048]]

    It is recognized that the States generally have laws that relate to 
the privacy of individually identifiable health information. The HIPAA 
statute dictates the relationship between State law and this proposed 
rule. Except for laws that are specifically exempted by the HIPAA 
statute, State laws continue to be enforceable, unless they are 
contrary to Part C of Title XI of the standards, requirements, or 
implementation specifications adopted or pursuant to subpart x. 
However, under section 264(c)(2), not all contrary provisions of State 
privacy laws are preempted; rather, the law provides that contrary 
provisions that are also ``more stringent'' than the federal regulatory 
requirements or implementation specifications will continue to be 
enforceable.
    Section 3(b) of Executive Order 12612 recognizes that Federal 
action limiting the discretion of State and local governments is 
appropriate ``where constitutional authority for the action is clear 
and certain and the national activity is necessitated by the presence 
of a problem of national scope.'' Personal privacy issues are widely 
identified as a national concern by virtue of the scope of interstate 
health commerce. HIPAA's provisions reflect this position. HIPAA 
attempts to facilitate the electronic exchange of financial and 
administrative health plan transactions while recognizing challenges 
that local, national, and international information sharing raise to 
confidentiality and privacy of health information.
    Section 3(d)(2) of the Executive Order 12612 requires that the 
Federal government refrain from ``establishing uniform, national 
standards for programs and, when possible, defer to the States to 
establish standards.'' HIPAA requires HHS to establish standards, and 
we have done so accordingly. This approach is a key component of the 
proposed privacy rule, and it adheres to Section 4(a) of Executive 
Order 12612, which expressly contemplates preemption when there is a 
conflict between exercising State and Federal authority under Federal 
statute. Section 262 of HIPAA enacted Section 1178 of the Social 
Security Act, developing a ``general rule'' that State laws or 
provisions that are contrary to the provisions or requirements of Part 
C of Title XI, or the standards or implementation specifications 
adopted, or established thereunder are preempted. Several exceptions to 
this rule exist, each of which is designed to maintain a high degree of 
State autonomy.
    Moreover, Section 4(b) of the Executive Order authorizes preemption 
of State law in the Federal rule making context when there is ``firm 
and palpable evidence compelling the conclusion that the Congress 
intended to delegate to the * * * agency the authority to issue 
regulations preempting State law.'' Section 1178 (a)(2)(B) of HIPAA 
specifically preempts State laws related to the privacy of individually 
identifiable health information unless the State law is more stringent. 
Thus, we have interpreted State and local laws and regulations that 
would impose less stringent requirements for protection of individually 
identifiable health information as undermining the agency's goal of 
ensuring that all patients who receive medical services are assured a 
minimum level of personal privacy. Particularly where the absence of 
privacy protection undermines an individual's access to health care 
services, both the personal and public interest is served by 
establishing Federal rules.
    The proposed rule would establish national minimum standards with 
respect to the collection, maintenance, access, transfer, and 
disclosure of personally identifiable health information. The Federal 
law will preempt State law only where State and Federal laws are 
``contradictory'' and the Federal regulation is judged to establish 
``more stringent'' privacy protections than State laws.
    As required by the Executive Order, States and local governments 
will be given, through this notice of proposed rule making, an 
opportunity to participate in the proceedings to preempt State and 
local laws (section 4(e) of Executive Order 12612). However, it should 
be noted that the preemption of state law is based on the HIPAA 
statute. The Secretary will also provide a review of preemption issues 
upon requests from States. In addition, under the Order, appropriate 
officials and organizations will be consulted before this proposed 
action is implemented (section 3(a) of Executive Order 12612).
    Finally, we have considered the cost burden that this proposed rule 
would impose on State-operated health care entities, Medicaid, and 
other State health benefits programs. We do not have access to reliable 
information on the number of State-operated entities and programs, nor 
do we have access to data on the costs these entities and programs 
would incur in order to comply with the proposed rule. A discussion of 
possible compliance costs that covered entities may incur is contained 
in the Unfunded Mandates section above. We believe that requiring State 
health care entities covered by the proposed rule to comply with the 
proposed rule would cost less than one percent of a State's annual 
budget.
    The agency concludes that the policy proposed in this document has 
been assessed in light of the principles, criteria, and requirements in 
Executive Order 12612; that this policy is not inconsistent with that 
Order; that this policy will not impose significant additional costs 
and burdens on the States; and that this policy will not affect the 
ability of the States to discharge traditional State governmental 
functions.
    During our consultation with the States, representatives from 
various State agencies and offices expressed concern that the proposed 
regulation would pre-empt all State privacy laws. As explained in this 
section, the regulation would only pre-empt state laws where there is a 
direct conflict between state laws and the regulation, and where the 
regulation provides more stringent privacy protection than State law. 
We discussed this issue during our consultation with State 
representatives, who generally accepted our approach to the preemption 
issue. During the consultation, we requested further information from 
the States about whether they currently have laws requiring that 
providers have a ``duty to warn'' family members or third parties about 
a patient's condition other than in emergency circumstances. Since the 
consultation, we have not received additional comments or questions 
from the States.

X. Executive Order 13086: Consultation and Coordination with Indian 
Tribal Governments

    In drafting the proposed rule, the Department consulted with 
representatives of the National Congress of American Indians and the 
National Indian Health Board, as well as with a representative of the 
self-governance Tribes. During the consultation, we discussed issues 
regarding the application of Title II of HIPAA to the Tribes, and 
potential variations based on the relationship of each Tribe with the 
IHS for the purpose of providing health services. Participants raised 
questions about the status of Tribal laws regarding the privacy of 
health information.

List of Subjects in 45 CFR Parts 160 and 164

    Employer benefit plan, Health, Health care, Health facilities, 
Health insurance, Health records, Medicaid, Medical

[[Page 60049]]

research, Medicare, Privacy, Reporting and recordkeeping requirements, 
security measures.

    Note to reader: This proposed rule is one of several proposed 
rules that are being published to implement the Administrative 
Simplification provisions of the Health Insurance Portability and 
Accountability Act of 1996. We propose to establish a new 45 CFR 
subchapter C, parts 160 through 164. Part 160 will consist of 
general provisions, part 162 will consists of the various 
Administrative Simplification regulations relating to transactions 
and identifiers, and part 164 will consists of the regulations 
implementing the security and privacy requirements of the 
legislation. Proposed part 160, consisting of two subparts (Subpart 
A General Provisions, and Subpart B--Preemption of State Law) will 
be exactly the same in each rule, unless we add new sections or 
definitions to incorporate additional general information in the 
later rules.

    Dated: October 26, 1999.
Donna Shalala,
Secretary.

Appendix to the Preamble: Sample Contact of Provider Notice

PROVIDER NOTICE OF INFORMATION PRACTICES (as of 1/1/1999)

Uses and Disclosures of Health Information

    We use health information about you for treatment, to obtain 
payment for treatment, for administrative purposes, and to evaluate 
the quality of care that you receive.
    We may use or disclose identifiable health information about you 
without your authorization for several other reasons. Subject to 
certain requirements, we may give out health information without 
your authorization for public health purposes, for auditing 
purposes, for research studies, and for emergencies. We provide 
information when otherwise required by law, such as for law 
enforcement in specific circumstances. In any other situation, we 
will ask for your written authorization before using or disclosing 
any identifiable health information about you. If you choose to sign 
an authorization to disclose information, you can later revoke that 
authorization to stop any future uses and disclosures.
    We may change our policies at any time. Before we make a 
significant change in our policies, we will change our notice and 
post the new notice in the waiting area and in each examination 
room. You can also request a copy of our notice at any time. For 
more information about our privacy practices, contact the person 
listed below.

Individual Rights

    In most cases, you have the right to look at or get a copy of 
health information about you that we use to make decisions about 
you. If you request copies, we will charge you $0.05 (5 cents) for 
each page. You also have the right to receive a list of instances 
where we have disclosed health information about you for reasons 
other than treatment, payment or related administrative purposes. If 
you believe that information in your record is incorrect or if 
important information is missing, you have the right to request that 
we correct the existing information or add the missing information.
    You may request in writing that we not use or disclose your 
information for treatment, payment and administrative purposes 
except when specifically authorized by you, when required by law, or 
in emergency circumstances. We will consider your request but are 
not legally required to accept it.

Complaints

    If you are concerned that we have violated your privacy rights, 
or you disagree with a decision we made about access to your 
records, you may contact the person listed below. You also may send 
a written complaint to the U.S. Department of Health and Human 
Services. The person listed below can provide you with the 
appropriate address upon request.

Our Legal Duty

    We are required by law to protect the privacy of your 
information, provide this notice about our information practices, 
and follow the information practices that are described in this 
notice.
    If you have any questions or complaints, please contact: Office 
Administrator, 111 Main Street, Suite 101, Anytown, OH 41111. Phone: 
(111) 555-6789, Email: [email protected].

    For the reasons set forth in the preamble, it is proposed to amend 
45 CFR subtitle A by adding a new subchapter C, consisting of parts 160 
through 164, to read as follows:

SUBCHAPTER C--ADMINISTRATIVE DATA STANDARDS AND RELATED REQUIREMENTS

Part

160--GENERAL ADMINISTRATIVE REQUIREMENTS
161-163--[RESERVED]
164--SECURITY AND PRIVACY

PART 160--GENERAL ADMINISTRATIVE REQUIREMENTS

Subpart A--General Provisions

Sec.
160.101  Statutory basis and purpose
160.102  Applicability
160.103  Definitions
160.104  Effective dates of a modification to a standard or 
implementation specification

Subpart B--Preemption of State Law

160.201  Applicability
160.202  Definitions
160.203  General rule and exceptions
160.204  Process for requesting exception determinations or advisory 
opinions

    Authority: 42 U.S.C. 1320d-2 and 1320d-4.

Subpart A--General Provisions


Sec. 160.101  Statutory basis and purpose.

    The requirements of this subchapter implement sections 1171 through 
1179 of the Social Security Act, as amended, which require HHS to adopt 
national standards to enable the electronic exchange of health 
information in the health care system. The requirements of this 
subchapter also implement section 264 of Pub. L 104-191, which requires 
that HHS adopt national standards with respect to the privacy of 
individually identifiable health information transmitted in connection 
with the transactions described in section 1173(a)(1) of the Social 
Security Act. The purpose of these provisions is to promote 
administrative simplification.


Sec. 160.102  Applicability.

    Except as otherwise provided, the standards, requirements, and 
implementation specifications adopted or designated under the parts of 
this subchapter apply to any entity that is:
    (a) A health plan;
    (b) A health care clearinghouse; and
    (c) A health care provider who transmits any health information in 
electronic form in connection with a transaction covered by this 
subchapter.


Sec. 160.103  Definitions.

    Except as otherwise provided, the following definitions apply to 
this subchapter:
    Act means the Social Security Act, as amended.
    Covered entity means an entity described in Sec. 160.102.
    Health care means the provision of care, services, or supplies to a 
patient and includes any:
    (1) Preventive, diagnostic, therapeutic, rehabilitative, 
maintenance, or palliative care, counseling, service, or procedure with 
respect to the physical or mental condition, or functional status, of a 
patient or affecting the structure or function of the body;
    (2) Sale or dispensing of a drug, device, equipment, or other item 
pursuant to a prescription; or
    (3) Procurement or banking of blood, sperm, organs, or any other 
tissue for administration to patients.
    Health care clearinghouse means a public or private entity that 
processes or facilitates the processing of nonstandard data elements of 
health information into standard data elements. The entity receives 
health care transactions from health care providers or other entities, 
translates the data from a given format into one acceptable to the 
intended payer or payers, and forwards the processed transaction to 
appropriate payers and clearinghouses. Billing services, repricing 
companies, community health management information systems, community 
health information systems, and ``value-added''

[[Page 60050]]

networks and switches are considered to be health care clearinghouses 
for purposes of this part, if they perform the functions of health care 
clearinghouses as described in the preceding sentences.
    Health care provider means a provider of services as defined in 
section 1861(u) of the Act, a provider of medical or health services as 
defined in section 1861(s) of the Act, and any other person or 
organization who furnishes, bills, or is paid for health care services 
or supplies in the normal course of business.
    Health information means any information, whether oral or recorded 
in any form or medium, that:
    (1) Is created or received by a health care provider, health plan, 
public health authority, employer, life insurer, school or university, 
or health care clearinghouse; 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.
    Health plan means an individual or group plan that provides, or 
pays the cost of, medical care. Such term includes, when applied to 
government funded or assisted programs, the components of the 
government agency administering the program. ``Health plan'' includes 
the following, singly or in combination:
    (1) A group health plan, defined as an employee welfare benefit 
plan (as currently defined in section 3(1) of the Employee Retirement 
Income and Security Act of 1974, 29 U.S.C. 1002(1)), including insured 
and self-insured plans, to the extent that the plan provides medical 
care (as defined in section 2791(a)(2) of the Public Health Service 
Act, 42 U.S.C. 300gg-91(a)(2)), including items and services paid for 
as medical care, to employees or their dependents directly or through 
insurance or otherwise, that:
    (i) Has 50 or more participants; or
    (ii) Is administered by an entity other than the employer that 
established and maintains the plan.
    (2) A health insurance issuer, defined as an insurance company, 
insurance service, or insurance organization that is licensed to engage 
in the business of insurance in a State and is subject to State or 
other law that regulates insurance.
    (3) A health maintenance organization, defined as a federally 
qualified health maintenance organization, an organization recognized 
as a health maintenance organization under State law, or a similar 
organization regulated for solvency under State law in the same manner 
and to the same extent as such a health maintenance organization.
    (4) Part A or Part B of the Medicare program under title XVIII of 
the Act.
    (5) The Medicaid program under title XIX of the Act.
    (6) A Medicare supplemental policy (as defined in section 
1882(g)(1) of the Act, 42 U.S.C. 1395ss).
    (7) A long-term care policy, including a nursing home fixed-
indemnity policy.
    (8) An employee welfare benefit plan or any other arrangement that 
is established or maintained for the purpose of offering or providing 
health benefits to the employees of two or more employers.
    (9) The health care program for active military personnel under 
title 10 of the United States Code.
    (10) The veterans health care program under 38 U.S.C. chapter 17.
    (11) The Civilian Health and Medical Program of the Uniformed 
Services (CHAMPUS), as defined in 10 U.S.C. 1072(4).
    (12) The Indian Health Service program under the Indian Health Care 
Improvement Act (25 U.S.C. 1601, et seq.).
    (13) The Federal Employees Health Benefits Program under 5 U.S.C. 
chapter 89.
    (14) An approved State child health plan for child health 
assistance that meets the requirements of section 2103 of the Act.
    (15) A Medicare Plus Choice organization as defined in 42 CFR 
422.2, with a contract under 42 CFR part 422, subpart K.
    (16) Any other individual or group health plan, or combination 
thereof, that provides or pays for the cost of medical care.
    Secretary means the Secretary of Health and Human Services and any 
other officer or employee of the Department of Health and Human 
Services to whom the authority involved has been delegated.
    Small health plan means a health plan with annual receipts of $5 
million or less.
    Standard means a prescribed set of rules, conditions, or 
requirements concerning classification of components, specification of 
materials, performance or operations, or delineation of procedures, in 
describing products, systems, services or practices.
    State includes the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, and Guam.
    Transaction means the exchange of information between two parties 
to carry out financial or administrative activities related to health 
care. It includes the following:
    (1) Health claims or equivalent encounter information;
    (2) Health care payment and remittance advice;
    (3) Coordination of benefits;
    (4) Health claims status;
    (5) Enrollment and disenrollment in a health plan;
    (6) Eligibility for a health plan;
    (7) Health plan premium payments;
    (8) Referral certification and authorization;
    (9) First report of injury;
    (10) Health claims attachments; and
    (11) Other transactions as the Secretary may prescribe by 
regulation.


Sec. 160.104  Effective dates of a modification to a standard or 
implementation specification.

    The Secretary may modify a standard or implementation specification 
after the first year in which the standard or implementation 
specification is required to be used, but not more frequently than once 
every 12 months. If the Secretary adopts a modification to a standard 
or implementation specification, the implementation date of the 
modified standard or implementation specification may be no earlier 
than 180 days following the adoption of the modification. The Secretary 
will determine the actual date, taking into account the time needed to 
comply due to the nature and extent of the modification. The Secretary 
may extend the time for compliance for small health plans.

Subpart B--Preemption of State Law


Sec. 160.201  Applicability.

    The provisions of this subpart apply to determinations and advisory 
opinions issued by the Secretary pursuant to 42 U.S.C. 1320d-7.


Sec. 160.202  Definitions.

    For the purpose of this subpart, the following terms have the 
following meanings:
    Contrary, when used to compare a provision of State law to a 
standard, requirement, or implementation specification adopted under 
this subchapter, means:
    (1) A party would find it impossible to comply with both the State 
and federal requirements; or
    (2) The provision of State law stands as an obstacle to the 
accomplishment and execution of the full purposes and objectives of 
part C of title XI of the Act or section 264 of Pub. L. 104-191, as 
applicable.
    More stringent means, in the context of a comparison of a provision 
of State

[[Page 60051]]

law and a standard, requirement, or implementation specification 
adopted under subpart E of part 164 of this subchapter, a law which 
meets one or more of the following criteria, as applicable:
    (1) With respect to a use or disclosure, provides a more limited 
use or disclosure (in terms of the number of potential recipients of 
the information, the amount of information to be disclosed, or the 
circumstances under which information may be disclosed).
    (2) With respect to the rights of individuals of access to or 
amendment of individually identifiable health information, permits 
greater rights or access or amendment, as applicable, provided, 
however, that nothing in this subchapter shall be construed to preempt 
any State law to the extent that it authorizes or prohibits disclosure 
of protected health information regarding a minor to a parent, guardian 
or person acting in loco parentis of such minor.
    (3) With respect to penalties, provides greater penalties.
    (4) With respect to information to be provided to an individual 
about a proposed use, disclosure, rights, remedies, and similar issues, 
provides the greater amount of information.
    (5) With respect to form or substance of authorizations for use or 
disclosure of information, provides requirements that narrow the scope 
or duration, increase the difficulty of obtaining, or reduce the 
coercive effect of the circumstances surrounding the authorization.
    (6) With respect to recordkeeping or accounting requirements, 
provides for the retention or reporting of more detailed information or 
for a longer duration.
    (7) With respect to any other matter, provides greater privacy 
protection for the individual.
    Relates to the privacy of individually identifiable health 
information means, with respect to a State law, that the State law has 
the specific purpose of protecting the privacy of health information or 
the effect of affecting the privacy of health information in a direct, 
clear, and substantial way.
    State law means a law, decision, rule, regulation, or other State 
action having the effect of law.


Sec. 160.203  General rule and exceptions.

    General rule. A standard, requirement, or implementation 
specification adopted under or pursuant to this subchapter that is 
contrary to a provision of State law preempts the provision of State 
law. This general rule applies, except where one or more of the 
following conditions is met:
    (a) A determination is made by the Secretary pursuant to 
Sec. 160.204(a) that the provision of State law:
    (1) Is necessary:
    (i) To prevent fraud and abuse;
    (ii) To ensure appropriate State regulation of insurance and health 
plans;
    (iii) For State reporting on health care delivery or costs; or
    (iv) For other purposes related to improving the Medicare program, 
the Medicaid program, or the efficiency and effectiveness of the health 
care system; or
    (2) Addresses controlled substances.
    (b) The provision of State law relates to the privacy of health 
information and is more stringent than a standard, requirement, or 
implementation specification adopted under subpart E of part 164 of 
this subchapter.
    (c) The provision of State law, or the State established 
procedures, are established under a State law providing for the 
reporting of disease or injury, child abuse, birth, or death, or for 
the conduct of public health surveillance, investigation, or 
intervention.
    (d) The provision of State law requires a health plan to report, or 
to provide access to, information for the purpose of management audits, 
financial audits, program monitoring and evaluation, facility licensure 
or certification, or individual licensure or certification.


Sec. 160.204  Process for requesting exception determinations or 
advisory opinions.

    (a) Determinations. (1) A State may submit a written request to the 
Secretary to except a provision of State law from preemption under 
Sec. 160.203(a). The request must include the following information:
    (i) The State law for which the exception is requested;
    (ii) The particular standard(s), requirement(s), or implementation 
specification(s) for which the exception is requested;
    (iii) The part of the standard or other provision that will not be 
implemented based on the exception or the additional data to be 
collected based on the exception, as appropriate;
    (iv) How health care providers, health plans, and other entities 
would be affected by the exception;
    (v) The length of time for which the exception would be in effect, 
if less than three years;
    (vi) The reasons why the State law should not be preempted by the 
federal standard, requirement, or implementation specification, 
including how the State law meets one or more of the criteria at 
Sec. 160.203(a); and
    (vii) Any other information the Secretary may request in order to 
make the determination.
    (2) Requests for exception under this section must be submitted to 
the Secretary at an address which will be published in the Federal 
Register. Until the Secretary's determination is made, the standard, 
requirement, or implementation specification under this subchapter 
remains in effect.
    (3) The Secretary's determination under this paragraph will be made 
on the basis of the extent to which the information provided and other 
factors demonstrate that one or more of the criteria at Sec. 160.203(a) 
has been met. If it is determined that the federal standard, 
requirement, or implementation specification accomplishes the purposes 
of the criterion or criteria at Sec. 160.203(a) as well as or better 
than the State law for which the request is made, the request will be 
denied.
    (4) An exception granted under this paragraph is effective for 
three years or for such lesser time as is specified in the 
determination granting the request.
    (5) If an exception is granted under this paragraph, the exception 
has effect only with respect to transactions taking place wholly within 
the State for which the exception was requested.
    (6) Any change to the standard, requirement, or implementation 
specification or provision of State law upon which an exception was 
granted requires a new request for an exception. Absent such a request 
and a favorable determination thereon, the standard, requirement, or 
implementation specification remains in effect. The responsibility for 
recognizing the need for and making the request lies with the original 
requestor.
    (7) The Secretary may seek changes to a standard, requirement, or 
implementation specification based on requested exceptions or may urge 
the requesting State or other organizations or persons to do so.
    (8) Determinations made by the Secretary pursuant to this paragraph 
will be published annually in the Federal Register.
    (b) Advisory opinions.--(1) The Secretary may issue advisory 
opinions as to whether a provision of State law constitutes an 
exception under Sec. 160.203(b) to the general rule of preemption under 
that section. The Secretary may issue such opinions at the request of a 
State or at the Secretary's own initiative.
    (2) A State may submit a written request to the Secretary for an 
advisory opinion under this paragraph. The

[[Page 60052]]

request must include the following information:
    (i) The State law for which the exception is requested;
    (ii) The particular standard(s), requirement(s), or implementation 
specification(s) for which the exception is requested;
    (iii) How health care providers, health plans, and other entities 
would be affected by the exception;
    (iv) The reasons why the State law should not be preempted by the 
federal standard, requirement, or implementation specification, 
including how the State law meets the criteria at Sec. 160.203(b); and
    (v) Any other information the Secretary may request in order to 
issue the advisory opinion.
    (3) The requirements of paragraphs (a)(2), (a)(5)-(a)(7) of this 
section apply to requests for advisory opinions under this paragraph.
    (4) The Secretary's decision under this paragraph will be made on 
the basis of the extent to which the information provided and other 
factors demonstrate that the criteria at Sec. 160.203(b) are met.
    (5) Advisory opinions made by the Secretary pursuant to this 
paragraph will be published annually in the Federal Register.

PARTS 161-163--[RESERVED]

PART 164--SECURITY AND PRIVACY

Subpart A--General Provisions

Sec.
164.102  Statutory basis
164.104  Applicability

Subparts B-D--[Reserved]

Subpart E--Privacy of Individually Identifiable Health Information

164.502  Applicability
164.504  Definitions
164.506  Uses and disclosures of protected health information: 
general rules
164.508  Uses and disclosures for which individual authorization is 
required
164.510  Uses and disclosures for which individual authorization is 
not required
164.512  Notice to individuals of information practices
164.514  Access of individuals to protected health information
164.515  Accounting for disclosures of protected health information
164.516  Amendment and correction
164.518  Administrative requirements
164.520  Documentation of policies and procedures
164.522  Compliance and enforcement
164.524  Effective date
Appendix to Subpart E of Part 164--Model Authorization Form

    Authority: 42 U.S.C. 1320d-2 and 1320d-4.

Subpart A--General Provisions


Sec. 164.102  Statutory basis.

    The provisions of this part are adopted pursuant to the Secretary's 
authority to prescribe standards, requirements, and implementation 
standards under part C of title XI of the Act and section 264 of Public 
Law 104-191.


Sec. 164.104  Applicability.

    Except as otherwise provided, the provisions of this part apply to 
covered entities: health plans, health care clearinghouses, and health 
care providers who transmit health information in electronic form in 
connection with any transaction referred to in section 1173(a)(1) of 
the Act.

Subpart B-D--[Reserved]

Subpart E--Privacy of Individually Identifiable Health Information


Sec. 164.502  Applicability.

    In addition to the applicable provisions of part 160 of this 
subchapter and except as otherwise herein provided, the requirements, 
standards, and implementation specifications of this subpart apply to 
covered entities with respect to protected health information.


Sec. 164.504  Definitions.

    As used in this subpart, the following terms have the following 
meanings:
    Business partner means, with respect to a covered entity, a person 
to whom the covered entity discloses protected health information so 
that the person can carry out, assist with the performance of, or 
perform on behalf of, a function or activity for the covered entity. 
``Business partner'' includes contractors or other persons who receive 
protected health information from the covered entity (or from another 
business partner of the covered entity) for the purposes described in 
the previous sentence, including lawyers, auditors, consultants, third-
party administrators, health care clearinghouses, data processing 
firms, billing firms, and other covered entities. ``Business partner'' 
excludes persons who are within the covered entity's workforce, as 
defined in this section.
    Designated record set means a group of records under the control of 
a covered entity from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual and which is used by the covered 
entity to make decisions about the individual. For purposes of this 
paragraph, the term record means any item, collection, or grouping of 
protected health information maintained, collected, used, or 
disseminated by a covered entity.
    Disclosure means the release, transfer, provision of access to, or 
divulging in any other manner of information outside the entity holding 
the information.
    Health care operations means the following activities undertaken by 
or on behalf of a covered entity that is a health plan or health care 
provider for the purpose of carrying out the management functions of 
such entity necessary for the support of treatment or payment:
    (1) Conducting quality assessment and improvement activities, 
including outcomes evaluation and development of clinical guidelines;
    (2) Reviewing the competence or qualifications of health care 
professionals, evaluating practitioner and provider performance, health 
plan performance, conducting training programs in which undergraduate 
and graduate students and trainees in areas of health care learn under 
supervision to practice as health care providers, accreditation, 
certification, licensing or credentialing activities;
    (3) Insurance rating and other insurance activities relating to the 
renewal of a contract for insurance, including underwriting, experience 
rating, and reinsurance, but only when the individuals are already 
enrolled in the health plan conducting such activities and the use or 
disclosure of protected health information relates to an existing 
contract of insurance (including the renewal of such a contract);
    (4) Conducting or arranging for medical review and auditing 
services, including fraud and abuse detection and compliance programs; 
and
    (5) Compiling and analyzing information in anticipation of or for 
use in a civil or criminal legal proceeding.
    Health oversight agency means an agency, person or entity, 
including the employees or agents thereof,
    (1) That is:
    (i) A public agency; or
    (ii) A person or entity acting under grant of authority from or 
contract with a public agency; and
    (2) Which performs or oversees the performance of any audit; 
investigation; inspection; licensure or discipline; civil, criminal, or 
administrative proceeding or action; or other activity necessary for 
appropriate oversight of the health care system, of government benefit 
programs for which health information is relevant to beneficiary 
eligibility, or of government regulatory programs for which health 
information is necessary

[[Page 60053]]

for determining compliance with program standards.
    Individual means the person who is the subject of protected health 
information, except that:
    (1) ``Individual'' includes:
    (i) With respect to adults and emancipated minors, legal 
representatives (such as court-appointed guardians or persons with a 
power of attorney), to the extent to which applicable law permits such 
legal representatives to exercise the person's rights in such contexts.
    (ii) With respect to unemancipated minors, a parent, guardian, or 
person acting in loco parentis, provided that when a minor lawfully 
obtains a health care service without the consent of or notification to 
a parent, guardian, or other person acting in loco parentis, the minor 
shall have the exclusive right to exercise the rights of an individual 
under this subpart with respect to the protected health information 
relating to such care.
    (iii) With respect to deceased persons, an executor, administrator, 
or other person authorized under applicable law to act on behalf of the 
decedent's estate.
    (2) ``Individual'' excludes:
    (i) Foreign military and diplomatic personnel and their dependents 
who receive health care provided by or paid for by the Department of 
Defense or other federal agency, or by an entity acting on its behalf, 
pursuant to a country-to-country agreement or federal statute; and
    (ii) Overseas foreign national beneficiaries of health care 
provided by the Department of Defense or other federal agency, or by a 
non-governmental organization acting on its behalf.
    Individually identifiable health information is information that is 
a subset of health information, including demographic information 
collected from an individual, and that:
    (1) Is created by or received from a health care provider, health 
plan, employer, or health care clearinghouse; 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, and
    (i) Which identifies the individual, or
    (ii) With respect to which there is a reasonable basis to believe 
that the information can be used to identify the individual.
    Law enforcement official means an officer of an agency or authority 
of the United States, a State, a territory, a political subdivision of 
a State or territory, or an Indian tribe, who is empowered by law to 
conduct:
    (1) An investigation or official proceeding inquiring into a 
violation of, or failure to comply with, any law; or
    (2) A criminal, civil, or administrative proceeding arising from a 
violation of, or failure to comply with, any law.
    Payment means:
    (1) The activities undertaken by or on behalf of a covered entity 
that is:
    (i) A health plan, or by a business partner on behalf of a health 
plan, to obtain premiums or to determine or fulfill its responsibility 
for coverage under the health plan and for provision of benefits under 
the health plan; or
    (ii) A health care provider or health plan, or a business partner 
on behalf of such provider or plan, to obtain reimbursement for the 
provision of health care.
    (2) Activities that constitute payment include:
    (i) Determinations of coverage, improving methods of paying or 
coverage policies, adjudication or subrogation of health benefit 
claims;
    (ii) Risk adjusting amounts due based on enrollee health status and 
demographic characteristics;
    (iii) Billing, claims management, and medical data processing;
    (iv) Review of health care services with respect to medical 
necessity, coverage under a health plan, appropriateness of care, or 
justification of charges; and
    (v) Utilization review activities, including precertification and 
preauthorization of services.
    Protected health information means individually identifiable health 
information that is or has been electronically transmitted or 
electronically maintained by a covered entity and includes such 
information in any other form.
    (1) For purposes of this definition,
    (i) ``Electronically transmitted'' includes information exchanged 
with a computer using electronic media, such as the movement of 
information from one location to another by magnetic or optical media, 
transmissions over the Internet, Extranet, leased lines, dial-up lines, 
private networks, telephone voice response, and ``faxback'' systems.
    (ii) ``Electronically maintained'' means information stored by a 
computer or on any electronic medium from which information may be 
retrieved by a computer, such as electronic memory chips, magnetic 
tape, magnetic disk, or compact disc optical media.
    (2) ``Protected health information'' excludes:
    (i) Individually identifiable health information in education 
records covered by the Family Educational Right and Privacy Act, as 
amended, 20 U.S.C. 1232g; and
    (ii) Individually identifiable health information of inmates of 
correctional facilities and detainees in detention facilities.
    Public health authority means an agency or authority of the United 
States, a State, a territory, a political subdivision of a State or 
territory, or an Indian tribe that is responsible for public health 
matters as part of its official mandate.
    Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. ``Generalizable knowledge'' is knowledge 
related to health that can be applied to populations outside of the 
population served by the covered entity.
    Treatment means the provision of health care by, or the 
coordination of health care (including health care management of the 
individual through risk assessment, case management, and disease 
management) among, health care providers; the referral of a patient 
from one provider to another; or the coordination of health care or 
other services among health care providers and third parties authorized 
by the health plan or the individual.
    Use means the employment, application, utilization, examination, or 
analysis of information within an entity that holds the information.
    Workforce means employees, volunteers, trainees, and other persons 
under the direct control of a covered entity, including persons 
providing labor on an unpaid basis.


Sec. 164.506  Uses and disclosures of protected health information: 
general rules.

    (a) Standard. A covered entity may not use or disclose an 
individual's protected health information, except as otherwise 
permitted or required by this part or as required to comply with 
applicable requirements of this subchapter.
    (1) Permitted uses and disclosures. A covered entity is permitted 
to use or disclose protected health information as follows:
    (i) Except for research information unrelated to treatment, to 
carry out treatment, payment, or health care operations;
    (ii) Pursuant to an authorization by the individual that complies 
with Sec. 164.508; or
    (iii) As permitted by and in compliance with this section or 
Sec. 164.510.

[[Page 60054]]

    (2) Required disclosures. A covered entity is required to disclose 
protected health information:
    (i) To an individual, when a request is made under Sec. 164.514; or
    (ii) When required by the Secretary under Sec. 164.522 to 
investigate or determine the entity's compliance with this part.
    (b)(1) Standard: Minimum necessary. A covered entity must make all 
reasonable efforts not to use or disclose more than the minimum amount 
of protected health information necessary to accomplish the intended 
purpose of the use or disclosure. This requirement does not apply to 
uses or disclosures that are:
    (i) Made in accordance with Secs. 164.508(a)(1), 164.514, or 
Sec. 164.522;
    (ii) Required by law and permitted under Sec. 164.510;
    (iii) Required for compliance with applicable requirements of this 
subchapter; or
    (iv) Made by a covered health care provider to a covered health 
plan, when the information is requested for audit and related purposes.
    (2) Implementation specification: Procedures. To comply with the 
standard in this paragraph, a covered entity must have procedures to:
    (i) Identify appropriate persons within the entity to determine 
what information should be used or disclosed consistent with the 
minimum necessary standard;
    (ii) Ensure that the persons identified under paragraph (b)(2)(i) 
of this section make the minimum necessary determinations, when 
required;
    (iii) Within the limits of the entity's technological capabilities, 
provide for the making of such determinations individually.
    (3) Implementation specification: Reliance. When making disclosures 
to public officials that are permitted under Sec. 164.510 but not 
required by other law, a covered entity may reasonably rely on the 
representations of such officials that the information requested is the 
minimum necessary for the stated purpose(s).
    (c)(1) Standard: Right of an individual to restrict uses and 
disclosures. (i) A covered entity that is a health care provider must 
permit individuals to request that uses or disclosures of protected 
health information for treatment, payment, or health care operations be 
restricted, and, if the requested restrictions are agreed to by the 
provider, not make uses or disclosures inconsistent with such 
restrictions.
    (ii) This requirement does not apply:
    (A) To uses or disclosures permitted under Sec. 164.510;
    (B) When the health care services provided are emergency services 
or the information is requested pursuant to Sec. 164.510(k) and
    (C) To disclosures to the Secretary pursuant to Sec. 164.522.
    (iii) A provider is not required to agree to a requested 
restriction.
    (2) Implementation specifications. A covered entity must have 
procedures that:
    (i) Provide individuals an opportunity to request a restriction on 
the uses and disclosures of their protected health information;
    (ii) Provide that restrictions that are agreed to by the entity are 
reduced to writing or otherwise documented;
    (iii) Enable the entity to honor such restrictions; and
    (iv) Provide for the notification of others to whom such 
information is disclosed of such restriction.
    (d)(1) Standard: use or disclosure of de-identified protected 
health information. The requirements of this subpart do not apply to 
protected health information that a covered entity has de-identified, 
provided, however, that:
    (i) Disclosure of a key or other device designed to enable coded or 
otherwise de-identified information to be re-identified constitutes 
disclosure of protected health information; and
    (ii) If a covered entity re-identifies de-identified information, 
it may use or disclose such re-identified information only in 
accordance with this subpart.
    (2) Implementation specifications. (i) A covered entity may use 
protected health information to create de-identified information by 
removing, coding, encrypting, or otherwise eliminating or concealing 
the information that makes such information individually identifiable.
    (ii) Information is presumed not to be individually identifiable 
(de-identified), if:
    (A) The following identifiers have been removed or otherwise 
concealed:
    (1) Name;
    (2) Address, including street address, city, county, zip code, and 
equivalent geocodes;
    (3) Names of relatives;
    (4) Name of employers;
    (5) Birth date;
    (6) Telephone numbers;
    (7) Fax numbers;
    (8) Electronic mail addresses;
    (9) Social security number;
    (10) Medical record number;
    (11) Health plan beneficiary number;
    (12) Account number;
    (13) Certificate/license number;
    (14) Any vehicle or other device serial number;
    (15) Web Universal Resource Locator (URL);
    (16) Internet Protocol (IP) address number;
    (17) Finger or voice prints;
    (18) Photographic images; and
    (19) Any other unique identifying number, characteristic, or code 
that the covered entity has reason to believe may be available to an 
anticipated recipient of the information; and
    (B) The covered entity has no reason to believe that any 
anticipated recipient of such information could use the information, 
alone or in combination with other information, to identify an 
individual.
    (iii) Notwithstanding paragraph (d)(2)(ii) of this section, 
entities with appropriate statistical experience and expertise may 
treat information as de-identified, if they include information listed 
in paragraph (d)(2)(ii) of this section and they determine that the 
probability of identifying individuals with such identifying 
information retained is very low, or may remove additional information, 
if they have a reasonable basis to believe such additional information 
could be used to identify an individual.
    (e)(1) Standards: Business partners. (i) Except for disclosures of 
protected health information by a covered entity that is a health care 
provider to another health care provider for consultation or referral 
purposes, a covered entity may not disclose protected health 
information to a business partner without satisfactory assurance from 
the business partner that it will appropriately safeguard the 
information.
    (ii) A covered entity must take reasonable steps to ensure that 
each business partner complies with the requirements of this subpart 
with respect to any task or other activity it performs on behalf of the 
entity, to the extent the covered entity would be required to comply 
with such requirements.
    (2) Implementation specific