Under the HIPAA Privacy Rule, What Is Permitted Use and Disclosure of PHI?
A covered entity is permitted, but not required, to use and disclose protected health information, without an individual’s authorization, for the following purposes or situations:
To the Individual (unless required for access or accounting of disclosures):
A covered entity may be permitted to disclose protected health information to the individual who is the subject of the information.
Treatment, Payment, and Healthcare Operations:
- Treatment is the provision, coordination, or management of healthcare and related services for an individual by a health care provider.
- Payment encompasses activities of a health plan to obtain premiums, determine or fulfill responsibilities for coverage and provision of benefits, and furnish or obtain reimbursement for health care delivered to an individual. Payment also includes activities of a health care provider to obtain payment or be reimbursed for the provision of health care to an individual.
- Health care operations are any of the following activities:
- Quality assessment and improvement activities, including case management and care coordination;
- Competency assurance activities, including provider or health plan performance evaluation, credentialing, and accreditation;
- Conducting or arranging for medical reviews, audits, or legal services, including fraud and abuse detection and compliance programs;
- Specified insurance functions, such as underwriting, risk rating, and reinsuring risk;
- Business planning, development, management, and administration; and
- Business management and general administrative activities of the entity, including but not limited to:
- De-identifying protected health information (removing specific information about a patient that can be used alone or in combination with other information to identify that patient);
- Creating a limited data set (identifiable healthcare information that covered entities are permitted to share with certain entities for research purposes, public health activities, and healthcare operations, without obtaining prior patient written authorization); and
- Certain fundraising for the benefit of the covered entity.
Note that most uses and disclosures of psychotherapy notes for treatment, payment, and health care operations purposes require an authorization. Obtaining “consent” (written permission from individuals to use and disclose their protected health information for treatment, payment, and health care operations) is optional under the Privacy Rule for all covered entities. The content of a consent form, and the process for obtaining consent, are at the discretion of the covered entity electing to seek consent.
Use and Disclosure of PHI to which an Individual Has an Opportunity to Agree or Object:
Informal permission may be obtained by asking the individual outright, or by circumstances that clearly give the individual the opportunity to agree, acquiesce, or object. Where the individual is incapacitated, in an emergency situation, or not available, covered entities generally may use and disclose PHI, if in the exercise of their professional judgment, the use or disclosure is determined to be in the best interests of the individual. Uses or disclosures to which an individual has an opportunity to agree or object include:
- Facility Directories. Many health care facilities, such as hospitals, to maintain a directory of patient contact information. A covered health care provider may rely on an individual’s informal permission to list in its facility directory the individual’s name, general condition, religious affiliation, and location in the provider’s facility. The provider may then disclose the individual’s condition and location in the facility to anyone asking for the individual by name, and also may disclose religious affiliation to clergy. Members of the clergy are not required to ask for the individual by name when inquiring about patient religious affiliation.
- For Notification and Other Purposes. A covered entity also may rely on an individual’s informal permission to disclose to the individual’s family, relatives, or friends, or to other persons whom the individual identifies, protected health information directly relevant to that person’s involvement in the individual’s care or payment for care. A covered entity may rely on an individual’s informal permission to use or disclose protected health information for the purpose of notifying (including identifying or locating) family members, personal representatives, or others responsible for the individual’s care of the individual’s location, general condition, or death.