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SUMMARY OF THE
HIPAA PRIVACY RULE
HIPAA Compliance Assistance
O C R P R I V A C Y B R I E F
i
SUMMARY OF
THE HIPAA PRIVACY RULE
Contents
Introduction …………………………………………………………………………………………………………. 1
Statutory & Regulatory Background……………………………………………………………………….. 1
Who is Covered by the Privacy Rule ………………………………………………………………………. 2
Business Associates………………………………………………………………………………………………. 3
What Information is Protected ……………………………………………………………………………….. 3
General Principle for Uses and Disclosures ……………………………………………………………… 4
Permitted Uses and Disclosures ……………………………………………………………………………… 4
Authorized Uses and Disclosures……………………………………………………………………………. 9
Limiting Uses and Disclosures to the Minimum Necessary ……………………………………… 10
Notice and Other Individual Rights ………………………………………………………………………. 11
Administrative Requirements……………………………………………………………………………….. 14
Organizational Options ……………………………………………………………………………………….. 15
Other Provisions: Personal Representatives and Minors ………………………………………….. 16
State Law…………………………………………………………………………………………………………… 17
Enforcement and Penalties for Noncompliance ………………………………………………………. 17
Compliance Dates ………………………………………………………………………………………………. 18
Copies of the Rule & Related Materials…………………………………………………………………. 18
End Notes ………………………………………………………………………………………………………….. 19
OCR Privacy Rule Summary 1 Last Revised 05/03
SUMMARY OF
THE HIPAA PRIVACY RULE
Introduction
The Standards for Privacy of Individually Identifiable Health Information (“Privacy
Rule”) establishes, for the first time, a set of national standards for the protection of
certain health information. The U.S. Department of Health and Human Services
(“HHS”) issued the Privacy Rule to implement the requirement of the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”). 1 The Privacy Rule
standards address the use and disclosure of individuals’ health information—called
“protected health information” by organizations subject to the Privacy Rule — called
“covered entities,” as well as standards for individuals’ privacy rights to understand
and control how their health information is used. Within HHS, the Office for Civil
Rights (“OCR”) has responsibility for implementing and enforcing the Privacy Rule
with respect to voluntary compliance activities and civil money penalties.
A major goal of the Privacy Rule is to assure that individuals’ health information is
properly protected while allowing the flow of health information needed to provide
and promote high quality health care and to protect the public’s health and well being.
The Rule strikes a balance that permits important uses of information, while
protecting the privacy of people who seek care and healing. Given that the health
care marketplace is diverse, the Rule is designed to be flexible and comprehensive to
cover the variety of uses and disclosures that need to be addressed.
This is a summary of key elements of the Privacy Rule and not a complete or
comprehensive guide to compliance. Entities regulated by the Rule are obligated to
comply with all of its applicable requirements and should not rely on this summary as
a source of legal information or advice. To make it easier for entities to review the
complete requirements of the Rule, provisions of the Rule referenced in this summary
are cited in notes at the end of this document. To view the entire Rule, and for other
additional helpful information about how it applies, see the OCR website:
http://www.hhs.gov/ocr/hipaa. In the event of a conflict between this summary
and the Rule, the Rule governs.
Links to the OCR Guidance Document are provided throughout this paper. Provisions
of the Rule referenced in this summary are cited in endnotes at the end of this
document. To review the entire Rule itself, and for other additional helpful
information about how it applies, see the OCR website:
http://www.hhs.gov/ocr/hipaa.
Statutory &
Regulatory
Background
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public
Law 104-191, was enacted on August 21, 1996. Sections 261 through 264 of HIPAA
require the Secretary of HHS to publicize standards for the electronic exchange,
privacy and security of health information. Collectively these are known as the
Administrative Simplification provisions.
HIPAA required the Secretary to issue privacy regulations governing individually
identifiable health information, if Congress did not enact privacy legislation within
http://www.hhs.gov/ocr/hipaa
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OCR Privacy Rule Summary 2 Last Revised 05/03
three years of the passage of HIPAA. Because Congress did not enact privacy
legislation, HHS developed a proposed rule and released it for public comment on
November 3, 1999. The Department received over 52,000 public comments. The
final regulation, the Privacy Rule, was published December 28, 2000.2
In March 2002, the Department proposed and released for public comment
modifications to the Privacy Rule. The Department received over 11,000 comments.
The final modifications were published in final form on August 14, 2002.3 A text
combining the final regulation and the modifications can be found at 45 CFR Part
160 and Part 164, Subparts A and E on the OCR website:
http://www.hhs.gov/ocr/hipaa.
Who is
Covered by the
Privacy Rule
The Privacy Rule, as well as all the Administrative Simplification rules, apply to
health plans, health care clearinghouses, and to any health care provider who
transmits health information in electronic form in connection with transactions for
which the Secretary of HHS has adopted standards under HIPAA (the “covered
entities”). For help in determining whether you are covered, use the decision tool at:
http://www.cms.hhs.gov/hipaa/hipaa2/support/tools/decisionsupport/default.asp.
Health Plans. Individual and group plans that provide or pay the cost of medical
care are covered entities.4 Health plans include health, dental, vision, and
prescription drug insurers, health maintenance organizations (“HMOs”), Medicare,
Medicaid, Medicare+Choice and Medicare supplement insurers, and long-term care
insurers (excluding nursing home fixed-indemnity policies). Health plans also
include employer-sponsored group health plans, government and church-sponsored
health plans, and multi-employer health plans. There are exceptions—a group health
plan with less than 50 participants that is administered solely by the employer that
established and maintains the plan is not a covered entity. Two types of government-
funded programs are not health plans: (1) those whose principal purpose is not
providing or paying the cost of health care, such as the food stamps program; and (2)
those programs whose principal activity is directly providing health care, such as a
community health center,5 or the making of grants to fund the direct provision of
health care. Certain types of insurance entities are also not health plans, including
entities providing only workers’ compensation, automobile insurance, and property
and casualty insurance.
Health Care Providers. Every health care provider, regardless of size, who
electronically transmits health information in connection with certain transactions, is
a covered entity. These transactions include claims, benefit eligibility inquiries,
referral authorization requests, or other transactions for which HHS has established
standards under the HIPAA Transactions Rule.6 Using electronic technology, such as
email, does not mean a health care provider is a covered entity; the transmission must
be in connection with a standard transaction. The Privacy Rule covers a health care
provider whether it electronically transmits these transactions directly or uses a
billing service or other third party to do so on its behalf. Health care providers
include all “providers of services” (e.g., institutional providers such as hospitals) and
“providers of medical or health services” (e.g., non-institutional providers such as
physicians, dentists and other practitioners) as defined by Medicare, and any other
person or organization that furnishes, bills, or is paid for health care.
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OCR Privacy Rule Summary 3 Last Revised 05/03
Health Care Clearinghouses. Health care clearinghouses are entities that process
nonstandard information they receive from another entity into a standard (i.e.,
standard format or data content), or vice versa. 7 In most instances, health care
clearinghouses will receive individually identifiable health information only when
they are providing these processing services to a health plan or health care provider as
a business associate. In such instances, only certain provisions of the Privacy Rule are
applicable to the health care clearinghouse’s uses and disclosures of protected health
information.8 Health care clearinghouses include billing services, repricing
companies, community health management information systems, and value-added
networks and switches if these entities perform clearinghouse functions.
Business
Associates
Business Associate Defined. In general, a business associate is a person or
organization, other than a member of a covered entity’s workforce, that performs
certain functions or activities on behalf of, or provides certain services to, a covered
entity that involve the use or disclosure of individually identifiable health
information. Business associate functions or activities on behalf of a covered entity
include claims processing, data analysis, utilization review, and billing.9 Business
associate services to a covered entity are limited to legal, actuarial, accounting,
consulting, data aggregation, management, administrative, accreditation, or financial
services. However, persons or organizations are not considered business associates if
their functions or services do not involve the use or disclosure of protected health
information, and where any access to protected health information by such persons
would be incidental, if at all. A covered entity can be the business associate of
another covered entity.
Business Associate Contract. When a covered entity uses a contractor or other non-
workforce member to perform “business associate” services or activities, the Rule
requires that the covered entity include certain protections for the information in a
business associate agreement (in certain circumstances governmental entities may use
alternative means to achieve the same protections). In the business associate contract,
a covered entity must impose specified written safeguards on the individually
identifiable health information used or disclosed by its business associates.10
Moreover, a covered entity may not contractually authorize its business associate to
make any use or disclosure of protected health information that would violate the
Rule. Covered entities that have an existing written contract or agreement with
business associates prior to October 15, 2002, which is not renewed or modified prior
to April 14, 2003, are permitted to continue to operate under that contract until they
renew the contract or April 14, 2004, whichever is first.11 Sample business associate
contract language is available on the OCR website at:
http://www.hhs.gov/ocr/hipaa/contractprov.html. Also see OCR “Business
Associate” Guidance.
What
Information is
Protected
Protected Health Information. The Privacy Rule protects all “individually
identifiable health information” held or transmitted by a covered entity or its business
associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule
calls this information “protected health information (PHI).”12
http://www.hhs.gov/ocr/hipaa/contractprov.html
http://www.hhs.gov/ocr/hipaa/guidelines/businessassociates.pdf
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OCR Privacy Rule Summary 4 Last Revised 05/03
“Individually identifiable health information” is information, including demographic
data, that relates to:
• the individual’s past, present or future physical or mental health or
condition,
• the provision of health care to the individual, or
• the past, present, or future payment for the provision of health care to the
individual,
and that identifies the individual or for which there is a reasonable basis to believe
can be used to identify the individual.13 Individually identifiable health information
includes many common identifiers (e.g., name, address, birth date, Social Security
Number).
The Privacy Rule excludes from protected health information employment records
that a covered entity maintains in its capacity as an employer and education and
certain other records subject to, or defined in, the Family Educational Rights and
Privacy Act, 20 U.S.C. §1232g.
De-Identified Health Information. There are no restrictions on the use or
disclosure of de-identified health information.14 De-identified health information
neither identifies nor provides a reasonable basis to identify an individual. There are
two ways to de-identify information; either: 1) a formal determination by a qualified
statistician; or 2) the removal of specified identifiers of the individual and of the
individual’s relatives, household members, and employers is required, and is
adequate only if the covered entity has no actual knowledge that the remaining
information could be used to identify the individual.15
General
Principle for
Uses and
Disclosures
Basic Principle. A major purpose of the Privacy Rule is to define and limit the
circumstances in which an individual’s protected heath information may be used or
disclosed by covered entities. A covered entity may not use or disclose protected
health information, except either: (1) as the Privacy Rule permits or requires; or (2) as
the individual who is the subject of the information (or the individual’s personal
representative) authorizes in writing.16
Required Disclosures. A covered entity must disclose protected health information
in only two situations: (a) to individuals (or their personal representatives)
specifically when they request access to, or an accounting of disclosures of, their
protected health information; and (b) to HHS when it is undertaking a compliance
investigation or review or enforcement action.17 See OCR “Government Access”
Guidance.
Permitted Uses
and Disclosures
Permitted Uses and Disclosures. 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: (1) To the Individual (unless required for
access or accounting of disclosures); (2) Treatment, Payment, and Health Care
Operations; (3) Opportunity to Agree or Object; (4) Incident to an otherwise
permitted use and disclosure; (5) Public Interest and Benefit Activities; and
http://www.hhs.gov/ocr/hipaa/guidelines/govtaccess.pdf
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OCR Privacy Rule Summary 5 Last Revised 05/03
(6) Limited Data Set for the purposes of research, public health or health care
operations.18 Covered entities may rely on professional ethics and best judgments in
deciding which of these permissive uses and disclosures to make.
(1) To the Individual. A covered entity may disclose protected health information to
the individual who is the subject of the information.
(2) Treatment, Payment, Health Care Operations. A covered entity may use and
disclose protected health information for its own treatment, payment, and health care
operations activities.19 A covered entity also may disclose protected health
information for the treatment activities of any health care provider, the payment
activities of another covered entity and of any health care provider, or the health care
operations of another covered entity involving either quality or competency assurance
activities or fraud and abuse detection and compliance activities, if both covered
entities have or had a relationship with the individual and the protected health
information pertains to the relationship. See OCR “Treatment, Payment, Health Care
Operations” Guidance.
Treatment is the provision, coordination, or management of health care and
related services for an individual by one or more health care providers,
including consultation between providers regarding a patient and referral of a
patient by one provider to another.20
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
individual21 and 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: (a) quality
assessment and improvement activities, including case management and care
coordination; (b) competency assurance activities, including provider or
health plan performance evaluation, credentialing, and accreditation; (c)
conducting or arranging for medical reviews, audits, or legal services,
including fraud and abuse detection and compliance programs; (d) specified
insurance functions, such as underwriting, risk rating, and reinsuring risk; (e)
business planning, development, management, and administration; and (f)
business management and general administrative activities of the entity,
including but not limited to: de-identifying protected health information,
creating a limited data set, and certain fundraising for the benefit of the
covered entity.22
Most uses and disclosures of psychotherapy notes for treatment, payment, and health
care operations purposes require an authorization as described below.23
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.24 The content of a consent
form, and the process for obtaining consent, are at the discretion of the covered entity
electing to seek consent.
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OCR Privacy Rule Summary 6 Last Revised 05/03
(3) Uses and Disclosures with 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 make such uses and disclosures, if in the exercise of their
professional judgment, the use or disclosure is determined to be in the best interests
of the individual.
Facility Directories. It is a common practice in 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.25 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. 26 This provision, for example,
allows a pharmacist to dispense filled prescriptions to a person acting on
behalf of the patient. Similarly, 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. In addition, protected
health information may be disclosed for notification purposes to public or
private entities authorized by law or charter to assist in disaster relief efforts.
(4) Incidental Use and Disclosure. The Privacy Rule does not require that every
risk of an incidental use or disclosure of protected health information be eliminated.
A use or disclosure of this information that occurs as a result of, or as “incident to,”
an otherwise permitted use or disclosure is permitted as long as the covered entity has
adopted reasonable safeguards as required by the Privacy Rule, and the information
being shared was limited to the “minimum necessary,” as required by the Privacy
Rule.27 See OCR “Incidental Uses and Disclosures” Guidance.
(5) Public Interest and Benefit Activities. The Privacy Rule permits use and
disclosure of protected health information, without an individual’s authorization or
permission, for 12 national priority purposes.28 These disclosures are permitted,
although not required, by the Rule in recognition of the important uses made of health
information outside of the health care context. Specific conditions or limitations
apply to each public interest purpose, striking the balance between the individual
privacy interest and the public interest need for this information.
Required by Law. Covered entities may use and disclose protected health
information without individual authorization as required by law (including by
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OCR Privacy Rule Summary 7 Last Revised 05/03
statute, regulation, or court orders).29
Public Health Activities. Covered entities may disclose protected health
information to: (1) public health authorities authorized by law to collect or
receive such information for preventing or controlling disease, injury, or
disability and to public health or other government authorities authorized to
receive reports of child abuse and neglect; (2) entities subject to FDA
regulation regarding FDA regulated products or activities for purposes such
as adverse event reporting, tracking of products, product recalls, and post-
marketing surveillance; (3) individuals who may have contracted or been
exposed to a communicable disease when notification is authorized by law;
and (4) employers, regarding employees, when requested by employers, for
information concerning a work-related illness or injury or workplace related
medical surveillance, because such information is needed by the employer to
comply with the Occupational Safety and Health Administration (OHSA),
the Mine Safety and Health Administration (MHSA), or similar state law.30
See OCR “Public Health” Guidance; CDC Public Health and HIPAA
Guidance.
Victims of Abuse, Neglect or Domestic Violence. In certain circumstances,
covered entities may disclose protected health information to appropriate
government authorities regarding victims of abuse, neglect, or domestic
violence.31
Health Oversight Activities. Covered entities may disclose protected health
information to health oversight agencies (as defined in the Rule) for purposes
of legally authorized health oversight activities, such as audits and
investigations necessary for oversight of the health care system and
government benefit programs.32
Judicial and Administrative Proceedings. Covered entities may disclose
protected health information in a judicial or administrative proceeding if the
request for the information is through an order from a court or administrative
tribunal. Such information may also be disclosed in response to a subpoena
or other lawful process if certain assurances regarding notice to the individual
or a protective order are provided.33
Law Enforcement Purposes. Covered entities may disclose protected health
information to law enforcement officials for law enforcement purposes under
the following six circumstances, and subject to specified conditions: (1) as
required by law (including court orders, court-ordered warrants, subpoenas)
and administrative requests; (2) to identify or locate a suspect, fugitive,
material witness, or missing person; (3) in response to a law enforcement
official’s request for information about a victim or suspected victim of a
crime; (4) to alert law enforcement of a person’s death, if the covered entity
suspects that criminal activity caused the death; (5) when a covered entity
believes that protected health information is evidence of a crime that
occurred on its premises; and (6) by a covered health care provider in a
medical emergency not occurring on its premises, when necessary to inform
law enforcement about the commission and nature of a crime, the location of
the crime or crime victims, and the perpetrator of the crime.34
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OCR Privacy Rule Summary 8 Last Revised 05/03
Decedents. Covered entities may disclose protected health information to
funeral directors as needed, and to coroners or medical examiners to identify
a deceased person, determine the cause of death, and perform other functions
authorized by law.35
Cadaveric Organ, Eye, or Tissue Donation. Covered entities may use or
disclose protected health information to facilitate the donation and
transplantation of cadaveric organs, eyes, and tissue.36
Research. “Research” is any systematic investigation designed to develop or
contribute to generalizable knowledge.37 The Privacy Rule permits a covered
entity to use and disclose protected health information for research purposes,
without an individual’s authorization, provided the covered entity obtains
either: (1) documentation that an alteration or waiver of individuals’
authorization for the use or disclosure of protected health information about
them for research purposes has been approved by an Institutional Review
Board or Privacy Board; (2) representations from the researcher that the use
or disclosure of the protected health information is solely to prepare a
research protocol or for similar purpose preparatory to research, that the
researcher will not remove any protected health information from the covered
entity, and that protected health information for which access is sought is
necessary for the research; or (3) representations from the researcher that the
use or disclosure sought is solely for research on the protected health
information of decedents, that the protected health information sought is
necessary for the research, and, at the request of the covered entity,
documentation of the death of the individuals about whom information is
sought.38 A covered entity also …
After connecting clients to the appropriate resources, the case manager engages in ongoing monitoring of the client’s progress to ensure that services are being rendered and goals are being met. However, this involves more than a few phone calls or inquiries on the part of the case manager. In this discussion, you will consider how you might follow up with a fictional client who has encountered a particular challenge while receiving services.
Prior to completing this discussion, read Chapter 24,
Summary of the HIPAA Privacy Rule (Links to an external site.)
, and this week’s Instructor Guidance. Next, review the brief case scenario below:
Kelly is a 17-year-old with a history of depressive episodes. For the last six months, you have been providing case management services for her, having connected her to a local counseling center to address her longstanding mental health concerns. You receive a call from Kelly’s mother informing you that Kelly attempted to commit suicide after her partner left her for someone else and is now under observation. During your previous monitoring of Kelly’s progress, she indicated to you that she was, in her words, “doing well” with the counseling and never mentioned previous suicidal thoughts or attempts at any time during your interaction with her.
Prepare an initial reply in which you
· Summarize the main reasons for monitoring Kelly while she is receiving services.
· Assess two to three ways in which you might follow up with Kelly based on the circumstances provided in the case scenario.
· Explain the core functions of the HIPAA Privacy Rule and why they are important for you to understand when monitoring Kelly in this situation.
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