We propose to permit in § 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.