In § 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.