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 § 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 § 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.
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 § 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 § 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 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 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.