Patient authorizations are required for uses or disclosures of protected health information that are not otherwise explicitly permitted under the final rule with or without consent. In addition to uses and disclosures of protected health information for treatment, payment, and health care operations with or without consent, the rule also permits certain uses of protected health information, such as fund-raising for the covered entity and certain types of marketing activity, without prior consent or authorization. Authorizations are generally required if a covered entity wants to provide protected health information to third party for use by the third party for marketing or for research that is not approved by an IRB or privacy board.
The requirement for obtaining authorizations for use or disclosure of protected health information for most marketing activity will make direct third-party marketing more difficult because covered entities may not want to obtain and track such authorizations, or they may obtain too few to make the effort economically worthwhile. However, the final rule permits an alternative arrangement: the covered entity can engage in health-related marketing on behalf of a third party, presumably for a fee. Moreover, the covered entity could retain another party, through a business associate relationship, to conduct the actual health-related marketing, such as mailings or telemarketing, under the covered entity's name. The Department is unable to estimate the cost of these changes because there is no credible data on the extent of current third party marketing practices or the price that third party marketers currently pay for information from covered entities. The effect of the final rule is to change the arrangement of practices to enhance accountability of protected health information by the covered entity and its business associates; however, there is nothing inherently costly in these changes.
Examples of other circumstances in which authorizations are required under the final rule include disclosure of protected health information to an employer for an employment physical, pre-enrollment underwriting for insurance, or the sharing of protected health insurance information by an insurer with an employer. The Department assumes there is no new cost associated with these requirements because providers have said that obtaining authorization under such circumstances is current practice.
To use or disclose psychotherapy notes for most purposes (including for treatment, payment, or health care operations), a covered entity must obtain specific authorization by the individual that is distinct from any authorization for use and disclosure of other protected health information. This is current practice, so there is no new cost associated with this provision.