Under the final rule, a covered health care provider with direct treatment relationships must obtain an individual's consent for use or disclosure of protected health information for treatment, payment, or health care operations. Covered providers with indirect treatment relationships and health plans may obtain such consent if they so choose. Providers and health plans that seek consent under this rule can condition treatment or enrollment upon provision of such consent. Based on public comments and discussions with a wide array of health care providers, it is apparent that most currently obtain written consent for use and disclosure of individually identifiable health information for payment. Under the final rule, they will have to obtain consent for treatment and health care operations, as well, but this may entail only minor changes in the language of the consent to incorporate these other categories and to conform to the rule.
Although the Department was unable to obtain any systematic data, the anecdotal evidence suggests that most non-hospital providers and virtually all hospitals follow this practice. For the cost analysis, the Department assumes that 90 percent of the non-hospital providers and all hospitals currently obtain some consent for use and disclosure of individually identifiable health information. For providers that currently obtain written consent, there is only a nominal cost for changing the language on the document to conform to the rule. For this activity, we assumed $0.05 cost per document for revising existing consent documents.
For the ten percent of treating providers who currently do not obtain consent, there is the cost of creating consent documents (which will be standardized), which is also assumed to be $0.05 per document. It is assumed that all providers required to obtain consent under the rule will do so upon the first visit, so there will be no mailing cost. For non-hospital providers, we assume the consent will be maintained in paper form, which is what most providers currently do (electronic form, if available, is cheaper to maintain). There is no new cost for records maintenance because the consent will be kept in active files (paper or electronic).
The initial cost of the consent requirement is estimated to be $166 million. Using our standard assumptions for patient growth, the total costs for the ten years is estimated to be $227 million.