In the NPRM, we expressed concern about the coercive nature of consents currently obtained by providers and plans relating to the use and disclosure of health information. We also expressed concern about the lack of information available to the patient during the process, and the fact that patients often were not even presented with a copy of the consent that they have signed. These and other concerns led us to propose that covered entities be permitted to use and disclose protected health information for treatment, payment and health care operations without the express consent of the subject individual.
In the final rule, we alter our proposed approach and require, in most instances, that health care providers who have a direct treatment relationship with their patients obtain the consent of their patients to use and disclose protected health information for treatment, payment and health care operations. While our concern about the coerced nature of these consents remains, many comments that we received from individuals, health care professionals, and organizations that represent them indicated that both patients and practitioners believe that patient consent is an important part of the current health care system and should be retained.
Providing and obtaining consent clearly has meaning for patients and practitioners. Patient advocates argued that the act of signing focuses the patient's attention on the substance of the transaction and provides an opportunity for the patient to ask questions about or seek modifications in the provider's practices. Many health care practitioners and their representatives argued that seeking a patient's consent to disclose confidential information is an ethical requirement that strengthens the physician-patient relationship. Both practitioners and patients argued that the approach proposed in the NPRM actually reduced patient protections by eliminating the opportunity for patients to agree to how their confidential information would be used and disclosed.
While we believe that the provisions in the NPRM that provided for detailed notice to the patient and the right to request restrictions would have provided an opportunity for patients and providers to discuss and negotiate over information practices, it is clear from the comments that many practitioners and patients believe the approach proposed in the NPRM is not an acceptable replacement for the patient providing consent. To encourage a more informed interaction between the patient and the provider during the consent process, the final rule requires that the consent form that is presented to the patient be accompanied by a notice that contains a detailed discussion of the provider's health information practices. The consent form must reference the notice and also must inform the patient that he or she has the right to ask the health care provider to request certain restrictions as to how the information of the patient will be used or disclosed. Our goal is to provide an opportunity for and to encourage more informed discussions between patients and providers about how protected health information will be used and disclosed within the health care system.
We considered and rejected other approaches to consent, including those that involved individuals providing a global consent to uses and disclosures when they sign up for insurance. While such approaches do require the patient to provide consent, it is not really an informed one or a voluntary one. It is also unclear how a consent obtained at the enrollment stage would be meaningfully communicated to the many providers who create the health information in the first instance. The ability to negotiate restrictions or otherwise have a meaningful discussion with the front-line provider would be independent of, and potentially in conflict with, the consent obtained at the enrollment stage. In addition, employers today are moving toward simplified enrollment forms, using check-off boxes and similar devices. The opportunity for any meaningful consideration or interaction at that point is slight. For these and other reasons, we decided that, to the extent a consent can accomplish the goal sought by individuals and providers, it must be focused on the direct interaction between an individual and provider.
The comments and fact-finding indicate that our approach will not significantly change the administrative aspect of consent as it exists today. Most direct treatment providers today obtain some type of consent for some uses and disclosures of health information. Our regulation will ensure that those consents cover the routine uses and disclosures of health information, and provide an opportunity for individuals to obtain further information and have further discussion, should they so desire.