Comment: Many commenters generally supported our proposed definition of designated record set. Commenters suggested different methods for narrowing the information accessible to individuals, such as excluding information obtained without face-to-face interaction (e.g., phone consultations). Other commenters recommended broadening the information accessible to individuals, such as allowing access to "the entire medical record," not just a designated record set. Some commenters advocated for access to all information about individuals. A few commenters generally supported the provision but recommended that consultation and interpretative assistance be provided when the disclosure may cause harm or misunderstanding.
Response: We believe individuals should have a right to access any protected health information that may be used to make decisions about them and modify the final rule to accomplish this result. This approach facilitates an open and cooperative relationship between individuals and covered health care providers and health plans and allows individuals fair opportunities to know what health information may be used to make decisions about them. We list certain records that are always part of the designated record set. For covered providers these are the medical record and billing record. For health plans these are the enrollment, payment, claims adjudication, and case or medical management records. The purpose of these specified records is management of the accounts and health care of individuals. In addition, we include in the designated record set to which individuals have access any record used, in whole or in part, by or for the covered entity to make decisions about individuals. Only protected health information that is in a designated record set is covered. Therefore, if a covered provider has a phone conversation, information obtained during that conversation is subject to access only to the extent that it is recorded in the designated record set.
We do not require a covered entity to provide access to all individually identifiable health information, because the benefits of access to information not used to make decisions about individuals is limited and is outweighed by the burdens on covered entities of locating, retrieving, and providing access to such information. Such information may be found in many types of records that include significant information not relevant to the individual as well as information about other persons. For example, a hospital's peer review files that include protected health information about many patients but are used only to improve patient care at the hospital, and not to make decisions about individuals, are not part of that hospital's designated record sets.
We encourage but do not require covered entities to provide interpretive assistance to individuals accessing their information, because such a requirement could impose administrative burdens that outweigh the benefits likely to accrue.
The importance to individuals of having the right to inspect and copy information about them is supported by a variety of industry groups and is recognized in current state and federal law. The July 1977 Report of the Privacy Protection Study Commission recommended that individuals have access to medical records and medical record information. 2 The Privacy Act (5 U.S.C. 552a) requires government agencies to permit individuals to review records and have a copy made in a form comprehensible to the individual. In its report "Best Principles for Health Privacy," the Health Privacy Working Group recommended that individuals should have the right to access information about them.3 The National Association of Insurance Commissioners' Health Information Privacy Model Act establishes the right of an individual to examine or receive a copy of protected health information in the possession of the carrier or a person acting on behalf of the carrier.
Many states also establish a right for individuals to access health information about them. For example, Alaska law (AK Code 18.23.005) entitles patients "to inspect and copy any records developed or maintained by a health care provider or other person pertaining to the health care rendered to the patient." Hawaii law (HRS section 323C-11) requires health care providers and health plans, among others, to permit individuals to inspect and copy protected health information about them. Many other states have similar provisions.
Industry and standard-setting organizations also have developed policies to enable individual access to health information. The National Committee for Quality Assurance and the Joint Commission on Accreditation of Healthcare Organizations issued recommendations stating, "Patients' confidence in the protection of their information requires that they have the means to know what is contained in their records. The opportunity for patients to review their records will enable them to correct any errors and may provide them with a better understanding of their health status and treatment."4 Standards of the American Society for Testing and Materials state, "The patient or his or her designated personal representative has access rights to the data and information in his or her health record and other health information databases except as restricted by law. An individual should be able to inspect or see his or her health information or request a copy of all or part of the health information, or both." 5 We build on this well-established principle in this final rule.
Comment: Several commenters advocated for access to not only information that has already been used to make decisions, but also information that may be used to make decisions. Other commenters believed accessible information should be more limited; for example, some commenters argued that accessible information should be restricted to only information used to make health care decisions.
Response: We agree that it is desirable that individuals have access to information reasonably likely to be used to make decisions about them. On the other hand, it is desirable that the category of records covered be readily ascertainable by the covered entity. We therefore define "designated record set" to include certain categories of records (a provider's medical record and billing record, the enrollment records, and certain other records maintained by a health plan) that are normally used, and are reasonably likely to be used, to make decisions about individuals. We also add a category of other records that are, in fact, used, in whole or in part, to make decisions about individuals. This category includes records that are used to make decisions about any individuals, whether or not the records have been used to make a decision about the particular individual requesting access.
We disagree that accessible information should be restricted to information used to make health care decisions, because other decisions by covered entities can also affect individuals' interests. For example, covered entities make financial decisions about individuals, such as whether an individual's deductible has been met. Because such decisions can significantly affect individuals' interests, we believe they should have access to any protected health information included in such records.
Comment: Some commenters believed the rule should use the term "retrievable" instead of "retrieved" to describe information accessible to individuals. Other commenters suggested that the rule follow the Privacy Act's principle of allowing access only when entities retrieve records by individual identifiers. Some commenters requested clarification that covered entities are not required to maintain information by name or other patient identifier.
Response: We have modified the proposed definition of the designated record set to focus on how information is used, not how it is retrieved. Information may be retrieved or retrievable by name, but if it is never used to make decisions about any individuals, the burdens of requiring a covered entity to find it and to redact information about other individuals outweigh any benefits to the individual of having access to the information. When the information might be used to affect the individual's interests, however, that balance changes and the benefits outweigh the burdens. We confirm that this regulation does not require covered entities to maintain any particular record set by name or identifier.
Comment: A few commenters recommended denial of access for information relating to investigations of claims, fraud, and misrepresentations. Many commenters suggested that sensitive, proprietary, and legal documents that are "typical state law privileges" be excluded from the right to access. Specific suggestions for exclusion, either from the right of access or from the definition of designated record set, include quality assurance activities, information related to medical appeals, peer review and credentialing, attorney-client information, and compliance committee activities. Some commenters suggested excluding information already supplied to individuals on previous requests and information related to health care operations. However, some commenters felt that such information was already excluded from the definition of designated record set. Other commenters requested clarification that this provision will not prevent patients from getting information related to medical malpractice.
Response: We do not agree that records in these categories are never used to affect the interests of individuals. For example, while protected health information used for peer review and quality assurance activities typically would not be used to make decisions about individuals, and, thus, typically would not be part of a designated record set, we cannot say that this is true in all cases. We design this provision to be sufficiently flexible to work with the varying practices of covered entities.
The rule addresses several of these comments by excepting from the access provisions (§ 164.524) information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding. Similarly, nothing in this rule requires a covered entity to divulge information covered by physician-patient or similar privilege. Under the access provisions, a covered entity may redact information in a record about other persons or information obtained under a promise of confidentiality, prior to releasing the information to the individual. We clarify that nothing in this provision would prevent access to information needed to prosecute or defend a medical malpractice action; the rules of the relevant court determine such access.
We found no persuasive evidence to support excluding information already supplied to individuals on previous requests. The burdens of tracking requests and the information provided pursuant to requests outweigh the burdens of providing the access requested. A covered entity may, however, discuss the scope of the request for access with the individual to facilitate the timely provision of access. For example, if the individual agrees, the covered entity could supply only the information created or received since the date access was last granted.