Section 164.510 of the NPRM proposed the uses and disclosures of protected health information that covered entities could make for purposes other than treatment, payment, or health care operations and for which an individual authorization would not have been required. These allowable uses and disclosures were designed to permit and promote key national health care priorities, and to promote the smooth operation of the health care system. In each of these areas, the proposal permitted, but would not have required, covered entities to use or disclose protected health information.
We proposed to require covered entities to obtain the individual's oral agreement before making a disclosure to a health care facility's directory or to the individual's next-of-kin or to another person involved in the individual's health care. Because there is an expectation in these two areas that individuals will have some input into a covered entity's decision to use or disclose protected health information, we decided to place disclosures to health facility directories and to persons involved in an individual's care in a separate section. In the final rule, requirements regarding disclosure of protected health information for facility directories and to others involved in an individual's care are included in § 164.510(a) and § 164.510(b), respectively. In the final rule, we include in § 164.510(b) provisions to address a type of disclosure not addressed in the NPRM: disclosures to entities providing relief and assistance in disasters such as floods, fires, and terrorist attacks. Requirements for most of the remaining categories of disclosures addressed in proposed § 164.510 of the NPRM are included in a new § 164.512 of the final rule, as discussed below.
Section 164.510 of the final rule addresses situations in which the interaction between the covered entity and the individual is relatively informal and agreements are made orally, without written authorizations for use or disclosure. In general, under the final rule, to disclose or use protected health information for these purposes, covered entities must inform individuals in advance and must provide a meaningful opportunity for the individual to prevent or restrict the disclosure. In exceptional circumstances, where even this informal discussion cannot practicably take place, covered entities are permitted to make decisions regarding disclosure or use based on the exercise of professional judgment of what is in the individual's best interest.