Comment: Many commenters urged the Department not to create a government database of health information, or a tracking system that would enable the government to track individuals health information.
Response: This regulation does not create such a database or tracking system, nor does it enable future creation of such a database. This regulation describes the ways in which health plans, health care clearinghouses, and certain health care providers may use and disclose identifiable health information with and without the individual's consent.
Comment: Many commenters objected to government access to or control over their health information, which they believe the proposed regulation would provide.
Response: This regulation does not increase current government access to health information. This rule sets minimum privacy standards. It does not require disclosure of health information, other than to the subject of the records or for enforcement of this rule. Health plans and health care providers are free to use their own professional ethics and judgement to adopt stricter policies for disclosing health information.
Comment: Some commenters viewed the NPRM as creating fewer hurdles for government access to protected health information than for access to protected health information by private organizations. Some health care providers commented that the NPRM would impose substantial new restrictions on private sector use and disclosure of protected health information, but would make government access to protected health information easy. One consumer advocacy group made the same observation.
Response: We acknowledge that many of the national priority purposes for which we allow disclosure of protected health information without consent or authorization are for government functions, and that many of the governmental recipients of such information are not governed by this rule. It is the role of government to undertake functions in the broader public interest, such as public health activities, law enforcement, identification of deceased individuals through coroners' offices, and military activities. It is these public purposes which can sometimes outweigh an individual's privacy interest. In this rule, we specify the circumstances in which that balance is tipped toward the public interest with respect to health information. We discuss the rationale behind each of these permitted disclosures in the relevant preamble sections below.