The NPRM proposed to allow covered health care providers to disclose through an inpatient facility's directory a patient's name, location in the facility, and general health condition, provided that the individual had agreed to the disclosure. The NPRM would have allowed this agreement to be oral. Pursuant to the NPRM, when making decisions about incapacitated individuals, a covered health care provider could have disclosed such information at the entity's discretion and consistent with good medical practice and any prior expressions of patient preference of which the covered entity was aware.
The preamble to the NPRM listed several factors that we encouraged covered entities to take into account when making decisions about whether to include an incapacitated patient's information in the directory. These factors included: (1) whether disclosing that an individual is in the facility could reasonably cause harm or danger to the individual (e.g., if it appeared that an unconscious patient had been abused and disclosing the information could give the attacker sufficient information to seek out the person and repeat the abuse); (2) whether disclosing a patient's location within a facility implicitly would give information about the patient's condition (e.g., whether a patient's room number revealed that he or she was in a psychiatric ward); (3) whether it was necessary or appropriate to give information about patient status to family or friends (e.g., if giving information to a family member about an unconscious patient could help a physician administer appropriate medications); and (4) whether an individual had, prior to becoming incapacitated, expressed a preference not to be included in the directory. The preamble stated that if a covered entity learned of such a preference, it would be required to act in accordance with the preference.
The preamble to the NPRM said that when individuals entered a facility in an incapacitated state and subsequently gained the ability to make their own decisions, health facilities should ask them within a reasonable time period for permission to include their information in the facility's directory.
In the final rule, we change the NPRM's opt-in authorization requirement to an opt-out approach for inclusion of patient information in a health care facility's directory. The final rule allows covered health care providers - which in this case are health care facilities - to include patient information in their directory only if: (1) they inform incoming patients of their policies regarding the directory; (2) they give patients a meaningful opportunity to opt out of the directory listing or to restrict some or all of the uses and disclosures that can be included in the directory; and (3) the patient does not object to being included in the directory. A patient must be allowed, for example, to have his or her name and condition included in the directory while not having his or her religious affiliation included. The facility's notice and the individual's opt-out or restriction may be oral.
Under the final rule, subject to the individual's right to object, or known prior expressed preferences, a covered health care provider may disclose the following information to persons who inquire about the individual by name: (1) the individual's general condition in terms that do not communicate specific medical information about the individual (e.g., fair, critical, stable, etc.); and (2) location in the facility. This approach represents a slight change to the NPRM, which did not require members of the general public to ask for a patient by name in order to obtain directory information and which, in fact, would have allowed covered entities to disclose the individual's name as part of directory information.
Under the final rule, we also establish provisions for disclosure of directory information to clergy that are slightly different from those which apply for disclosure to the general public. Subject to the individual's right to object or restrict the disclosure, the final rule permits a covered entity to disclose to a member of the clergy: (1) the individual's name; (2) the individual's general condition in terms that do not communicate specific medical information about the individual; (3) the individual's location in the facility; and (4) the individual's religious affiliation. A disclosure of directory information may be made to members of the clergy even if they do not inquire about an individual by name. We note that the rule in no way requires a covered health care provider to inquire about the religious affiliation of an individual, nor must individuals supply that information to the facility. Individuals are free to determine whether they want their religious affiliation disclosed to clergy through facility directories.
We believe that allowing clergy to access patient information pursuant to this section does not violate the Establishment Clause of the First Amendment, which prohibits laws "respecting an establishment of religion." Courts traditionally turn to the Lemon test when evaluating laws that might raise Establishment Clause concerns. A law does not violate the Clause if it has a secular purpose, is not primarily to advance religion, and does not cause excessive government entanglement with religion. The privacy regulation passes this test because its purpose is to protect the privacy of individuals - regardless of their religious affiliation - and it does not cause excessive government entanglement.
More specifically, although this section provides a special rule for members of the clergy, it does so as an accommodation to patients who seek to engage in religious conduct. For example, restricting the disclosure of an individual's religious affiliation, room number, and health status to a priest could cause significant delay that would inhibit the ability of a Catholic patient to obtain sacraments provided during the last rites. We believe this accommodation does not violate the Establishment Clause, because it avoids a government-imposed restriction on the disclosure of information that could disproportionately affect the practice of religion. In that way, it is no different from accommodations upheld by the U.S. Supreme Court, such as exceptions to laws banning the use of alcohol in religious ceremonies.
The final rule expands the circumstances under which health care facilities can disclose specified health information to the patient directory without the patient's agreement. Besides allowing such disclosures when patients are incapacitated, as the NPRM would have allowed, the final rule allows such disclosures in emergency treatment circumstances. For example, when a patient is conscious and capable of making a decision, but is so seriously injured that asking permission to include his or her information in the directory would delay treatment such that the patient's health would be jeopardized, health facilities can make decisions about including the patient's information in the directory according to the same rules that apply when the patient is incapacitated. The final rule modifies the NPRM requirements for cases in which an incapacitated patient is admitted to a health care facility. Whereas the NPRM would have allowed health care providers to disclose an incapacitated patient's information to the facility's directory "at its discretion and consistent with good medical practice and any prior expressions of preference of which the covered entity [was] aware," the final rule states that in these situations (and in other emergency treatment circumstances), covered health care providers must make the decision on whether to include the patient's information in the facility's directory in accordance with professional judgment as to the patient's best interest. In addition, when making decisions involving incapacitated patients and patients in emergency situations, covered health care providers may decide to include some portions of the patient's information (such as name) but not other information (such as location in the facility) in order to protect patient interests.
As in the preamble to the NPRM, we encourage covered health care providers to take into account the four factors listed above when making decisions about whether to include patient information in a health care facility's directory when patients are incapacitated or are in an emergency treatment circumstance. In addition, we retain the requirement stated in the preamble of the NPRM that if a covered health care provider learns of an incapacitated patient's prior expression of preference not to be included in a facility's directory, the facility must not include the patient's information in the directory. For cases involving patients admitted to a health care facility in an incapacitated or emergency treatment circumstance who during the course of their stay become capable of decisionmaking, the final rule takes an approach similar to that described in the NPRM. The final rule states that when an individual who was incapacitated or in an emergency treatment circumstance upon admission to an inpatient facility and whose condition stabilizes such that he or she is capable of decisionmaking, a covered health care provider must, when it becomes practicable, inform the individual about its policies regarding the facility's directory and provide the opportunity to object to the use or disclosure of protected health information about themselves for the directory.