In the NPRM we proposed to allow covered entities to disclose protected health information without individual authorization to coroners and medical examiners, consistent with applicable law, for identification of a deceased person or to determine cause of death.
In § 164.512(g) of the final rule, we permit covered entities to disclose protected health information to coroners, medical examiners, and funeral directors as part of a new paragraph on disclosures related to death. The final rule retains the NPRM approach regarding disclosure of protected health information to coroners and medical examiners, and it allows the information disclosed to coroners and medical examiners to include identifying information about other persons that may be included in the individual's medical record. Redaction of such names is not required prior to disclosing the individual's record to coroners or medical examiners. Since covered entities may also perform duties of a coroner or medical examiner, where a covered entity is itself a coroner or medical examiner, the final rule permits the covered entity to use protected health information in all cases in which it is permitted to disclose such information for its duties as a coroner or medical examiner.
Section 164.512(g) allows covered entities to disclose protected health information to funeral directors, consistent with applicable law, as necessary to carry out their duties with respect to a decedent. For example, the rule allows hospitals to disclose to funeral directors the fact that an individual has donated an organ or tissue, because this information has implications for funeral home staff duties associated with embalming. When necessary for funeral directors to carry out their duties, covered entities may disclose protected health information prior to and in reasonable anticipation of the individual's death.
Whereas the NPRM did not address the issue of disclosure of psychotherapy notes without individual authorization to coroners and medical examiners, the final rule allows such disclosures.
The NPRM did not include in proposed § 164.510(e) language stating that where a covered entity was itself a coroner or medical examiner, it could use protected health information for the purposes of engaging in a coroner's or a medical examiner's activities. The final rule includes such language to address situations such as where a public hospital performs medical examiner functions. In such cases, the hospital's on-staff coroners can use protected health information while conducting post-mortem investigations, and other hospital staff can analyze any information associated with these investigations, for example, as part of the process of determining the cause of the individual's death.