Health Information Privacy Law and Policy

law and policy What Type of Patient Choice Exists Under HIPAA?

Most health care providers must follow the  (Privacy Rule), a federal privacy law that sets a baseline of protection for certain individually identifiable health information (“health information”). 

The Privacy Rule generally permits, but does not require, covered health care providers to give patients the choice as to whether their health information may be disclosed to others for certain key purposes.  These key purposes include treatment, payment, and health care operations.

How Can Patient Choice Be Implemented in Electronic Health Information Exchange (eHIE)?

While it is not required, health care providers may decide to offer patients a choice as to whether their health information may be exchanged electronically, either directly or through a Health Information Exchange Organization (HIE). That is, they may offer an “opt-in” or “opt-out” policy [PDF - 713 KB] or a combination.

Are There Specific Legal Requirements for Opt-In or Opt-Out Policies?

The  does not set out specific steps or requirements for obtaining a patient’s choice whether to participate in eHIE.  However, adequately informing patients of these new models for exchange and giving them the choice whether to participate is one means of ensuring that patients trust these systems.  Providers are therefore encouraged to enable patients to make a “meaningful” [link to Meaningful Consent Overview page] consent choice rather than an uninformed one. 

You can read more about patient choice and eHIE in guidance released by the : 

Are There Privacy Laws that Require Patient Consent?

Yes.  There are some federal and state privacy laws (e.g., 42 CFR Part 2, Title 10) that require health care providers to obtain patients’ written consent before they disclose their health information to other people and organizations, even for treatment.  Many of these privacy laws protect information that is related to health conditions considered “sensitive” by most people.

How Does HIPAA Affect These Other Privacy Laws?

HIPAA created a baseline of privacy protection. It overrides (or “preempts”) other privacy laws that are less protective.  But HIPAA leaves in effect other laws that are more privacy-protective.  Under this legal framework, health care providers and other implementers must continue to follow other applicable federal and state laws that require obtaining patients’ consent before disclosing their health information.

The resources listed below provide links to some federal, state, and organization resources that may be of interest for those setting up eHIE policies in consultation with legal counsel.  Implementers may also want to visit their state’s law and policy sites for additional information.

Federal, State, and Organization Resources about Consent, Personal Choice, and Confidentiality

We encourage providers, HIEs, and other health IT implementers to seek expert advice when evaluating these resources, as privacy laws and policies continually evolve.  The resources are not intended to serve as legal advice or offer recommendations based on an implementer’s specific circumstances.

Federal Law, Regulation, Guidance, and Policy

Health Information in General

  •  – guidance regarding the HIPAA Privacy Rule as it relates to the Choice Principle in the Privacy and Security Framework. 

Sensitive Health Information (e.g., behavioral health information, HIV/AIDS status)

  •  – slides and videos providing an overview of alcohol and drug confidentiality rules, further explanation of SAMHSA FAQs, and supplemental material.
  •  – resources and examples to help providers understand and address patient confidentiality issues, including those related to pediatrics.
  •  – overview of FERPA, HIPAA, and where they may intersect; includes an FAQ section.
  •  – federal rules about consent and confidentiality of patient information as it pertains to federally funded family planning clinics.

Policy

Federal Advisory Committee (FACA) Recommendations

State Law
  • Report on State Law Requirements for Patient Permission to Disclose Health Information [PDF - 1.3 MB] – research findings into how various state laws govern the disclosure of health information.  This report also provides an overview of federal consent laws.
  •  – documentation of the state law requirements for disclosure of health information for treatment purposes within and across state lines.
  •  – tools and resources for states and health care stakeholders to use to decide what level of choice is proper for patients regarding the electronic access, use, and disclosure of their health information.  This also includes tools and resources that states can use to evaluate which, if any, of the interstate legal mechanisms they could successfully employ.
  • Access to Minors’ Health Information [PDF - 229 KB] – section 3.2.6 of this report covers access to minors’ heath information.  It includes a discussion of minors’ ability to consent to disclosure of related health information.
Organizational Policy and Procedures

 

Content last reviewed on September 19, 2018