Under the HIPAA Privacy Rule, an individual has the right to adequate notice of how a covered entity may use and disclose protected health information (PHI) about the individual, as well as his/her rights and the covered entity’s obligations with respect to that information. Thus, a covered entity must develop and provide individuals with a Notice of Privacy Practices (NPP). See 45 C.F.R. § 164.520. Under the Privacy Rule, a covered entity also is required to promptly revise its NPP when there is a material change to any of its privacy practices stated in the NPP to ensure that individuals are aware of their health information privacy protections and rights. In January 2013, the Final Rule brought a number of material changes to the privacy obligations of HIPAA-covered entities, and thus, NPPs must be revised to reflect such changes.
Just a week prior to the September 23, 2013, Final Rule compliance date, the U.S. Department of Health and Human Services Office for Civil Rights (OCR) and the Office of National Coordinator for Health Information Technology (ONC) released model NPPs. Healthcare providers and health plans are encouraged to use the model notices as guidance for updating communications to patients and plan members. The three models include (1) a notice in the form of a booklet; (2) a layered notice with a summary of the information on the first page and full content on following pages; and (3) a notice with the design elements of a booklet, but in a full-page presentation format. A text-only version also is provided for covered entities that wish to use only content.
The model NPPs include the following Final Rule changes:
- Breach notification obligations — a covered entity must include a statement regarding an impacted individual’s rights after a breach of unsecured PHI;
- Description of uses and disclosures requiring authorization, including for:
- Most uses and disclosures of psychotherapy notes;
- Uses and disclosures of PHI for marketing purposes; and
- Disclosures that constitute a sale of PHI.
- Fundraising — before a covered entity contacts a patient for fundraising purposes, it must explain its intentions and inform the patient of the right to opt out of receiving such communications;
- PHI disclosure for underwriting — a health plan that intends to use or disclose PHI for underwriting purposes must include a statement in its NPP that it is prohibited from using or disclosing PHI that is an individual’s genetic information for such purpose; and
- Restrictions on disclosure of PHI to a health plan — a covered entity must abide by an individual’s request to restrict disclosure to a health plan if the disclosure is for payment or healthcare operations and pertains to a healthcare item or service for which the individual has paid out of pocket in full.
Covered entities should check their new NPPs against the model NPPs to confirm compliance with the Final Rule, and revise if necessary.
To ensure that an individual is aware of his or her rights regarding use and disclosure of PHI, a covered entity must make its notice available to any person who requests it, and a covered entity must prominently post and make available its notice on any website it maintains that provides information about its customer services or benefits.