Thursday, March 26, 2020

COVID: Office for Civil Rights Issues Guidance on How Covered Entities May Disclose PHI About an Individual Infected/Exposed to COVID-19

Written by Bob Coffield, Flahety Sensabaugh Bonasso PLLC

On March 24, 2020, the Office for Civil Rights (OCR), U.S Department of Health and Human Services issued the following guidance document related to the ongoing COVID crisis, COVID-19 and HIPAA: Disclosures to law enforcement, paramedics,other first responders and public health authorities.

The OCR guidance indicates that covered entities (hospitals, physicians, long term care facilities, home health agencies, and other providers) may disclose protected health information (PHI) about an individual who has been infected with or exposed to COVID-19 to law enforcement, paramedics, other first responders, and public health authorities in compliance with the Health Insurance Portability and Accountability Act of 1996 under the Privacy Rule  (HIPAA). The PHI can be disclosed by the covered entity without first obtaining the individual's HIPAA authorization. 

The guidance explains the circumstances under which a covered entity may disclose PHI such as the name or other identifying information about individuals, without their HIPAA authorization, and provides examples including:
  • When needed to provide treatment;
  • When required by law;
  • When first responders may be at risk for an infection; and
  • When disclosure is necessary to prevent or lessen a serious and imminent threat.
This guidance clarifies the regulatory permissions that covered entities may use to disclose PHI to first responders and others so they can take extra precautions or use personal protective equipment. The guidance also includes a reminder that generally, covered entities must make reasonable efforts to limit the PHI used or disclosed to that which is the "minimum necessary" to accomplish the purpose for the disclosure. 

Examples outlined in the guidance include the following: 
  • HIPAA permits a covered skilled nursing facility to disclose PHI about an individual who has COVID-19 to emergency medical transport personnel who will provide treatment while transporting the individual to a hospital’s emergency department. 45 CFR 164.502(a)(1)(ii); 45 CFR 164.506(c)(2).
  • HIPAA permits a covered entity, such as a hospital, to disclose PHI about an individual who tests positive for COVID-19 in accordance with a state law requiring the reporting of confirmed or suspected cases of infectious disease to public health officials. 45 CFR 164.512(a). 
  • HIPAA permits a covered entity to disclose PHI to a public health authority (such as the Centers for Disease Control and Prevention (CDC), or state, tribal, local, and territorial public health departments) that is authorized by law to collect or receive PHI for the purpose of preventing or controlling disease, injury, or disability, including for public health surveillance, public health investigations, and public health interventions. 45 CFR 164.512(b)(1)(i); see also 45 CFR 164.501 (providing the definition of “public health authority”).
  • HIPAA permits a covered county health department, in accordance with a state law, to disclose PHI to a police officer or other person who may come into contact with a person who tested positive for COVID-19, for purposes of preventing or controlling the spread of COVID-19. 45 CFR 164.512(b)(1)(iv).
  • HIPAA permits a covered entity, consistent with applicable law and standards of ethical conduct, to disclose PHI about individuals who have tested positive for COVID-19 to fire department personnel, child welfare workers, mental health crisis services personnel, or others charged with protecting the health or safety of the public if the covered entity believes in good faith that the disclosure of the information is necessary to prevent or minimize the threat of imminent exposure to such personnel in the discharge of their duties. 45 CFR 164.512(j)(1).
  • HIPAA permits a covered entity, such as a physician, located at a prison medical facility to share an inmate’s positive COVID-19 test results with correctional guards at the facility for the health and safety of all people at the facility. 45 CFR 164.512(k)(5).
  • A covered entity, such as a hospital, may provide a list of the names and addresses of all individuals it knows to have tested positive, or received treatment, for COVID-19 to an EMS dispatch for use on a per-call basis. The EMS dispatch (even if it is a covered entity) would be allowed to use information on the list to inform EMS personnel who are responding to any particular emergency call so that they can take extra precautions or use personal protective equipment (PPE). Under this example, a 911 call center that is a covered entity should only disclose the minimum amount of information that the officer needs to take appropriate precautions to minimize the risk of exposure. Depending on the circumstances, the minimum necessary PHI may include, for example, an individual’s name and the result of the screening.
For more information on HIPAA and COVID-19, see OCR's February 2020 Bulletin, Office for Civil Rights, U.S. Department of Health and Human ServicesBULLETIN: HIPAA Privacy and Novel Coronavirus.

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