Under the HIPAA Privacy Rule, individuals are currently entitled to receive an accounting of disclosures made by a covered entity of their Protected Health Information (“PHI”). The covered entity must provide such accounting for the six years preceding such request (see 45 C.F.R. § 164.528). Historically, this right has been defined broadly, but has always been subject to a number of exceptions, including for disclosures of PHI for treatment, payment, and health care operations (“TPO”) purposes. In short, under the TPO exception, the covered entity was not responsible for providing individuals with information regarding disclosures of their PHI if such disclosures were made in connection with TPO disclosures (see 45 C.F.R. § 164.528(a)(1)(i)). The Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) granted broader rights to individuals with respect to their PHI, including expanding the rights of individuals to receive an accounting of TPO disclosures made through an electronic health record (“EHR”), but has limited the time period for maintaining documentation of such disclosures to the three years prior to the date on which the accounting is requested (see 42 U.S.C. § 17935(c)).
At the time the accounting requirement was implemented, most records were maintained in paper and not electronic files. Now that electronic recordkeeping is the norm, disclosures are typically more frequent, and tracking them requires reliance on individuals to document properly the disclosure. In addition, electronic tracking of disclosures places increased burden on the underlying information system to store properly and separately record disclosures. HHS has proposed a new rule described below that purportedly seeks to address these difficulties while still allowing individuals access to broader information regarding how their PHI is used and disclosed.
Revised Right to Accounting of Disclosures
On May 31, 2011, HHS published a proposed rule that would modify and expand individuals’ rights to receive accountings of disclosures generally as follows:
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