§17935 — Title 42 The Public Health and Welfare | U.S. Code

Summary

Covered health care providers and plans must follow rules about when and how they share your health information. If you ask them to stop sharing certain health details with your health plan for payment or business reasons (not for treatment), they must agree when the info is only about a service you paid for fully out of pocket. When they use or share health information, they must limit what they send to a smaller set of data or only the minimum needed to do the job. The Department of Health must give guidance on what “minimum necessary” means no later than 18 months after February 17, 2009, and until that guidance takes effect the current limit rules apply. If a doctor or plan uses an electronic health record (EHR), you can get a list of disclosures made from that EHR for only the three years before your request. The government must decide what details about each disclosure EHRs must collect, and covered entities must either include disclosures made by their business associates in the accounting or give you a list of those business associates and how to contact them. The rules about keeping track of EHR disclosures start on dates tied to whether the EHR was acquired by January 1, 2009, and other set deadlines (for example, January 1, 2014; January 1, 2011), with possible later start dates but not later than 2016 or 2013 in certain cases. A covered entity or its business associate must not accept money or other payment for your protected health information unless you gave a valid written permission that says whether the buyer can later sell it. There are listed exceptions, including certain public health work, some research (if the price only covers preparing and sending the data), treatment, certain health operations, payments to a business associate under a contract, and giving you a copy of your information. The Health Department must write rules to carry out these limits within 18 months after February 17, 2009, and those payment rules take effect six months after the final rules are published. If you ask for your records from an EHR, you have the right to get an electronic copy and can ask it be sent to someone you name. Any fee for an electronic copy can only cover the provider’s actual labor to make the copy.

Title 42, §17935

The Public Health and Welfare — Source: USLM XML via OLRC

(a)In the case that an individual requests under paragraph (a)(1)(i)(A) of section 164.522 of title 45, Code of Federal Regulations, that a covered entity restrict the disclosure of the protected health information of the individual, notwithstanding paragraph (a)(1)(ii) of such section, the covered entity must comply with the requested restriction if—

(1)except as otherwise required by law, the disclosure is to a health plan for purposes of carrying out payment or health care operations (and is not for purposes of carrying out treatment); and

(2)the protected health information pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full.

(b)(1)(A)Subject to subparagraph (B), a covered entity shall be treated as being in compliance with section 164.502(b)(1) of title 45, Code of Federal Regulations, with respect to the use, disclosure, or request of protected health information described in such section, only if the covered entity limits such protected health information, to the extent practicable, to the limited data set (as defined in section 164.514(e)(2) of such title) or, if needed by such entity, to the minimum necessary to accomplish the intended purpose of such use, disclosure, or request, respectively.

(B)Not later than 18 months after February 17, 2009, the Secretary shall issue guidance on what constitutes “minimum necessary” for purposes of subpart E of part 164 of title 45, Code of Federal Regulation.11 So in original. Probably should be “Regulations.” In issuing such guidance the Secretary shall take into consideration the guidance under section 17953(c) of this title and the information necessary to improve patient outcomes and to detect, prevent, and manage chronic disease.

(C)Subparagraph (A) shall not apply on and after the effective date on which the Secretary issues the guidance under subparagraph (B).

(2)For purposes of paragraph (1), in the case of the disclosure of protected health information, the covered entity or business associate disclosing such information shall determine what constitutes the minimum necessary to accomplish the intended purpose of such disclosure.

(3)The exceptions described in section 164.502(b)(2) of title 45, Code of Federal Regulations, shall apply to the requirement under paragraph (1) as of the effective date described in section 13423 22 See References in Text note below. in the same manner that such exceptions apply to section 164.502(b)(1) of such title before such date.

(4)Nothing in this subsection shall be construed as affecting the use, disclosure, or request of protected health information that has been de-identified.

(c)(1)In applying section 164.528 of title 45, Code of Federal Regulations, in the case that a covered entity uses or maintains an electronic health record with respect to protected health information—

(A)the exception under paragraph (a)(1)(i) of such section shall not apply to disclosures through an electronic health record made by such entity of such information; and

(B)an individual shall have a right to receive an accounting of disclosures described in such paragraph of such information made by such covered entity during only the three years prior to the date on which the accounting is requested.

(2)The Secretary shall promulgate regulations on what information shall be collected about each disclosure referred to in paragraph (1), not later than 6 months after the date on which the Secretary adopts standards on accounting for disclosure described in the 33 So in original. section 300jj–12(b)(2)(B)(iv) of this title, as added by section 13101.2 Such regulations shall only require such information to be collected through an electronic health record in a manner that takes into account the interests of the individuals in learning the circumstances under which their protected health information is being disclosed and takes into account the administrative burden of accounting for such disclosures.

(3)In response to an 44 So in original. Probably should be “a”. request from an individual for an accounting, a covered entity shall elect to provide either an—

(A)accounting, as specified under paragraph (1), for disclosures of protected health information that are made by such covered entity and by a business associate acting on behalf of the covered entity; or

(B)accounting, as specified under paragraph (1), for disclosures that are made by such covered entity and provide a list of all business associates acting on behalf of the covered entity, including contact information for such associates (such as mailing address, phone, and email address).

(4)(A)In the case of a covered entity insofar as it acquired an electronic health record as of January 1, 2009, paragraph (1) shall apply to disclosures, with respect to protected health information, made by the covered entity from such a record on and after January 1, 2014.

(B)In the case of a covered entity insofar as it acquires an electronic health record after January 1, 2009, paragraph (1) shall apply to disclosures, with respect to protected health information, made by the covered entity from such record on and after the later of the following:

(i)January 1, 2011; or

(ii)the date that it acquires an electronic health record.

(C)The Secretary may set an effective date that is later that 55 So in original. Probably should be “than”. the date specified under subparagraph (A) or (B) if the Secretary determines that such later date is necessary, but in no case may the date specified under—

(i)subparagraph (A) be later than 2016; or

(ii)subparagraph (B) be later than 2013.

(d)(1)Except as provided in paragraph (2), a covered entity or business associate shall not directly or indirectly receive remuneration in exchange for any protected health information of an individual unless the covered entity obtained from the individual, in accordance with section 164.508 of title 45, Code of Federal Regulations, a valid authorization that includes, in accordance with such section, a specification of whether the protected health information can be further exchanged for remuneration by the entity receiving protected health information of that individual.

(2)Paragraph (1) shall not apply in the following cases:

(A)The purpose of the exchange is for public health activities (as described in section 164.512(b) of title 45, Code of Federal Regulations).

(B)The purpose of the exchange is for research (as described in section 164.501 and 164.512(i) of title 45, Code of Federal Regulations) and the price charged reflects the costs of preparation and transmittal of the data for such purpose.

(C)The purpose of the exchange is for the treatment of the individual, subject to any regulation that the Secretary may promulgate to prevent protected health information from inappropriate access, use, or disclosure.

(D)The purpose of the exchange is the health care operation specifically described in subparagraph (iv) of paragraph (6) of the definition of healthcare operations in section 164.501 of title 45, Code of Federal Regulations.

(E)The purpose of the exchange is for remuneration that is provided by a covered entity to a business associate for activities involving the exchange of protected health information that the business associate undertakes on behalf of and at the specific request of the covered entity pursuant to a business associate agreement.

(F)The purpose of the exchange is to provide an individual with a copy of the individual’s protected health information pursuant to section 164.524 of title 45, Code of Federal Regulations.

(G)The purpose of the exchange is otherwise determined by the Secretary in regulations to be similarly necessary and appropriate as the exceptions provided in subparagraphs (A) through (F).

(3)Not later than 18 months after February 17, 2009, the Secretary shall promulgate regulations to carry out this subsection. In promulgating such regulations, the Secretary—

(A)shall evaluate the impact of restricting the exception described in paragraph (2)(A) to require that the price charged for the purposes described in such paragraph reflects the costs of the preparation and transmittal of the data for such purpose, on research or public health activities, including those conducted by or for the use of the Food and Drug Administration; and

(B)may further restrict the exception described in paragraph (2)(A) to require that the price charged for the purposes described in such paragraph reflects the costs of the preparation and transmittal of the data for such purpose, if the Secretary finds that such further restriction will not impede such research or public health activities.

(4)Paragraph (1) shall apply to exchanges occurring on or after the date that is 6 months after the date of the promulgation of final regulations implementing this subsection.

(e)In applying section 164.524 of title 45, Code of Federal Regulations, in the case that a covered entity uses or maintains an electronic health record with respect to protected health information of an individual—

(1)the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific;

(2)if the individual makes a request to a business associate for access to, or a copy of, protected health information about the individual, or if an individual makes a request to a business associate to grant such access to, or transmit such copy directly to, a person or entity designated by the individual, a business associate may provide the individual with such access or copy, which may be in an electronic form, or grant or transmit such access or copy to such person or entity designated by the individual; and

(3)notwithstanding paragraph (c)(4) of such section, any fee that the covered entity may impose for providing such individual with a copy of such information (or a summary or explanation of such information) if such copy (or summary or explanation) is in an electronic form shall not be greater than the entity’s labor costs in responding to the request for the copy (or summary or explanation).

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 13423, referred to in subsec. (b)(3), means section 13423 of div. A of Pub. L. 111–5, which is set out as an

Effective Date

note under section 17931 of this title. section 300jj–12(b)(2)(B)(iv) of this title, as added by section 13101, referred to in subsec. (c)(2), means section 300jj–12(b)(2)(B)(iv) of this title as added by section 13101 of div. A of Pub. L. 111–5. section 300jj–12 of this title was repealed by Pub. L. 114–255, div. A, title IV, § 4003(e)(1), Dec. 13, 2016, 130 Stat. 1168. Similar provisions as pertaining to the HIT Advisory Committee are contained in section 300jj–12(b)(2)(B)(ii) of this title as enacted by Pub. L. 114–255.

Amendments

2016—Subsec. (e)(2), (3). Pub. L. 114–255 added par. (2) and redesignated former par. (2) as (3).

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of Pub. L. 111–5, set out as a note under section 17931 of this title.

§17935 Restrictions on Certain Disclosures and Sales of Health Information; Accounting of Certain Protected Health Information Disclosures; Access to Certain Information in Electronic Format

Summary

Title 42, §17935

Notes & Related Subsidiaries

Editorial Notes

References in Text

Effective Date

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Citations & Metadata