Pabrai Blogs on Uses and Disclosures – Decedent - Updates in HITECH NPRM

The HITECH NPRM published as a Federal Register on July 14, 2010 (45 CFR Parts 160 and 164) includes updates to a few areas related to use and disclosure of information related to decedents’ PHI.

Uses and Disclosures of Decedents’ PHI
The proposed rule would modify the current rule to limit the period for which a covered entity must protect an individual’s health information to 50 years after the individual’s death. This will reduce the burden on both covered entities and on those seeking the PHI of persons who have been deceased for many years by eliminating the need to search for and find a personal representative of the decedent, who in many cases may not be known or even exist after so many years, to authorize the disclosure. We believe this change would benefit family members and historians who may seek access to the medical information of these decedents for personal and public interest reasons.

Uses and Disclosures for Care and Notification Purposes
The proposed rule would permit covered entities to disclose a decedent’s PHI to family members, or other persons involved in the individual’s care or payment for care before the individual’s death, unless doing so would be inconsistent with any prior expressed preference of the individual that is known to the covered entity. The rights of the decedent’s personal representative to have access to the PHI of the decedent would remain unchanged. This would reduce the burden by permitting covered entities to continue to disclose PHI to family members and other persons who were involved in an individual’s care while the individual was alive after the death of the individual without needing to obtain authorization from the decedent’s personal representative, who may not be known or even exist.

Public Health Disclosures
The proposed rule would create a new public health provision to permit disclosure of proof of a child’s immunization by a covered entity to a school in States that have school entry or similar laws. This proposed change would allow a covered health care provider to release proof of immunization to a school without having to obtain a written authorization, provided the provider obtained the agreement (oral or otherwise) to the disclosure from either the parent or guardian, or the individual, if the individual is an adult or emancipated minor. It is expected the burden would be reduced on covered entities and parents
in obtaining and providing written authorizations.

Since the proposed rule would require the covered entity and the responsible party for the student to agree that the covered entity may release proof of immunization, some covered entities may request the agreement in writing.