HHS Issues Model Privacy Notices: The Good, the Bad, and the Ugly

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Just in time for the September 23, 2013, deadline for compliance with the HIPAA Omnibus Rule, the U.S. Department of Health and Human Services (“HHS”) issued a set of model notices of privacy practices for health care providers and group health plans, available at http://www.hhs.gov/ocr/privacy/hipaa/modelnotices.html. HIPAA requires covered health care providers and health plans to post, distribute to enrollees and new patients, and make available to everyone such a notice. Business associates of covered entities, who are subject to certain HIPAA privacy and security requirements, are not required to maintain a notice of privacy practices. The new model notices reflect changes required by the Omnibus Rule, but their use is not required and covered entities are free to use notices that they have drafted, so long as they have been updated with changes that the Omnibus Rule requires.

The Good. The model notices generally are easy to read, well formatted, and available in a choice of styles: a traditional notice, a layered notice with a one-page summary followed by more details, and a booklet-style notice. For covered entities who have not created or updated a notice of privacy practices, these models offer a convenient means of compliance and should only take a few minutes to fill out for purposes of HIPAA (except that filling in any additional state law restrictions may be more challenging and require assistance of counsel).

The model notices also offer to everyone a better sense of HHS’ expectations. The HIPAA Privacy Rule provides that, with respect to uses and disclosures described in the notice, “the description must include sufficient detail to place the individual on notice of the uses and disclosures that are permitted or required by [the Privacy Rule] and other applicable law.” This language suggested that covered entities needed to err on the side of too much detail. For example, this language suggested that every category of public health disclosure needed to be described (e.g., disclosures to employers for OSHA requirements or disclosures to schools requesting student immunization records). The result was extremely long and cumbersome notices. The model notices make clear that not every use or disclosure need be described in detail. It is enough, for example, to state that “We can use or share your information for health research.”

The Bad. There’s not much bad to say about the new notices, other than that it would have been helpful it they were issued earlier.  We note, though, that they do go beyond the HIPAA requirements in at least one respect. HIPAA requires that “[t]he notice must contain a statement that individuals may complain to the covered entity and to the Secretary if they believe their privacy rights have been violated, a brief description of how the individual may file a complaint with the covered entity, and a statement that the individual will not be retaliated against for filing a complaint.” While a statement about the right to complain to HHS is required, there is no requirement to provide detailed information about how to complain. In contrast, the model notices include the address and process for complaining to the HHS Office for Civil Rights (“OCR”). Covered entities should give thought to whether they would like their notice to include this level of detail. This is not to suggest that covered entities should in any way discourage individuals from complaining to HHS. Covered entities, however, should encourage individuals to first file a complaint with them, so that it can be quickly resolved, rather than inviting individuals to proceed directly to filing a complaint with OCR.

The Ugly. There are a few ugly parts to the model notices, presumably caused by technical limitations. For example, the model notice provides space at the end to indicate that certain prior statements are inapplicable. For example, in the model full-page notice for health care providers, page 3 indicates that “you have both the right and choice to tell us to:… Include your information in a hospital directory.” On the bottom of page 4, the provider can add “we do not create or manage a hospital directory.” These seemingly inconsistent statements may cause confusion among patients. Accordingly, covered entities that use the model notices may be well served by copying the text and creating a new model which deletes inapplicable statements. OCR includes a MS Word document with the text for each model so that covered entities can more readily make edits.