OCR Releases Model Notices of Privacy Practices

by BakerHostetler

Under the Privacy Rule, an individual has the right to adequate notice of how a covered entity may use and disclose PHI about the individual, as well as his/her rights and the covered entity’s obligations with respect to that information. Thus, a covered entity must develop and provide to individuals with a Notice of Privacy Practices (NPP). See 45 C.F.R. § 164.520. Under the Privacy Rule, a covered entity is also required to promptly revise its NPP when there is a material change to any of its privacy practices stated in the NPP to ensure that individuals are aware of their health information privacy protections and rights. In January 2013, the Final Rule brought a number of material changes to the privacy obligations of HIPAA covered entities, and thus, NPPs must be revised to reflect such changes.

Just a week prior to the Final Rule September 23, 2013 compliance date, OCR and the Office of National Coordinator for Health Information Technology (ONC) released model NPPs. Health care providers and health plans are encouraged to use the model notices as guidance for updating communications to patients and plan members. The three models include (i) a notice in the form of a booklet, (ii) a layered notice with a summary of the information on the first page and full content on following pages, and (iii) a notice with the design elements of a booklet, but in a full page presentation format. A text only version is also provided for covered entities  who wish only to use content. 

The model NPPs include the following Final Rule changes:

  • Breach notification obligations – a covered entity must include a statement regarding an impacted individuals’ rights after a breach of unsecured PHI;
  • Description of uses and disclosures requiring authorization, including for:
    • Most uses and disclosures of psychotherapy notes;
    • Uses and disclosures of PHI for marketing purposes; and
    • Disclosures that constitute a sale of PHI;
    • Fundraising – before a covered entity contacts a patient for fundraising purposes, it must explain its intentions and inform the patient that they have the right to opt out of receiving such communications;
    • PHI disclosure for underwriting – a health plan that intends to use or disclose PHI for underwriting purposes must include a statement in their NPP that they are prohibited from using or disclosing PHI that is an individual’s genetic information for such purpose;
    • Restrictions on discourse of PHI to a health plan – a covered entity must abide by an individual’s request to restrict disclosure to a health plan if the disclosure is for payment or health care operations, and pertains to a health care item or service for which the individual has paid out of pocket in full. 

While covered entities may have had their new NPPs in place or in the process of approval in anticipation of the September 23, 2013 compliance date when OCR and ONC released its model NPPs, covered entities should review their new NPPs to the model NPPs to ensure that all elements considered by OCR and ONC to be compliant with the Final Rule are in place, and revise if necessary. 

To ensure that an individuals is aware of their rights regarding use and disclosure of their PHI, a covered entity must make its notice available to any person who asks for it, and a covered entity must prominently post and make available its notice on any web site it maintains that provides information about its customer services or benefits.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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