Authorizations

The Privacy Rule permits, but does not require, a covered entity voluntarily to obtain patient consent for uses and disclosures of protected health information for treatment, payment, and health care operations.

278-When is an authorization required from the patient before a provider or health plan engages in marketing to that individual

The HIPAA Privacy Rule expressly requires an authorization for uses or disclosures of protected health information for ALL marketing communications, except in two circumstances:

We do not believe that the Privacy Rule will hinder medical research. Indeed, patients and health plan members should be more willing to authorize disclosures of their information for research and to participate in research when they know their information is protected.

Under the HIPAA Privacy Rule, IRBs and Privacy Boards need to use their judgment as to whether the waiver criteria have been satisfied.

304-Does HIPAA prohibit researchers from conditioning participation in a clinical trial on an authorization to use/disclose existing information

No. The Privacy Rule does not address conditions for enrollment in a research study. Therefore, the Privacy Rule in no way prohibits researchers from conditioning enrollment in a research study on the execution of an authorization for the use of pre-existing health information.

305-Does HIPAA permit creating a database for research purposes through an IRB or Privacy Board waiver

Yes. A covered entity may use or disclose protected health information without individuals’ authorizations for the creation of a research database, provided the covered entity obtains documentation that an IRB or Privacy Board has determined that the specified waiver criteria were satisfied.

307-How does the Rule help IRBs handle the additional responsibilities imposed by the HIPAA Privacy Rule

Recognizing that some institutions may not have IRBs, or that some IRBs may not have the expertise needed to review research that requires consideration of risks to privacy, the Privacy Rule permits the covered entity to accept documentation of waiver of authorization from an alternative body called a Privacy Board–which could have fewer members, and members with different expertise than IRBs.

308-By establishing new waiver criteria and authorization requirements, hasn't HIPAA modified the Common Rule

No. Where both the Privacy Rule and the Common Rule apply, both regulations must be followed. The Privacy Rule regulates only the content and conditions of the documentation that covered entities must obtain before using or disclosing protected health information for research purposes.

No. The HIPAA Privacy Rule requires documentation of waiver approval by either an IRB or a Privacy Board, not both.

310-Does HIPAA require a covered entity to create an IRB or Privacy Board before using or disclosing protected health information for research

The IRB or Privacy Board could be created by the covered entity or the recipient researcher, or it could be an independent board.

311-What does HIPAA say about a research participant's right of access to research records or results

With few exceptions, the Privacy Rule gives patients the right to inspect and obtain a copy of health information about themselves that is maintained by a covered entity or its business associate in a “designated record set.”

313-Do HIPAA's requirements for authorization and the Common Rule's requirements for informed consent differ?

Yes. Under the Privacy Rule, a patient’s authorization is for the use and disclosure of protected health information for research purposes. In contrast, an individual’s informed consent, as required by the Common Rule and the Food and Drug Administration’s (FDA) human subjects regulations, is a consent to participate in the research study as a whole, not simply a consent for the research use or disclosure of protected health information.

A researcher is a covered health care provider if he or she furnishes health care services to individuals, including the subjects of research, and transmits any health information in electronic form in connection with a transaction covered by the Transactions Rule.

315-When can a covered determine whether a research component of the entity is part of their covered functions

A covered entity that qualifies as a hybrid entity, meaning that the entity is a single legal entity that performs both covered and non-covered functions, may choose whether it wants to be a hybrid entity. If such a covered entity decides not to be a hybrid entity then it, and all of its components, are subject to the Privacy Rule in its entirety. Therefore, if a researcher is an employee or workforce member of a covered entity that has decided not to be a hybrid entity, the researcher is part of the covered entity and is, therefore, subject to the Privacy Rule.

316-If a research subject revokes authorization to disclose information can a researcher continue using the information already obtained

Covered entities may continue to use and disclose protected health information that was obtained prior to the time the individual revoked his or her authorization, as necessary to maintain the integrity of the research study.

317-Can the preparatory research provision of the HIPAA Privacy Rule be used to recruit individuals into a research study

The preparatory research provision permits covered entities to use or disclose protected health information for purposes preparatory to research, such as to aid study recruitment. However, the provision at 45 CFR 164.512(i)(1)(ii) does not permit the researcher to remove protected health information from the covered entity’s site.

318-Does HIPAA require documentation of IRB approval of an alteration or waiver of individual authorization

No. Documentation of IRB or Privacy Board approval of an alteration or waiver of individual authorization is only needed before a covered entity may use or disclose protected health information under 45 CFR 164.512(i)(1)(i).

319-If consent was obtained before the compliance date but the IRB modifies the document is authorization required

If informed consent or reconsent (ie., asked to sign a revised consent or another informed consent) is obtained from research subjects after the compliance date, the covered entity must obtain individual authorization as required at 45 CFR 164.508 for the use or disclosure of protected health information once the consent obtained before the compliance date is no longer valid for the research.

Yes. The Office for Human Research Protections is a public health authority under the HIPAA Privacy Rule. Therefore, covered entities can continue to disclose protected health information to report adverse events to the Office for Human Research Protections either with patient authorization as provided at 45 CFR 164.508, or without patient authorization for public health activities as permitted at 45 CFR 164.512(b).

321-Can covered entities continue to disclose information to the HHS Office for Human Research Protections

Yes. The Office for Human Research Protections is a health oversight agency under the HIPAA Privacy Rule. Therefore, covered entities can continue to disclose protected health information to the Office for Human Research Protections for such compliance investigations either with patient authorization as provided at 45 CFR 164.508, or without patient authorization for health oversight activities as permitted at 45 CFR 164.512(d).

471-May a covered entity use or disclose a patient’s entire medical record based on the patient’s signed authorization

Yes, as long as the Authorization describes, among other things, the information to be used or disclosed by the covered entity in a

Yes. A covered entity is permitted to use or disclose protected health information pursuant to any Authorization that meets the Privacy Rule’s requirements at 45 CFR 164.508.

Yes. One Authorization form may be used to authorize uses and disclosures by classes or categories of persons or entities, without naming the particular persons or entities.

Yes. The Privacy Rule gives individuals the right to revoke, at any time, an Authorization they have given.

Under the Privacy Rule, a covered entity may use or disclose protected health information pursuant to a copy of a valid and signed Authorization, including a copy that is received by facsimile or electronically transmitted.

The Privacy Rule requires that an Authorization contain either an expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure.

Yes, provided that the Authorization encompasses the category of information that was later created, and that the Authorization has not expired or been revoked by the individual.

The Privacy Rule does not require that a document be notarized or witnessed.

479-Can an authorization be used together with other written instructions from the intended recipient of the information

A transmittal or cover letter can be used to narrow or provide specifics about a request for protected health information as described in an Authorization, but it cannot expand the scope of the Authorization.

481-Does HIPAA permit health care providers to share information for treatment purposes without authorization

The Privacy Rule allows those doctors, nurses, hospitals, laboratory technicians, and other health care providers that are covered entities to use or disclose protected health information, such as X-rays, laboratory and pathology reports, diagnoses, and other medical information for treatment purposes without the patient’s authorization.