The Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule1
by Susan H. Pauley, Esq.
Steptoe & Johnson PLLC

 

Background. On November 3, 1999, the U.S. Department of Health and Human Services
(“HHS”) published a proposed HIPAA Privacy Rule.2 On December 28, 2000, the Rule was finalized,
in a somewhat modified form. On April 14, 2001, despite a change in administration, the HIPAA
Privacy Rule became effective. On August 14, 2002, modifications to
the HIPAA Privacy Rule were published. The compliance deadline for all covered entities (defined
below), except small health plans, was April 14, 2003. Small health plans were given an additional
year to come into compliance.

Significant modifications to the HIPAA Privacy Rule (as well as the HIPAA Security Rule) were
included in the Health Information Technology for Economic and Clinical Health (HITECH) Act (and
its implementing regulations) within the American Recovery and Reinvestment Act (“ARRA”), which was
enacted on February 17, 2009 (Pub. L. No. 111-5). In general, the effective date for the
modifications and new requirements imposed by the ARRA was February 17, 2010. This effective date
did not, however, apply to all of the new requirements.

Preemption. Except in certain circumstances, HIPAA preempts state law when HIPAA requirements are
“contrary to” state law. One of the most noteworthy circumstances in which HIPAA does not preempt
state law is where state privacy laws are more stringent than HIPAA.

Key Defined Terms. The HIPAA Privacy Rule regulates covered entities’ use and disclosure of
protected health information.

“Covered entities” is defined to mean: (1) health plans; (2) health care clearinghouses; and (3)
health care providers who transmit health information electronically in connection with a covered
transaction.

“Protected health information” or “PHI” is broadly defined as individually identifiable health
information that is transmitted or maintained electronically or in any other form.3

“Individually identifiable health information” is information that –
o Is created or received by a health care provider, health plan, employer, or health care
clearinghouse; Due to the length and complexity of the HIPAA Privacy Rule, this article does not provide a

comprehensive review of the HIPAA Privacy Rule. Instead, the article highlights certain key
issues. The author would like to thank Michael Nissim-Sabat for his assistance in updating this
article.

The HIPAA Privacy Rule is found at 45 C.F.R. Part 160 and Subparts A and E of Part 164.

On a related note, the HIPAA Security Rule, which may be found at 45 C.F.R. Part 160 and
Subparts A and C of Part 164, regulates the use and disclosure of electronic PHI – that is PHI that
is transmitted or maintained in electronic form (e.g., records on CD-Rom or floppy disk, email,
scanned records).

o Relates to an individual’s past, present, or future health; the provision of health care to an
individual; or the past, present, or future payment for health care to an individual; and
o Identifies an individual (or for which there is a reasonable basis to believe that the
information may be used to identify the individual).

It is important to note that PHI does not include individually identifiable health information
contained in certain categories of records such as, for example, employment records maintained by a
Covered Entity in its role as employer and education records covered by the Family Educational
Rights and Privacy Act.

Permitted Uses and Disclosures of PHI. In general, the HIPAA Privacy Rule permits
Covered Entities to use and/or disclosure of PHI in the following circumstances:

 For treatment, payment and health care operations purposes without an authorization;
 For the following other purposes without an authorization:

  • Uses/disclosures required by law.
  • Uses/disclosures for public health activities.
  • Disclosures about victims of abuse, neglect, or domestic violence.
  • Uses/disclosures for health oversight activities.
  • Disclosures for judicial and administrative proceedings.
  • Disclosures for law enforcement purposes.
  • Uses/disclosures about decedents (coroners, medical examiners, funeral directors).
  • Uses/disclosures for cadaveric organ, eye, or tissue donation.
  • Uses/disclosures for research purposes.
  • Uses/disclosures to avert a serious threat to health or safety.
  • Uses/disclosures for specialized government functions.\
  • Disclosures for worker’s compensation (i.e., Covered Entities may disclose PHI

as authorized by and to the extent necessary to comply with state worker’s
compensation laws).
 Pursuant to a HIPAA-compliant authorization.

Use and Disclosure of PHI in Litigation. In the litigation context,4 PHI is typically obtained in
one or more of the following of the following ways:

 Voluntarily from the record subject (i.e., in response to a request for production of
records).
 Pursuant to a HIPAA-compliant authorization.
 Pursuant to a court order/Qualified Protective Order.
 Pursuant to a subpoena meeting the requirements of the HIPAA Privacy Rule.

The Supreme Court of Appeals of West Virginia has noted that “ʻdiscovery of protected health

information is permitted so long as a court order or agreement of the parties prohibits disclosure
of the information outside the litigation and requires the return of the information once the
proceedings are concluded.’” State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 719 S.E.2d
722, 742 (W. Va. 2011), cert. denied, State Farm Mut. Auto. Ins. Co. v. Bedell, 132 S. Ct. 761
(2011) and Luby v. Bedell, 132 S. Ct. 776 (2011) (internal citations omitted) Components of a HIPAA-compliant Authorization. In order to be compliant with the

HIPAA Privacy Rule, an authorization must contain the following core elements:
 A description of the information to be used/disclosed.
 The name or class of persons permitted to make the use/disclosure.
 The name or class of persons permitted to use the authorization and receive the
disclosures.
 A description of the purpose of the use/disclosure.
 An expiration date or the naming of an event that will cause the authorization to expire.
 A statement advising the individual of his/her right to revoke the authorization, along with
an explanation of how to revoke the authorization and an address to which a
revocation may be sent.
 The signature of the individual consenting to the authorization and the date. If the
authorization is executed by a representative of the record subject (e.g., parent, guardian), a
description of the relationship is required.
 A statement regarding the ability/inability to condition treatment, payment, enrollment, or
benefits on the execution of the authorization.
 A statement that information released pursuant to the authorization may no longer be protected
and may be subject to re-disclosure.

Authorizations are defective if the expiration date has passed or the Covered Entity providing
information pursuant to the authorization knows that the expiration event has occurred; the
authorization has not been completed; the Covered Entity providing information pursuant to the
authorization knows that the authorization has been revoked; or the Covered Entity providing
information pursuant to the authorization knows that material information in the authorization is
false.

Disclosure of PHI in Response to a Subpoena or a Qualified Protective Order. Pursuant
to 45 C.F.R. § 164.512(e), a Covered Entity may disclose PHI in response to a subpoena
(unaccompanied by a court order) as long as the Covered Entity either (1) receives satisfactory
assurance (e.g., written statement and accompanying documentation demonstrating that the requesting
party has made a good faith attempt to provide written notice to the record subject; that the
notice includes sufficient information about the litigation/proceeding to allow the record subject
to raise an objection; the time for any such objection has passed; and no such objection was made
or any objection raised has been resolved and any disclosures are consistent with the resolution)
from the party seeking the PHI that such party has made reasonable efforts to ensure that the
record subject has been given notice of the record request or (2) receives satisfactory assurance
from the party seeking the information that such party has made reasonable efforts to
secure a qualified protective order meeting the HIPAA Privacy Rule requirements.

The HIPAA Privacy Rule requires that in order for a Covered Entity to disclose PHI pursuant to a
qualified protective order, the qualified protective order must prohibit the parties from using or
disclosing the PHI for any purpose other than the litigation or proceeding for which the PHI was
requested; and requires that the PHI be returned to the Covered Entity or destroyed upon the
conclusion of the litigation or proceeding.
Representation of Covered Entities.

In-house legal counsel. Covered Entities that employ in-house legal counsel may share PHI with
their in-house legal counsel as part of their “health care operations.” “Health care operations”
are activities of a Covered Entity related to the Covered Entity’s covered functions (i.e.,
functions that make the entity a health plan, health care provider, or health care clearinghouse)
such as, for example, conducting quality assessment and improvement activities; reviewing health
care professionals’ competence or qualifications; underwriting and premium rating;
conducting or arranging for medical review, legal services, and auditing functions (e.g., fraud and
abuse detection); business planning and development; and business management and general
administrative activities.

Outside Legal Counsel/Business Associates. If the representation of a Covered Entity by outside
legal counsel, in a litigation or non-litigation context, requires the use and/or disclosure of
PHI, a Business Associate Agreement must be executed. In general, a “Business Associate” is a
person who performs or assists in the performance of (but not in the capacity of a member of
the Covered Entity’s workforce) a function or activity involving the use or disclosure of
individually identifiable health information (e.g., claims processing, billing) or provides (but
not in the capacity of a member of the Covered Entity’s workforce) legal, actuarial, accounting,
consulting, data aggregation, management, administrative, accreditation, or financial services to
or for the Covered Entity and the provision of such service(s) involves the disclosure of
individually identifiable health information from the Covered Entity (or a Business Associate of
the Covered Entity) to the person. Business Associates are required to provide a written assurance
(e.g., written contract or other written agreement) that they will appropriately safeguard PHI
disclosed to them by a Covered Entity.

It is important to note that the HITECH Act appears to codify the Business Associate Agreement
requirement. In addition, the HITECH Act’s additional privacy requirements must be incorporated
into Business Associate Agreements. The HITECH Act also makes Business Associates subject to
HIPAA’s civil and criminal penalties.

Minimum Necessary Standard. Except in certain situations (e.g., disclosures for treatment
purposes, uses/disclosures to the record subject, uses/disclosures pursuant to a HIPAA- compliant
authorization, uses/disclosures required by law, disclosures to the HHS Secretary for enforcement
purposes, and uses/disclosures required for compliance with the HIPAA Administrative
Simplification Rules), whenever a Covered Entity uses or discloses PHI or requests PHI from
another Covered Entity, the Covered Entity is required to make reasonable efforts to limit PHI to
the minimum amount necessary to accomplish the intended purpose.

Under the HITECH Act, which modified the Minimum Necessary Standard, the
Minimum Necessary Standard will only be met if the use, disclosure, or request of PHI is limitedto a “limited data set” (most direct identifiers have been removed), or, if needed, to the minimum

amount necessary to achieve the intended purpose. This provision was supposed to be, but has not
yet been, replaced by guidance from the Secretary of the U.S. Department of Health and Human
Services (which was supposed to have been issued within 18 months of the HITECH Act’s enactment).

Individuals’ Rights Under the HIPAA Privacy Rule. Not only does the HIPAA Privacy Rule address
Covered Entities’ uses and disclosures of PHI, but the HIPAA Privacy Rule also creates certain
individual rights such as the following:
 Except in limited circumstances, the right to receive access to or a copy of PHI about
themselves which is maintained by a Covered Entity. The ARRA added language to allow individuals
to obtain a copy of their health information in electronic format if the
information is maintained electronically.
 The right to request an amendment of his/her PHI.
 The right to receive an accounting of disclosures of PHI.5
 The right to receive a copy of a Covered Entity’s Notice of Privacy Practices, upon request.

Enforcement and Penalties for Noncompliance. There is no express private right of action in HIPAA
or the HIPAA Privacy Rule.6 Instead, the U.S. Department of Health and Human Services
(“HHS”), Office of Civil Rights (“OCR”), is responsible for enforcement. Penalties may be in the
form of civil monetary penalties and/or criminal penalties. The ARRA modified HIPAA’s enforcement
provisions.7 In particular, the HITECH Act strengthened the enforcement of the rules under HIPAA
by creating four categories of violations reflecting increasing culpability levels, and four
corresponding tiers of penalties with higher minimum penalties and a
maximum penalty of $1.5 million per calendar year for all violations of an identical requirement
(for violations occurring on or after February 18, 2009). Further, the HITECH Act eliminated the
affirmative defense for violations in which the Covered Entity had no knowledge of the violation
and, in exercising reasonable diligence, should not have known about the violation – that situation
is now punished under the lowest tier of penalties. Also, the HITECH Act prohibited the
imposition of penalties for any violation that is corrected within a 30-day time period unless the
violation was due to willful neglect.

In addition to civil monetary penalties, criminal penalties may be imposed in certain situations.
Criminal prosecutions for violations of the HIPAA Privacy Rule are handled by the United States
Department of Justice. Criminal penalties may be imposed in those situations in which a person
knowingly and wrongfully does the following: (1) uses or causes to be used a

In May, 2011, as required by the Health Information Technology for Economic and Clinical

Health (HITECH) Act, HHS issued a Notice of Proposed Rulemaking to modify the accounting of
disclosure requirement. See 76 Fed. Reg. 31425.

In the Southern District of West Virginia, it has also been determined that HIPAA does not
provide a basis for federal question jurisdiction. See Fields v. Charleston Hosp., Inc., 2006 WL
2371277, at *5 (S.D. W. Va.) (mem. op. & order) (HIPAA does not create a federal cause of action).

For further information, see HIPAA Administrative Simplification: Enforcement Interim Final
Rule; Request for
Comments, 74 Fed. Reg. 56123 (October 30, 2009?)

unique health identifier; (2) obtains individually identifiable health information relating to an
individual; or (3) discloses individually identifiable health information to another person.
Criminal penalties range from fines of up to $50,000 and/or imprisonment up to one year — to fines
of up to $250,000 and/or imprisonment for up to ten (10) years for those situations in which the
violation was committed with the intent to sell, transfer, or use the information for
commercial advantage, personal gain, or malicious harm.

With the enactment of the HITECH Act, state attorneys general may bring civil actions on behalf of
residents to enjoin further violations and to obtain damages up to $25,000 per calendar year for
violations of an identical requirement or prohibition. In addition, in those actions, attorneys’
fees may also be awarded. The HITECH Act also clarified that non-Covered Entities (such as
employees of Covered Entities) may be found to have violated HIPAA if the non-Covered Entity
obtains or discloses individually identifiable health information maintained by a Covered Entity
without authorization.

Under the HITECH Act, OCR was also required to perform periodic audits to ensure compliance by
Covered Entities and Business Associates with the HIPAA Privacy Rule, the HIPAA Security Rule, and
the Breach Notification requirements. OCR began a pilot audit program of 115 audits in November
2011. The pilot program is slated to conclude in December
2012.
On a Related Note . . . Breach Notification Requirements. In August, 2009, pursuant to the HITECH
Act, OCR issued its interim final rule requiring notification of breaches of unsecured
PHI. In the event of a breach of unsecured PHI, a Covered Entity must notify each individual whose
unsecured PHI it believes has been or is reasonably believed to have been accessed, acquired, used,
or disclosed as a result of the breach. Subject to certain exceptions, “breach” is the acquisition,
access, use, or disclosure of PHI (in any format, not just electronic PHI) in a manner that is not
permitted by the HIPAA Privacy Rule and that “compromises the security or privacy of the PHI” or,
more specifically, in a manner that “poses a significant risk of financial, reputational, or other
harm to the individual.”

In the event that the breach involves the PHI of more than 500 residents of a state or
jurisdiction, a Covered Entity is required to promptly (and, in any event, no later than 60 days)
notify prominent media outlets serving the state or jurisdiction. The interim final rule also
requires notification to the HHS Secretary. Specifically, in the event that the breach involves
500 or more individuals, the Covered Entity must notify the HHS Secretary. For breaches
involving less than 500 individuals, the Covered Entity must maintain a log/documentation of the
breach(es) and within 60 days of the end of each calendar year, notify the HHS Secretary.

The notification is to include:
 A brief description of the breach, including the date of the breach and the date that the
breach was discovered, if known;
 A description of the types of unsecured PHI involved in the breach;
 Any steps that individuals should take to protect themselves from potential harm;

 A brief description of the Covered Entity’s efforts to investigate the breach, to mitigate
harm to individuals, and to protect against future breaches; and
 Contact information (i.e., toll-free telephone number, e-mail address, web site, or postal
address) for individuals to obtain additional information.

HHS developed a final breach notification rule, which it submitted for review to the Office of
Management and Budget in May 2010. HHS later withdrew its final Security Breach Notification Rule
from review by OMB to allow for further consideration. Until a new final rule is promulgated, the
interim final rule is in effect.

HIPAA Omnibus Rule. In March, 2012, OCR submitted its omnibus HIPAA rule, which includes
regulations on enforcement, breach notification, health plan use of genetic information,
application of the HIPAA Security Rule to Business Associates and subcontractors, and using patient
health information for marketing activities, to OMB for review. OMB, however, has delayed its
release of the Rule.
Additional Information Available. While there are many sources of additional information
regarding the HIPAA Privacy Rule, the U.S. Department of Health and Human Service’s website
(www.hhs.gov), and particularly the fact sheets and frequently asked questions included therein,
are a good starting place to obtain additional information regarding the HIPAA Privacy Rule.

This article should not be construed or relied upon as legal advice or legal opinion on any matter.
The content is intended for general information purposes only. You should consult with your own
lawyer for legal advice or a legal opinion on the specific facts and circumstances of your own
situation.
your own situation.

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