January 2013 HIPAA Privacy Regulations: General Rules for Uses and Disclosures of Protected Health Information: Deceased Individuals – § 164.502f

“HHS Regulations as Amended January 2013
General Rules for Uses and Disclosures of Protected Health Information: Deceased Individuals – § 164.502(f)

Standard: deceased individuals. A covered entity must comply with the requirements of this subpart with respect to the protected health information of a deceased individual for a period of 50 years following the death of the individual.

HHS Description and Commentary From the January 2013 Amendments
General Rules for Uses and Disclosures of Protected Health Information: Deceased Individuals.

 

Section 164.502(f) requires covered entities to protect the privacy of a decedent’s protected health information generally in the same manner and to the same extent that is required for the protected health information of living individuals. Thus, if an authorization is required for a particular use or disclosure of protected health information, a covered entity may use or disclose a decedent’s protected health information in that situation only if the covered entity obtains an authorization from the decedent’s personal representative. The personal representative for a decedent is the executor, administrator, or other person who has authority under applicable law to act on behalf of the decedent or the decedent’s estate. The Department heard a number of concerns since the publication of the Privacy Rule that it can be difficult to locate a personal representative to authorize the use or disclosure of the decedent’s protected health information, particularly after an estate is closed. Furthermore, archivists, biographers, and historians had expressed frustration regarding the lack of access to ancient or old records of historical value held by covered entities, even when there are likely few surviving individuals concerned with the privacy of such information. Archives and libraries may hold medical records, as well as correspondence files, physician diaries and casebooks, and photograph collections containing fragments of identifiable health information, that are centuries old. Currently, to the extent such information is maintained by a covered entity, it is subject to the Privacy Rule. Accordingly, we proposed to amend § 164.502(f) to require a covered entity to comply with the requirements of the Privacy Rule with regard to the protected health information of a deceased individual for a period of 50 years following the date of death.

Proposed Rule

We also proposed to modify the definition of “protected health information” at § 160.103 to make clear that the individually identifiable health information of a person who has been deceased for more than 50 years is not protected health information under the Privacy Rule. We proposed 50 years to balance the privacy interests of living relatives or other affected individuals with a relationship to the decedent, with the difficulty of obtaining authorizations from personal representatives as time passes. A 50-year period of protection had also been suggested at a National Committee for Vital and Health Statistics (the public advisory committee which advises the Secretary on the implementation of the Administrative Simplification provisions of HIPAA, among other issues) meeting, at which committee members heard testimony from archivists regarding the problems associated with applying the Privacy Rule to very old records. See http://ncvhs.hhs.gov/050111mn.htm. We requested public comment on the appropriateness of this time period.”

READ THE ENTIRE ARTICLE AT:

Bricker & Eckler LLP: HIPAA Privacy Regulations: General Rules for Uses and Disclosures of Protected Health Information: Deceased Individuals – § 164.502f

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7 thoughts on “January 2013 HIPAA Privacy Regulations: General Rules for Uses and Disclosures of Protected Health Information: Deceased Individuals – § 164.502f

  1. Sure looks like this will be no use to those seeking info!!!! When you read thru the long comments on the link they seem “bound and determined” to protect any and all info even 50 to 100 years after death or for as long as the records are maintained!
    Information desperate families are trying to locate.
    Kathleen
    Jacksonville Oregon

    Sent from my Kathleen’s iPhone

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  2. Sadly when you read completely thru the Linked info and comments… It appears the HIPPA ruling is going to be to protect “Patient Privacy” in death and for as long as records are maintained.
    At first I thought it sounded like they will release some info after 50yrs but when you read all thru that seems not to be the case!
    Sad for my family and so many others just looking for answers!

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    • But then it states: “However, if a covered entity does maintain decedent health information for longer than 50 years following the date of death of the individual, this information will no longer be subject to the Privacy Rule.” I think that would apply to historical records but I’m not sure. I will find out.

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    • Thank you! I emailed the law firm that presented the article to ask if this new law applies to deceased patients of former state hospitals. Hopefully, someone will respond with a straight answer.

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  3. Thanks to Linda for posting this on my FB page. It has interesting info and links, but also raises questions. Our group has been told for years that state law prevents releasing information, then more recently they started saying federal and back to state. Everytime we get one of these answers, we have yet to be given a specific state statute/HIPAA or caselaw that says they are in the right to deny us access. I spoke to a state representative last year that said patients buried at a state hospital more then 50 years ago don’t fall under HIPAA, they were and technically still are, wards of the state. Why do some states make records accessible under state and not federal law?

    We have a situation here with 170+ graves that were found during construction for the college moving onto the property and they were all exhumed. Not much was found with the remains, however there was 1 iron coffin (circa 1850s) and has a name on it. The state has stood by their claim that it wont be released due to HIPAA, although I think this is the very reason the family chose to have his name put on it! I talked to someone in the legal department for mental health and was told “you don’t like it, take us to court”, that’s the attitude most relatives and researchers face these days sadly. We don’t plan on giving up anytime soon.

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    • The doctor in charge of the NYS Institutional Review Board told me the same thing: “Take us to court,” and that was just for the names of the dead, not the medical records. I hope that these new amendments and changes to the HIPAA Law will allow the release of these historical medical records and patient names.

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