in HIPAA Headlines by John Brewer

What does it take for PHI to not be PHI?

Glad you asked…though in reality for a practice, this will not come up much, it is good to have an idea of what make a patient’s information PHI and therefore covered under HIPAA.

Key Points:

De-identified health information, as described in the Privacy Rule, is not PHI, and thus is not protected by the Privacy Rule.

PHI may be used and disclosed for research with an individual’s written permission in the form of an Authorization.

PHI may be used and disclosed for research without an Authorization in limited circumstances: Under a waiver of the Authorization requirement, as a limited data set with a data use agreement, preparatory to research, and for research on decedents’ information.

The Privacy Rule describes the ways in which covered entities can use or disclose PHI, including for research purposes. In general, the Rule allows covered entities to use and disclose PHI for research if authorized to do so by the subject in accordance with the Privacy Rule. In addition, in certain circumstances, the Rule permits covered entities to use and disclose PHI without Authorization for certain types of research activities. For example, PHI can be used or disclosed for research if a covered entity obtains documentation that an Institutional Review Board (IRB) or Privacy Board has waived the requirement for Authorization or allowed an alteration. The Rule also allows a covered entity to enter into a data use agreement for sharing a limited data set. There are also separate provisions for how PHI can be used or disclosed for activities preparatory to research and for research on decedents’ information.

It is important to note that there are circumstances in which health information maintained by a covered entity is not protected by the Privacy Rule. PHI excludes health information that is de-identified according to specific standards. Health information that is de-identified can be used and disclosed by a covered entity, including a researcher who is a covered entity, without Authorization or any other permission specified in the Privacy Rule. Under the Privacy Rule, covered entities may determine that health information is not individually identifiable in either of two ways. These are described below.

De-identifying Protected Health Information Under the Privacy Rule

Covered entities may use or disclose health information that is de-identified without restriction under the Privacy Rule. Covered entities seeking to release this health information must determine that the information has been de-identified using either statistical verification of de-identification or by removing certain pieces of information from each record as specified in the Rule.

The Privacy Rule allows a covered entity to de-identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity also must have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following:

  1. Names.
  2. All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census:
    • The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people.
    • The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000.
  3. All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older.
  4. Telephone numbers.
  5. Facsimile numbers.
  6. Electronic mail addresses.
  7. Social security numbers.
  8. Medical record numbers.
  9. Health plan beneficiary numbers.
  10. Account numbers.
  11. Certificate/license numbers.
  12. Vehicle identifiers and serial numbers, including license plate numbers.
  13. Device identifiers and serial numbers.
  14. Web universal resource locators (URLs).
  15. Internet protocol (IP) address numbers.
  16. Biometric identifiers, including fingerprints and voiceprints.
  17. Full-face photographic images and any comparable images.
  18. Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re-identification.

Beyond this, if you are involved with research, there is much more to be aware of.

The most conservative thing to do is remove all of these items.

About John Brewer

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