The Privacy Rule differentiates between two types of denial, reviewable and unreviewable. See 45 C.F.R. § 164.524(a)(2), (3). As to the unreviewable grounds for denial, there are essentially two decisions a covered entity will need to make with respect to electronic access:
- whether it may deny access based on one or more of the grounds identified by the Privacy Rule; and
- how to implement such decisions categorically in the electronic environment.
A covered entity may decide, for example, to categorically deny access to certain types of information to which no access right exists, such as psychotherapy notes. The Privacy Rule would permit denial without review, and a case-by-case judgment would not be necessary. Similarly, the covered entity may make such a system-wide decision with respect to other types of protected health information where the Privacy Rule permits an unreviewable denial of access.
In contrast, reviewable grounds for denial of access require decisions be made on a case-by-case basis through the professional judgment of licensed health care providers. Professional judgment also would be required if individuals exercise their right to appeal a denial of access made on reviewable grounds. As computer logic cannot be a substitute for professional judgment in these cases, these types of activities cannot be carried out categorically or in an automated way. Neither could these decisions be delegated to a health information organization (HIO), unless a licensed health care professional at the HIO were assigned the task of making the access determinations.