The consent requirement created the unintended effect of preventing health care providers from providing timely, quality health care to individuals in a variety of circumstances. The most troubling and pervasive problem was that health care providers would not have been able to use or disclose protected health information for treatment, payment, or health care operations purposes prior to the initial face-to-face encounter with the patient, which is routinely done to provide timely access to quality health care. The following are some examples of how the consent requirement would have posed barriers to health care:
– Pharmacists would not have been able to fill a prescription, search for potential drug interactions, determine eligibility, or verify coverage before the individual arrived at the pharmacy to pick up the prescription if the individual had not already provided consent under the Privacy Rule.
– Hospitals would not have been able to use information from a referring physician to schedule and prepare for procedures before the individual presented at the hospital for such procedure, or the patient would have had to make a special trip to the hospital to sign the consent form.
– Providers who do not provide treatment in person (such as a provider prescribing over the telephone) may have been unable to provide care because they would have had difficulty obtaining prior written consent to use protected health information at the first service delivery.
– Emergency medical providers were concerned that, even if a situation was urgent, they would have had to try to obtain consent to comply with the Privacy Rule, even if that would be inconsistent with the appropriate practice of emergency medicine.
– Emergency medical providers were also concerned that the requirement that they attempt to obtain consent as soon as reasonably practicable after an emergency would have required significant efforts and administrative burden which might have been viewed as harassing by patients, because these providers typically do not have ongoing relationships with individuals.
To eliminate such barriers to health care, mandatory consent was replaced with the voluntary consent provision that permits health care providers to obtain consent for treatment, payment and healthcare operations, at their option, and enables them to obtain consent in a manner that does not disrupt needed treatment. Although consent is no longer mandatory, the Rule still affords individuals the opportunity to engage in important discussions regarding the use and disclosure of their health information through the strengthened notice requirement, while allowing activities that are essential to quality health care to occur unimpeded. These modifications will ensure that the Rule protects patient privacy as intended without harming consumers’ access to care or the quality of that care. Further, the individual’s right to request restrictions on the use or disclosure of his or her protected health information is retained in the Rule as modified.