INCIDENTAL USES AND DISCLOSURES [45 CFR 164.502(a)(1)(iii)] Background Many customary health care communications and practices play an important or even essential role in ensuring that individuals receive prompt and effective health care. Due to the nature of these communications and practices, as well as the various environments in which individuals receive health care or other services from covered entities, the potential exists for an individual's health information to be disclosed incidentally. For example, a hospital visitor may overhear a provider's confidential conversation with another provider or a patient, or may glimpse a patient's information on a sign-in sheet or nursing station whiteboard. The HIPAA Privacy Rule is not intended to impede these customary and essential communications and practices and, thus, does not require that all risk of incidental use or disclosure be eliminated to satisfy its standards. Rather, the Privacy Rule permits certain incidental uses and disclosures of protected health information to occur when the covered entity has in place reasonable safeguards and minimum necessary policies and procedures to protect an individual's privacy. How the Rule Works General Provision. The Privacy Rule permits certain incidental uses and disclosures that occur as a by-product of another permissible or required use or disclosure, as long as the covered entity has applied reasonable safeguards and implemented the minimum necessary standard, where applicable, with respect to the primary use or disclosure. See 45 CFR 164.502(a)(1)(iii). An incidental use or disclosure is a secondary use or disclosure that cannot reasonably be prevented, is limited in nature, and that occurs as a result of another use or disclosure that is permitted by the Rule. However, an incidental use or disclosure is not permitted if it is a by-product of an underlying use or disclosure which violates the Privacy Rule. Reasonable Safeguards. A covered entity must have in place appropriate administrative, technical, and physical safeguards that protect against uses and disclosures not permitted by the Privacy Rule, as well as that limit incidental uses or disclosures. See 45 CFR 164.530(c). It is not expected that a covered entity's safeguards guarantee the privacy of protected health information from any and all potential risks. Reasonable safeguards will vary from covered entity to covered entity depending on factors, such as the size of the covered entity and the nature of its business. In implementing reasonable safeguards, covered entities should analyze their own needs and circumstances, such as the nature of the protected health information it holds, and assess the potential risks to patients' privacy. Covered entities should also take into account the potential effects on patient care and may consider other issues, such as the financial and administrative burden of implementing particular safeguards. Many health care providers and professionals have long made it a practice to ensure reasonable safeguards for individuals' health information — for instance: By speaking quietly when discussing a patient's condition with family members in a waiting room or other public area; By avoiding using patients' names in public hallways and elevators, and posting signs to remind employees to protect patient confidentiality; By isolating or locking file cabinets or records rooms; or By providing additional security, such as passwords, on computers maintaining personal information. Protection of patient confidentiality is an important practice for many health care and health information management professionals; covered entities can build upon those codes of conduct to develop the reasonable safeguards required by the Privacy Rule. Minimum Necessary. Covered entities also must implement reasonable minimum necessary policies and procedures that limit how much protected health information is used, disclosed, and requested for certain purposes. These minimum necessary policies and procedures also reasonably must limit who within the entity has access to protected health information, and under what conditions, based on job responsibilities and the nature of the business. The minimum necessary standard does not apply to disclosures, including oral disclosures, among health care providers for treatment purposes. For example, a physician is not required to apply the minimum necessary standard when discussing a patient's medical chart information with a specialist at another hospital. See 45 CFR 164.502(b) and 164.514(d), and the fact sheet and frequently asked questions on this web site about the minimum necessary standard, for more information. An incidental use or disclosure that occurs as a result of a failure to apply reasonable safeguards or the minimum necessary standard, where required, is not permitted under the Privacy Rule. For example: The minimum necessary standard requires that a covered entity limit who within the entity has access to protected health information, based on who needs access to perform their job duties. If a hospital employee is allowed to have routine, unimpeded access to patients' medical records, where such access is not necessary for the hospital employee to do his job, the hospital is not applying the minimum necessary standard. Therefore, any incidental use or disclosure that results from this practice, such as another worker overhearing the hospital employee's conversation about a patient's condition, would be an unlawful use or disclosure under the Privacy Rule. INCIDENTAL USES AND DISCLOSURES Frequently Asked Questions Q: Can health care providers engage in confidential conversations with other providers or with patients, even if there is a possibility that they could be overheard? A: Yes. The HIPAA Privacy Rule is not intended to prohibit providers from talking to each other and to their patients. Provisions of this Rule requiring covered entities to implement reasonable safeguards that reflect their particular circumstances and exempting treatment disclosures from certain requirements are intended to ensure that providers' primary consideration is the appropriate treatment of their patients. The Privacy Rule recognizes that oral communications often must occur freely and quickly in treatment settings. Thus, covered entities are free to engage in communications as required for quick, effective, and high quality health care. The Privacy Rule also recognizes that overheard communications in these settings may be unavoidable and allows for these incidental disclosures. For example, the following practices are permissible under the Privacy Rule, if reasonable precautions are taken to minimize the chance of incidental disclosures to others who may be nearby: Health care staff may orally coordinate services at hospital nursing stations. Nurses or other health care professionals may discuss a patient's condition over the phone with the patient, a provider, or a family member. A health care professional may discuss lab test results with a patient or other provider in a joint treatment area. A physician may discuss a patients' condition or treatment regimen in the patient's semi-private room. Health care professionals may discuss a patient's condition during training rounds in an academic or training institution. A pharmacist may discuss a prescription with a patient over the pharmacy counter, or with a physician or the patient over the phone. In these circumstances, reasonable precautions could include using lowered voices or talking apart from others when sharing protected health information. However, in an emergency situation, in a loud emergency room, or where apatient is hearing impaired, such precautions may not be practicable. Covered entities are free to engage in communications as required for quick, effective, and high quality health care. Q: Does the HIPAA Privacy Rule require hospitals and doctors' offices to be retrofitted, to provide private rooms, and soundproof walls to avoid any possibility that a conversation is overheard? A: No, the Privacy Rule does not require these types of structural changes be made to facilities. Covered entities must have in place appropriate administrative, technical, and physical safeguards to protect the privacy of protected health information. This standard requires that covered entities make reasonable efforts to prevent uses and disclosures not permitted by the Rule. The Department does not consider facility restructuring to be a requirement under this standard. For example, the Privacy Rule does not require the following types of structural or systems changes: Private rooms. Soundproofing of rooms. Encryption of wireless or other emergency medical radio communications which can be intercepted by scanners. Encryption of telephone systems. Covered entities must implement reasonable safeguards to limit incidental, and avoid prohibited, uses and disclosures. The Privacy Rule does not require that all risk of protected health information disclosure be eliminated. Covered entities must review their own practices and determine what steps are reasonable to safeguard their patient information. In determining what is reasonable, covered entities should assess potential risks to patient privacy, as well as consider such issues as the potential effects on patient care, and any administrative or financial burden to be incurred from implementing particular safeguards. Covered entities also may take into consideration the steps that other prudent health care and health information professionals are taking to protect patient privacy. Examples of the types of adjustments or modifications to facilities or systems that may constitute reasonable safeguards are: Pharmacies could ask waiting customers to stand a few feet back from a counter used for patient counseling. In an area where multiple patient-staff communications routinely occur, use of cubicles, dividers, shields, curtains, or similar barriers may constitute a reasonable safeguard. For example, a large clinic intake area may reasonably use cubicles or shield-type dividers, rather than separate rooms, or providers could add curtains or screens to areas where discussions often occur between doctors and patients or among professionals treating the patient. Hospitals could ensure that areas housing patient files are supervised or locked. Q: May physician's offices or pharmacists leave messages for patients at their homes, either on an answering machine or with a family member, to remind them of appointments or to inform them that a prescription is ready? May providers continue to mail appointment or prescription refill reminders to patients' homes? A: Yes. The HIPAA Privacy Rule permits health care providers to communicate with patients regarding their health care. This includes communicating with patients at their homes, whether through the mail or by phone or in some other manner. In addition, the Rule does not prohibit covered entities from leaving messages for patients on their answering machines. However, to reasonably safeguard the individual's privacy, covered entities should take care to limit the amount of information disclosed on the answering machine. For example, a covered entity might want to consider leaving only its name and number and other information necessary to confirm an appointment, or ask the individual to call back. A covered entity also may leave a message with a family member or other person who answers the phone when the patient is not home. The Privacy Rule permits covered entities to disclose limited information to family members, friends, or other persons regarding an individual's care, even when the individual is not present. However, covered entities should use professional judgment to assure that such disclosures are in the best interest of the individual and limit the information disclosed. See 45 CFR 164.510(b)(3). In situations where a patient has requested that the covered entity communicate with him in a confidential manner, such as by alternative means or at an alternative location, the covered entity must accommodate that request, if reasonable. For example, the Department considers a request to receive mailings from the covered entity in a closed envelope rather than by postcard to be a reasonable request that should be accommodated. Similarly, a request to receive mail from the covered entity at a post office box rather than at home, or to receive calls at the office rather than at home are also considered to be reasonable requests, absent extenuating circumstances. See 45 CFR 164.522(b). Q: May physicians offices use patient sign-in sheets or call out the names of their patients in their waiting rooms? A: Yes. Covered entities, such as physician's offices, may use patient sign-in sheets or call out patient names in waiting rooms, so long as the information disclosed is appropriately limited. The HIPAA Privacy Rule explicitly permits the incidental disclosures that may result from this practice, for example, when other patients in a waiting room hear the identity of the person whose name is called, or see other patient names on a sign-in sheet. However, these incidental disclosures are permitted only when the covered entity has implemented reasonable safeguards and the minimum necessary standard, where appropriate. For example, the sign-in sheet may not display medical information that is not necessary for the purpose of signing in (e.g., the medical problem for which the patient is seeing the physician). See 45 CFR 164.502(a)(1)(iii). Q: Are physicians and doctor's offices prohibited from maintaining patient medical charts at bedside or outside of exam rooms, or from engaging in other customary practices where the potential exists for patient information to be incidentally disclosed to others? A: No. The HIPAA Privacy Rule does not prohibit covered entities from engaging in common and important health care practices; nor does it specify the specific measures that must be applied to protect an individual's privacy while engaging in these practices. Covered entities must implement reasonable safeguards to protect an individual's privacy. In addition, covered entities must reasonably restrict how much information is used and disclosed, where appropriate, as well as who within the entity has access to protected health information. Covered entities must evaluate what measures make sense in their environment and tailor their practices and safeguards to their particular circumstances. For example, the Privacy Rule does not prohibit covered entities from engaging in the following practices, where reasonable precautions have been taken to protect an individual's privacy: Maintaining patient charts at bedside or outside of exam rooms, displaying patient names on the outside of patient charts, or displaying patient care signs (e.g., "high fall risk" or "diabetic diet") at patient bedside or at the doors of hospital rooms. Possible safeguards may include: reasonably limiting access to these areas, ensuring that the area is supervised, escorting non-employees in the area, or placing patient charts in their holders with identifying information facing the wall or otherwise covered, rather than having health information about the patient visible to anyone who walks by. Announcing patient names and other information over a facility's public announcement system. Possible safeguards may include: limiting the information disclosed over the system, such as referring the patients to a reception desk where they can receive further instructions in a more confidential manner. Use of X-ray lightboards or in-patient logs, such as whiteboards, at a nursing station. Possible safeguards may include: if the X-ray lightboard is in an area generally not accessible by the public, or if the nursing station whiteboard is not readily visible to the public, or any other safeguard which reasonably limits incidental disclosures to the general public. The above examples of possible safeguards are not intended to be exclusive. Covered entities may engage in any practice that reasonably safeguards protected health information to limit incidental uses and disclosures. Q: A clinic customarily places patient charts in the plastic box outside an exam room. It does not want the record left unattended with the patient, and physicians want the record close by for fast review right before they walk into the exam room. Will the HIPAA Privacy Rule allow the clinic to continue this practice? A: Yes, the Privacy Rule permits this practice as long as the clinic takes reasonable and appropriate measures to protect the patient's privacy. The physician or other health care professionals use the patient charts for treatment purposes. Incidental disclosures to others that might occur as a result of the charts being left in the box are permitted, if the minimum necessary and reasonable safeguards requirements are met. See 45 CFR 164.502(a)(1)(iii). As the purpose of leaving the chart in the box is to provide the physician with access to the medical information relevant to the examination, the minimum necessary requirement would be satisfied. Examples of measures that could be reasonable and appropriate to safeguard the patient chart in such a situation would be limiting access to certain areas, ensuring that the area is supervised, escorting non-employees in the area, or placing the patient chart in the box with the front cover facing the wall rather than having protected health information about the patient visible to anyone who walks by. Each covered entity must evaluate what measures are reasonable and appropriate in its environment. Covered entities may tailor measures to their particular circumstances. See 45 CFR 164.530(c). Q: A hospital customarily displays patients' names next to the door of the hospital rooms that they occupy. Will the HIPAA Privacy Rule allow the hospital to continue this practice? A: The Privacy Rule explicitly permits certain incidental disclosures that occur as a by-product of an otherwise permitted disclosure—for example, the disclosure to other patients in a waiting room of the identity of the person whose name is called. In this case, disclosure of patient names by posting on the wall is permitted by the Privacy Rule, if the use or disclosure is for treatment (for example, to ensure that patient care is provided to the correct individual) or health care operations purposes (for example, as a service for patients and their families). The disclosure of such information to other persons (such as other visitors) that will likely also occur due to the posting is an incidental disclosure. Incidental disclosures are permitted only to the extent that the covered entity has applied reasonable and appropriate safeguards and implemented the minimum necessary standard, where appropriate. See 45 CFR 164.502(a)(1)(iii). In this case, it would appear that the disclosure of names is the minimum necessary for the purposes of the permitted uses or disclosures described above, and there do not appear to be additional safeguards that would be reasonable to take in these circumstances. However, each covered entity must evaluate what measures are reasonable and appropriate in its environment. Covered entities may tailor measures to their particular circumstances. Q: May mental health practitioners or other specialists provide therapy to patients in a group setting where other patients and family members are present? A: Yes. Disclosures of protected health information in a group therapy setting are treatment disclosures and, thus, may be made without an individual's authorization. Furthermore, the HIPAA Privacy Rule generally permits a covered entity to disclose protected health information to a family member or other person involved in the individual's care. Where the individual is present during the disclosure, the covered entity may disclose protected health information if it is reasonable to infer from the circumstances that the individual does not object to the disclosure. Absent countervailing circumstances, the individual's agreement to participate in group therapy or family discussions is a good basis for inferring the individual's agreement. Q: Are covered entities required to document incidental disclosures permitted by the HIPAA Privacy Rule, in an accounting of disclosures provided to an individual? A: No. The Privacy Rule includes a specific exception from the accounting standard for incidental disclosures permitted by the Rule. See 45 CFR 164.528(a)(1). Q: Do the HIPAA Privacy Rule's provisions permitting certain incidental uses and disclosures apply only to treatment situations or discussions among health care providers? A: No. The provisions apply universally to incidental uses and disclosures that result from any use or disclosure permitted under the Privacy Rule, and not just to incidental uses and disclosures resulting from treatment communications, or only to communications among health care providers or other medical staff. For example: A provider may instruct an administrative staff member to bill a patient for a particular procedure, and may be overheard by one or more persons in the waiting room. A health plan employee discussing a patient's health care claim on the phone may be overheard by another employee who is not authorized to handle patient information. If the provider and the health plan employee made reasonable efforts to avoid being overheard and reasonably limited the information shared, an incidental use or disclosure resulting from such conversations would be permissible under the Rule. Q: Is a covered entity required to prevent any incidental use or disclosure of protected health information? A: No. The HIPAA Privacy Rule does not require that all risk of incidental use or disclosure be eliminated to satisfy its standards. Rather, the Rule requires only that covered entities implement reasonable safeguards to limit incidental uses or disclosures. See 45 CFR 164.530(c)(2). Return to the Introduction / Table of Contents (December 2002 HHS Guidance Document)