(A) The PHI is limited to proof of
immunization;
(B) The school is required by law to obtain
proof of immunization prior to admitting the individual (such as a “school
entry” law that prohibits a child from attending school unless the school has
proof that the child has been immunized);
and
(C) The Provider obtains and documents
agreement to the disclosure (“Agreement”) from either:
(1) A parent, guardian, or other person
acting in loco parentis of the individual,
if the individual is an unemancipated minor; or
(2) The individual,
if the individual is an adult or emancipated minor.
On
September 19, 2013, HHS released guidance
further clarifying the scope of a covered entity’s authority to release PHI to
a school (“Guidance”). First, the Agreement may be obtained orally or in
writing, and need not be signed or contain the other elements required in a
formal, written HIPAA authorization for disclosure of PHI. Although the Agreement does not have to be in
writing, the Provider must document that the Agreement was made. The Final Rule and Guidancedo not
specifically describe how the Agreement should be documented, but the Guidance
recognizes that documentation may be satisfied, for example, by making a copy
of a written request by a parent to disclose proof of immunization, or by a
notation in a child’s medical record about a phone conversation with a parent
who requests that the Provider disclose proof of immunization. HHS also
clarifies that the required Agreement will remain in effect until the parent,
guardian, or other person acting in loco parentis, or student, if
applicable, revokes it.
HHS
stated that it hopes this new rule ensures that schools will receive
immunization documentation in a timely manner and will be able to admit
children without undue delay.
If
you have any questions regarding the HIPAA Final Rule, or Releasing
Immunization Records to Schools, please contact Susan Ziel (sziel@kdlegal.com),
Meghan McNab (mmcnab@kdlegal.com), Mark Morrell (mmorrell@kdlegal.com), or Jaya
White (jwhite@kdlegal.com).