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THE WHITE HOUSE

Office of the Press Secretary


For Immediate Release December 20, 2000

EXECUTIVE ORDER


               TO PROTECT THE PRIVACY OF PROTECTED HEALTH
                INFORMATION IN OVERSIGHT INVESTIGATIONS

By the authority vested in me as President of the United States by the Constitution and the laws of the United States of America, it is ordered as follows:

Section 1. Policy.

It shall be the policy of the Government of the United States that law enforcement may not use protected health information concerning an individual that is discovered during the course of health oversight activities for unrelated civil, administrative, or criminal investigations of a non-health oversight matter, except when the balance of relevant factors weighs clearly in favor of its use. That is, protected health information may not be so used unless the public interest and the need for disclosure clearly outweigh the potential for injury to the patient, to the physician-patient relationship, and to the treatment services. Protecting the privacy of patients' protected health information promotes trust in the health care system. It improves the quality of health care by fostering an environment in which patients can feel more comfortable in providing health care professionals with accurate and detailed information about their personal health. In order to provide greater protections to patients' privacy, the Department of Health and Human Services is issuing final regulations concerning the confidentiality of individually identifiable health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA applies only to "covered entities," such as health care plans, providers, and clearinghouses. HIPAA regulations therefore do not apply to other organizations and individuals that gain access to protected health information, including Federal officials who gain access to health records during health oversight activities.

Under the new HIPAA regulations, health oversight investigators will appropriately have ready access to medical records for oversight purposes. Health oversight investigators generally do not seek access to the medical records of a particular patient, but instead review large numbers of records to determine whether a health care provider or organization is violating the law, such as through fraud against the Medicare system. Access to many health records is often necessary in order to gain enough evidence to detect and bring enforcement actions against fraud in the health care system. Stricter rules apply under the HIPAA regulations, however, when law enforcement officials seek protected health information in order to investigate criminal activity outside of the health oversight realm.

In the course of their efforts to protect the health care system, health oversight investigators may also uncover evidence of wrongdoing unrelated to the health care system, such as evidence of criminal conduct by an individual who has sought health care. For records containing that evidence, the issue thus arises whether the information should be available for law enforcement purposes under the less restrictive oversight rules or the more restrictive rules that apply to non-oversight criminal investigations.

A similar issue has arisen in other circumstances. Under 18 U.S.C. 3486, an individual's health records obtained for health oversight purposes pursuant to an administrative subpoena may not be used against that individual patient in an unrelated investigation by law enforcement unless a judicial officer finds good cause. Under that statute, a judicial officer determines whether there is good cause by weighing the public interest and the need for disclosure against the potential for injury to the patient, to the physician-patient relationship, and to the treatment services. It is appropriate to extend limitations on the use of health information to all situations in which the government obtains medical records for a health oversight purpose. In recognition of the increasing importance of protecting health information as shown in the medical privacy rule, a higher standard than exists in 18 U.S.C. 3486 is necessary. It is, therefore, the policy of the Government of the United States that law enforcement may not use protected health information concerning an individual, discovered during the course of health oversight activities for unrelated civil, administrative, or criminal investigations, against that individual except when the balance of relevant factors weighs clearly in favor of its use. That is, protected health information may not be so used unless the public interest and the need for disclosure clearly outweigh the potential for injury to the patient, to the physician-patient relationship, and to the treatment services.

Sec. 2. Definitions.

(a) "Health oversight activities" shall include the oversight

     activities enumerated in the regulations concerning the
     confidentiality of individually identifiable health information
     promulgated by the Secretary of Health and Human Services pursuant
     to the "Health Insurance Portability and Accountability Act of
     1996," as amended.

(b) "Protected health information" shall have the meaning ascribed to

     it in the regulations concerning the confidentiality of
     individually identifiable health information promulgated by the
     Secretary of Health and Human Services pursuant to the "Health
     Insurance Portability and Accountability Act of 1996," as amended.

(c) "Injury to the patient" includes injury to the privacy interests of

the patient.

Sec. 3. Implementation.

(a) Protected health information concerning an individual patient

     discovered during the course of health oversight activities shall
     not be used against that individual patient in an unrelated civil,
     administrative, or criminal investigation of a non-health oversight
     matter unless the Deputy Attorney General of the U.S Department of
     Justice, or insofar as the protected health information involves
     members of the Armed Forces, the General Counsel of the U.S.
     Department of Defense, has authorized such use.

(b) In assessing whether protected health information should be used

     under subparagraph (a) of this section, the Deputy Attorney General
     shall permit such use upon concluding that the balance of relevant
     factors weighs clearly in favor of its use.  That is, the Deputy
     Attorney General shall permit disclosure if the public interest and
     the need for dis-closure clearly outweigh the potential for injury
     to the patient, to the physician-patient relationship, and to the
     treatment services.

(c) Upon the decision to use protected health information under

     subparagraph (a) of this section, the Deputy Attorney General, in
     determining the extent to which this information should be used,
     shall impose appropriate safeguards against unauthorized use.

(d) On an annual basis, the Department of Justice, in consultation

     with the Department of Health and Human Services, shall provide to
     the President of the United States a report that includes the
     following information:

          (i) the number of requests made to the Deputy Attorney General
          for authorization to use protected health information
          discovered during health oversight activities in a non-health
          oversight, unrelated investigation;

          (ii) the number of requests that were granted as applied for,
          granted as modified, or denied;

          (iii) the agencies that made the applications, and the number
          of requests made by each agency; and

          (iv) the uses for which the protected health information was
          authorized.

(e) The General Counsel of the U.S. Department of Defense will comply

     with the requirements of subparagraphs (b), (c), and (d), above.
     The General Counsel also will prepare a report, consistent with the
     requirements of subparagraphs (d)(i) through (d)(iv), above, and
     will forward it to the Department of Justice where it will be
     incorporated into the Department's annual report to the President.

     Sec. 4.  Exceptions.

(a) Nothing in this Executive Order shall place a restriction on the

     derivative use of protected health information that was obtained by
     a law enforcement agency in a non-health oversight investigation.

(b) Nothing in this Executive Order shall be interpreted to place a

restriction on a duty imposed by statute.

(c) Nothing in this Executive Order shall place any additional

     limitation on the derivative use of health information obtained by
     the Attorney General pursuant to the provisions of 18 U.S.C. 3486.

(d) This order does not create any right or benefit, substantive or

     procedural, enforceable at law by a party against the United
     States, the officers and employees, or any other person.

WILLIAM J. CLINTON

                                   THE WHITE HOUSE,
                                   December 20, 2000.

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