Would a covered entity ever need an authorization rather than a consent for uses or disclosures of PHI for TPO?
Yes. The Privacy Rule requires providers to obtain authorization and not consent to use or disclose PHI maintained in psychotherapy notes for treatment by persons other than the originator of the notes, for payment, or for health care operations purposes, except as specified in the Privacy Rule (§ 164.508(a)(2)).
In addition, because the consent is only for a use or disclosure of PHI for the TPO purposes of the covered entity obtaining the consent, an authorization is also required if the disclosure is for the TPO purposes of an entity other than the provider who obtained the consent. For example, a health plan seeking payment for a particular service from a second health plan, such as in coordination of benefits or secondary payer situations, may need PHI from a physician who rendered the health care services. In this case, the provider typically has been paid, and the transaction is between the plans. Since the provider’s disclosure is for the TPO purposes of the plan, it would not be covered by the provider’s consent. Rather, an authorization, and not a consent, would be the proper document for the plan to use when requesting such a disclosure.
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