Privacy Guidance: When Does the Privacy Rule Allow Covered Entities to Disclose PHI to Law Enforcement?

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Under certain specific circumstances, the Privacy Rule permits covered entities to disclose protected health information (PHI) to law enforcement officials, without the individual’s written authorizationor consent. Disclosures for law enforcement purposes are permitted as follows:

• To comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or a grand jury subpoena. 

• To respond to an administrative request, including an administrative subpoena or summons, a civil or an authorized investigative demand, or similar process authorized under law, provided that: the information sought is relevant and material to a legitimate law enforcement inquiry; the request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought, and de-identified information could not reasonably be used.

• To respond to a request for PHI for purposes of identifying or locating a suspect, fugitive, material witness or missing person. In responding, the covered entity must limit disclosures of PHI to name and address, date and place of birth, social security number, ABO blood type and rh factor (rhesus factor), type of injury, date and time of treatment, date and time of death, and a description of distinguishing physical characteristics. Other information related to the individual’s DNA, dental records, body fluid or tissue typing, samples, or analysis cannot be disclosed under this provision, but may be disclosed in response to a court order, warrant, or written administrative request.

• To respond to a request for PHI about a victim of a crime, and the victim agrees. If, because of an emergency or the person’s incapacity, the individual cannot agree, the covered entity may disclose the PHI if law enforcement officials represent that the PHI is not intended to be used against the victim, is needed to determine whether another person broke the law, the investigation would be materially and adversely affected by waiting until the victim could agree, and the covered entity believes in its professional judgment that doing so is in the best interests of the individual whose information is requested.
  
  Where child abuse victims or adult victims of abuse, neglect or domestic violence are concerned, other provisions of the Privacy Rule apply:

  • Child abuse or neglect may be reported to any law enforcement official authorized by law to receive such reports and the agreement of the individual is not required.

  • Adult abuse, neglect, or domestic violence may be reported to a law enforcement official authorized by law to receive such reports:

    • If the individual agrees;

    • If the report is required by law; or

    • If expressly authorized by law, and based on the exercise of professional judgment, the report is necessary to prevent serious harm to the individual or others, or in certain other emergency situations (see 45 CFR 164.512(c)(1)(iii)(B)).

    • Notice to the individual of the report may be required (see 45 CFR 164.512(c)(2)).

• To report PHI to law enforcement when required by law to do so. For example, state laws commonly require health care providers to report incidents of gunshot or stab wounds, or other violent injuries; and the Rule permits disclosures of PHI as necessary to comply with these laws.

• To alert law enforcement to the death of the individual, when there is a suspicion that death resulted from criminal conduct.

  • Information about a decedent (deceased person) may also be shared with medical examiners or coroners to assist them in identifying the decedent, determining the cause of death, or to carry out their other authorized duties. 

• To report PHI that the covered entity in good faith believes to be evidence of a crime that occurred on the covered entity’s premises.

• When responding to an off-site medical emergency, as necessary to alert law enforcement about criminal activity, specifically, the commission and nature of the crime, the location of the crime or any victims, and the identity, description, and location of the perpetrator of the crime. 

• When consistent with applicable law and ethical standards:

  • To a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public.

  • To identify or apprehend an individual who appears to have escaped from lawful custody.

• For certain other specialized governmental law enforcement purposes, such as:

  • To federal officials authorized to conduct intelligence, counter-intelligence, and other national security activities under the National Security Act, or to provide protective services to the President and others and conduct related investigations.

  • To respond to a request for PHI by a correctional institution or a law enforcement official having lawful custody of an inmate or others if they represent such PHI is needed to provide health care to the individual; for the health and safety of the individual, other inmates, officers or employees of or others at a correctional institution or responsible for the transporting or transferring inmates; or for the administration and maintenance of the safety, security, and good order of the correctional facility, including law enforcement on the premises of the facility.

Except when required by law, the disclosures to law enforcement summarized above are subject to a minimum necessary determination by the covered entity. When reasonable to do so, the covered entity may rely upon the representations of the law enforcement official (as a public officer) as to what information is the minimum necessary for their lawful purpose. If the law enforcement official making the request for information is not known to the covered entity, the covered entity must verify the identity and authority of such person prior to disclosing the information.