Current through Register Vol. XLI, No. 18, May 3, 2024
Section 65-28-5 - Patient Opt-Out5.1. The Network shall provide a patient with a reasonable and meaningful opportunity as set forth in this rule to make an informed choice about whether his or her protected health information may be disclosed and used in the Network's health information exchange.5.2. Any patient who does not want to consent to the disclosure and use of his or her protected health information in the health information exchange may elect to opt-out. Affirmative action by the patient is not necessary when a patient consents to his or her participation in the Network's health information exchange.5.3. To ensure that patients are able to make an informed choice, participating organizations shall provide each patient with educational information during the first patient encounter after the participating organization enrolls in the Network's health information exchange. Where possible, patients may be provided with the educational information prior to the enrollment of the participating organization in the Network's health information exchange. This educational information shall be provided in writing, and if necessary, in any other format (on-line presentation, verbal counseling, foreign language presentation, etc.) designed to ensure that its contents are communicated to and understood by the patient.5.4. This educational information shall consist of, at a minimum, a written patient notice developed by the Network which explains in plain language: 5.4.a. The function of the Network's health information exchange;5.4.b. The permissible purposes for which a patient's protected health information may be disclosed to and used by other participating organizations through the health information exchange;5.4.c. The types of protected health information which may be disclosed to other participating organizations;5.4.d. The need for the patient's specific written authorization to disclose certain categories of sensitive health information;5.4.e. The fact that a patient's personal demographic data shall be included in a master patient index maintained by the Network to permanently record his or her consent decision;5.4.f. The potential benefits and risks of participation in the Network; and5.4.g. The fact that a patient's participation in the Network is voluntary and subject to a patient's right to opt-out.5.5. The written patient notice may be provided to the patient as an addendum to a participating organization's notice of privacy practices. The participating organization is encouraged to record the delivery of the patient notice in the patient's medical record.5.6. In addition to the written patient notice, the Network shall also undertake the following efforts to educate and publicly notify patients of the existence and operation of its health information exchange: 5.6.a. The Network shall publish its written patient notice and a list of all then current participating organizations during the first week of January, April, July, and October of each year in the State Register.5.6.b. The Network shall publish its written patient notice in the form of a Class III legal advertisement in at least one qualified newspaper of general circulation, as defined by W. Va. Code § 59-3-1 et seq. in each defined area that the Network intends to serve, as well as the expected date of implementation in each defined area. This Class III legal advertisement shall be published at least thirty (30) days prior to the date upon which the Network's health information exchange becomes operational in the defined area;5.6.c. The Network shall prepare and distribute educational posters for display by its participating organizations in public areas that are designed to inform patients about the health information exchange and their right to opt-out of the exchange;5.6.d. The Network shall include the written patient notice, as well as other educational information designed to inform patients about the health information exchange and their right to opt-out, on its internet website. At this website, the Network may include the capability for a patient to opt-out of the health information exchange. The Network shall also require participating organizations to include the written patient notice on their internet websites, if any; and5.6.e. The Network shall encourage prospective participating organizations to begin the distribution of the written patient notice at each of its patient encounters, to include the written patient notice on its own internet website, and to display the Network's educational posters in public areas of its facility.5.7. A patient shall be considered an active participant in the health information exchange until and unless he or she opts-out. A patient becomes an active participant for all purposes after the enrollment of his or her participating organization in the Network's health information exchange, or after a data supplier discloses or otherwise makes available his or her protected health information for access through the Network's health information exchange.5.8. A patient may opt-out of the health information exchange during a patient encounter with a participating organization, or if available on the Network website, by registering his or her decision to opt-out on-line. Both data users and full service participants must offer patients the opportunity to opt-out.5.9. A participating organization shall communicate a patient's decision to opt-out immediately, and the Network shall permanently record that decision in a master patient index maintained by the Network. The Network shall maintain personal demographic information regarding all potential patients in this master patient index, even if the decision is made to opt-out, in order to minimize the possibility of improperly matching patients. 5.10. A patient may elect to opt-out of the health information exchange at any time, even after having been already a participant. However, any exchange of protected health information that may have occurred prior to a patient's decision to opt-out shall not be reversed.5.11. For a patient who has opted-out, the Network shall not disclose protected health information through the health information exchange except for public health reporting to a state or federal agency.5.12. A patient may revoke his or her decision to opt-out of the health information exchange at any time by completing a revocation form developed and approved by the Network. A patient's election to revoke his or her decision to opt-out may be accomplished either during a patient encounter at a participating organization, or if available, on-line at a website maintained by the Network.