PHI stands for “Protected Health Information” and can include information about an individual such as blood type, condition, injury, etc. This term is subject to a lengthy and complex definition in a regulation under the US Health Insurance Portability and Accountability Act of 1996 (HIPAA), which we will examine in detail below.
The term is unique to the United States, yet several other jurisdictions either also have health sector specific laws that protect health information or their general data protection laws also govern health information. As examples we will look at the GDPR and Ontario’s Personal Health Information Protection Act (PHIPA). A comparison will show, not terribly surprisingly, that all three jurisdictions generally provide similar protection to health information. Yet, for compliance with data privacy regulation, the devil usually lies in the details, hence it is key to be very clear on which jurisdiction governs the health information at issue and what its idiosyncrasies are.
The HIPAA regulation that defines PHI is called the Privacy Rule. It was enacted in October 2002, six years after HIPAA. Under the Privacy Rule, PHI is a subset of “Individually Identifiable Health Information (IIHI), which, in turn, is a subset of “Health Information” (HI).
There are five elements to the definition. (1) PHI describes information that is created or received by a specific entity, (2) composed of particular content relating to an individual’s health, (3) identifies or is reasonably likely to identify the individual, (4) is transmitted in a certain way, and (5) is not excluded from the definition.
The three terms HI, IIHI, and PHI are defined at §160.103 of the Privacy Rule:
Health information means any information, including genetic information, whether oral or recorded in any form or medium, that:
(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and:
(1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and
(i) That identifies the individual; or
(ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.
Protected health information means individually identifiable health information:
(1) Except as provided in paragraph (2) of this definition, that is:
(i) Transmitted by electronic media;
(ii) Maintained in electronic media; or
(iii) Transmitted or maintained in any other form or medium.
(2) Protected health information excludes individually identifiable health information:
(i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;
(ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv);
(iv) records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice.]
(iii) In employment records held by a covered entity in its role as employer; and
(iv) Regarding a person who has been deceased for more than 50 years.
To summarize the clunky definition, examples of PHI include medical records, such as medical diagnoses, treatment information, as well as lab results, billing information, and demographic information.
There exists no act separate from the GDPR on the EU level that specifically protects health information. However, Art. 9 of the GDPR lists health information including biometric and genetic data as a ‘special category’ of personal data. Special categories of data are prohibited to be processed unless limited exceptions apply. Examples of exceptions to the processing prohibition are the consent of the individual, the necessity of processing for vital interests of the individual, and public health interests.
In Art. 9(4) the GDPR allows EU member states to maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health. Hence, it is possible for member states to disallow the processing of health information even if the individual consents. In other words, with regard to health information, the GDPR sets out merely the minimum protection health information receives in the EU and care must be taken that the processing of health information is permitted under the relevant state laws.
Ontario’s PHIPA uses the term Personal Health Information, which could of course also be abbreviated as PHI. It means in fact something very similar to PHI as defined under HIPAA’s Privacy Rule. Notable differences are that the US excludes certain education records and information regarding a person who has been deceased for 50 years or longer. PHIPA protects personal health information past an individual’s death and allows disclosure only for limited purposes, Art. 38(4). PHIPA is also broader as it includes in the definition mixed records, that is, information that does not fall under the definition of personal health information but is kept in the same record.
Personal health information
4 (1) In this Act,
“personal health information”, subject to subsections (3) and (4), means identifying information about an individual in oral or recorded form, if the information,
(a) relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family,
(b) relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual,
(c.1) is a plan that sets out the home and community care services for the individual to be provided by a health service provider or Ontario Health Team pursuant to funding under section 21 of the Connecting Care Act, 2019,
(d) relates to payments or eligibility for health care, or eligibility for coverage for health care, in respect of the individual,
(e) relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance,
(f) is the individual’s health number, or
(g) identifies an individual’s substitute decision-maker.
(2) In this section,
“identifying information” means information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual.
(3) Personal health information includes identifying information that is not personal health information described in subsection (1) but that is contained in a record that contains personal health information described in that subsection.
(4) Personal health information does not include identifying information contained in a record that is in the custody or under the control of a health information custodian if,
(a) the identifying information contained in the record relates primarily to one or more employees or other agents of the custodian; and
(b) the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents.
We have seen that the definition of PHI is actually quite broad and can capture much more than health information, depending on the jurisdiction. Examples are billing and demographic information as well as other information that is kept together with medical information.
Being in the know on what data exists in your organization and where will allow you to determine what is entailed in compliance with the applicable legislation.
Private AI can help you make that determination, even in unstructured data and across 47 languages. Using the latest advancements in Machine Learning, the time to identify and categorize your data can be minimized and compliance facilitated. To see the tech in action, try our web demo, or request an API key to try it yourself on your own data.