The NPRM addressed the issue
of potential danger to patients by stating that when patients were incapacitated, covered health care
providers could exercise discretion — consistent with good
medical practice and prior expression
of patient preference — regarding whether to disclose protected health information for
directory purposes.
Whereas the NPRM would have allowed health care
providers to disclose an incapacitated patient's information to the facility's
directory «at its discretion and consistent with good
medical practice and any prior expressions
of preference
of which the covered entity [was] aware,» the final rule states that in these situations (and in other emergency treatment circumstances), covered health care
providers must make the decision on whether to include the patient's information in the facility's
directory in accordance with professional judgment as to the patient's best interest.