HIPAA: Second Settlement this Year Related to Right to Access Initiative | Blogs | Health Care Law Today | Foley & Lardner LLPWhen providers, health plans, business associates, and even patients and plan participants think of the HIPAA privacy and security rules (‘HIPAA Rules”), they seem to be more focused on the privacy and security aspects of the HIPAA Rules. That is, for example, safeguarding an individual’s protected health information (PHI) to avoid data breaches or avoiding improper disclosures to persons without authority for receiving same. An equally important aspect of the HIPAA Rules, however, is ensuring patient access to health records, as shown by recent enforcement activity announced yesterday by the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS).

Last year, OCR commenced its Right of Access Initiative, an enforcement priority in 2019 to support individuals’ right to timely access to their health records at a reasonable cost. At least one study found providers are struggling to fully comply with the right to access requirement under HIPAA, rights which also exist under state law. A study by medRxiv reported in HIPAAJournal highlights this issue. During the study, 51 providers were sent medical record access requests and the results showed:

More than half (51%) of the providers assessed were either not fully compliant with the HIPAA right of access or it too[k] several attempts and referrals to supervisors before requests were satisfied in a fully compliant manner…

The researchers also conducted a telephone survey on 3,003 healthcare providers and asked about policies and procedures for releasing patient medical records. The researchers suggest as many as 56% of healthcare providers may not be fully compliant with the HIPAA right of access. 24% did not appear to be fully aware of the fee limitations for providing copies of medical records.

What is the right to access under HIPAA?

The HIPAA Privacy Rule generally requires HIPAA covered entities (health plans and most health care providers) to provide individuals, upon request, with access to PHI about them in one or more “designated record sets” maintained by or for the covered entity. This includes the right to inspect or obtain a copy, or both, as well as to direct the covered entity to transmit a copy to a designated person or entity of the individual’s choice. This right applies for as long as the covered entity (or its business associate) maintains the information, regardless of the date the information was created, and whether the information is maintained in paper or electronic systems onsite, remotely, or is archived.

When implementing this rule, covered entities and their business associates have several issues to consider, such as:

  • What information is subject to the right and what information is not, such as psychotherapy notes.
  • Confirming the authority of “personal representative” to act on behalf of an individual.
  • Procedures for receiving and responding to requests – such as written request requirements, verifying the authority of requesting parties, timeliness of response, whether and on what grounds requests may be denied, and fees that can be charged for approved requests.

To assist covered entities (and business associates), the OCR provides a summary of right of access issues, as well as a set of frequently asked questions.

Enforcement of the Right to Access.

The five enforcement actions announced yesterday are not the first enforcement actions taken by OCR. In September 2019, the OCR settled a compliant with a provider for $85,000 after it alleged the provider failed to respond to a patient’s request for access. In December 2019, the OCR settled a second complaint, again for $85,000, to address similar allegations, failure to respond timely, as well as failing to forward the medical records in the requested format and charging more than the reasonably cost-based fees allowed under HIPAA.

The five more recent cases involve very similar allegations against mostly small health care providers, at least in one case a not-for-profit, namely, the failure to provide patients with the right to access their protected health information under the HIPAA Rules. The total amount of the settlements with these fine entities is $136,500.

Patients can’t take charge of their health care decisions, without timely access to their own medical information,” said OCR Director Roger Severino. “Today’s announcement is about empowering patients and holding health care providers accountable for failing to take their HIPAA obligations seriously enough,” Severino added.

Getting Compliant

Providers receive all kinds of requests for medical and other records in the course of running their businesses. Reviewing and responding to these requests no doubt creates administrative burdens. However, buying forms online might not get the practice all it needs, and could put the practice at additional risk if those are followed without considering state law or are not implemented properly.

Putting in place relatively simple policies, carefully developing template forms, assigning responsibility, training, and documenting responses can go a long way toward substantially minimizing the risk an OCR enforcement action and its severity. Providers also should be considering sanctions under state law that also might flow from failing to provide patients access to their records. It is worth nothing that in some cases state law may be more stringent than HIPAA concerning the right to access, requiring modifications to the processes practices follow for providing access.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.