We have written several times about U.S. Department of Health and Human Services Office for Civil Rights’ “HIPAA Right of Access Initiative.” In its most recent enforcement action under the Initiative, the 44th such enforcement action, the OCR investigated a complaint made against a psychotherapist concerning the alleged refusal to provide medical records. Ultimately, and even after the OCR provided “technical assistance,” the OCR claimed the covered entity still failed to provide the records.

“Under HIPAA, parents, as the personal representatives of their minor children, generally have a right to access their children’s medical records,” said OCR Director Melanie Fontes Rainer. “It should not take an individual or their parent representative nearly six years and multiple complaints to gain access to patient records.”

The settlement resulted in a $15,000 resolution amount and required compliance with a two-year corrective action plan (CAP). The CAP includes the following requirements for the solo practitioner:

  • Review and revise right to access policies within 30 days of the settlement, and review and adopt OCR recommend changes to such policies.
  • Provide to the OCR right to access training materials within 60 days of the settlement for OCR’s review and approval.
  • Following OCR’s approval of the training materials, provide training to all employees within 30 days and annually thereafter.
  • Provide the requested records to the complainant with 15 days of the settlement.
  • Within 90 days of receiving OCR’s approval of the right to access policies and procedures, and every 90 days thereafter, submit to OCR a detailed list of requests for access received by the healthcare provider, and documentation for any denials of access.
  • In the event an employee of the provider fails to comply with the right to access policies, the provider must notify OCR within 30 days and include a description of the failure and mitigation plan.
  • Within 120 days after OCR’s approval of the provider’s right to access policies and procedures, submit to OCR a report summarizing the status of implementation.
  • Within 60 days after the end of each year of the CAP, submit to OCR an annual report regarding the healthcare provider’s compliance with the CAP.   

For small providers, the HIPAA rules can be confusing; they also are more than 20 years old. So, smaller practitioners, particularly those newer to practice, simply may not be fully aware of the scope and obligations under of the HIPAA privacy, security, and breach notification rules. Compliance goes well beyond handing patients a template Notice of Privacy Practices and having a secure electronic medical record platform.

The full scope of the HIPAA rules is beyond the scope of this post, but at least for the right to access and considering the OCR’s Enforcement Initiative, here are some resources to help avoid patient complaints and an onerous OCR corrective enforcement action:

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, 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, Joe 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 – Joe 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 – Joe’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.

Joe 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.

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