Health care providers, health plans, heath care clearinghouses and their business associates heed both the lesson about properly protecting protected health information and the more subtle lesson about the role of employees and other whistleblowers in bringing these violations to the attention of regulators contained in the latest Health Insurance Portability & Accountability Act (HIPAA) resolution agreement.
Late last month, the Department of Health & Human Services Office of Civil Rights (HHS) announced that complaints of a retiring physician over the mishandling of her patient records by Parkview Health System, Inc. (Parkview) prompted the investigation that lead Parkview to agree to pay $800,000 to settle charges that it violated HIPAA’s Privacy Rule.
The resolution agreement settles charges lodged by HHS based on an OCR investigation into the retiring physician’s allegations that Parkview violated the HIPAA Privacy Rule by failing to properly safeguard the records when it returned them to the physician following her retirement.
As a covered entity under the HIPAA Privacy Rule, HIPAA requires that Parkview appropriately and reasonably safeguard all protected health information in its possession, from the time it is acquired through its disposition.
In an investigation prompted by the physician’s complaint, OCR found that Parkview breached this responsibility in its handling of certain physician patient records in helping the physician to transition to retirement.
According to OCR, in September 2008, Parkview took custody of medical records pertaining to approximately 5,000 to 8,000 patients while assisting the retiring physician to transition her patients to new providers, and while considering the possibility of purchasing some of the physician’s practice.
Subsequently on June 4, 2009, Parkview employees, with notice that the physician was not at home, left 71 cardboard boxes of these medical records unattended and accessible to unauthorized persons on the driveway of the physician’s home, within 20 feet of the public road and a short distance away from a heavily trafficked public shopping venue. OCR concluded this conduct violated the Privacy Rule.
To settle OCR’s charges that these actions violated HIPAA, OCR has agreed to pay the $800,000 resolution amount and to adopt and implement a corrective action plan requiring Parkview to revise their policies and procedures, train staff, and provide an implementation report to OCR.
The resolution agreement highlights the role that current or former physicians, employees or others can play in helping OCR to identify HIPAA violations. Health care providers and other covered entities and their business associates should take into account the likelihood that physicians on their own or other facility medical staffs, their employees and other participants in the care delivery system often may have and be motivated to report to government sensitive information about violations of HIPAA or other laws. Since HIPAA and most other laws prohibited covered entities from forbidding or retaliating against a person for objectiving to or reporting the concern and offer whistleblowers potential participation in the reporting and prosecution of violations, employees or other workforce members increasingly make the complaints bring violations to OCR and other regulators.
Whether from an internal employee complaint, a patient or competitor complaint or other source, HIPAA violations carry significant liability risks. The HITECH Act tightened certain rules applicable to the use, access or disclosure of protected health information by covered entities and their business associates. In addition, the HITECH Act added breach notification rules, extended direct responsibility for compliance with HIPAA to business associates, increased penalties for noncompliance with HIPAA and made other refinements to HIPAA’s medical privacy rules and made certain other changes. Furthermore, enforcement of HIPAA and the resulting penalties have increased since the HITECH Act took effect.
With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.
When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same. When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.
For Help With Investigations, Policy Review & Updates Or Other Needs
If you need assistance in auditing or assessing, updating or defending your HIPAA, or other health or other employee benefit, labor and employment, compensation, privacy and data security, or other internal controls and practices, please contact the author of this update, attorney Cynthia Marcotte Stamer at cstamer@solutionslawyer.net or at (469)767-8872.
The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on HIPAA and other privacy and data security, health plan, health care and other human resources and workforce, employee benefits, compensation, internal controls and related matters.
For more than 23 years, Ms. Stamer has counseled, represented and trained employers and other employee benefit plan sponsors, plan administrators and fiduciaries, insurers and financial services providers, third party administrators, human resources and employee benefit information technology vendors and others privacy and data security, fiduciary responsibility, plan design and administration and other compliance, risk management and operations matters. She also is recognized for her publications, industry leadership, workshops and presentations on privacy and data security and other human resources, employee benefits and health care concerns. Her many highly regarded publications on privacy and data security concerns include “Privacy Invasions of Medical Care-An Emerging Perspective.” ERISA Litigation Manual. BNA, 2003-2009; “Privacy & Securities Standards-A Brief Nutshell.” BNA Tax Management and Compliance Journal. February 4, 2005; “Cybercrime and Identity Theft: Health Information Security beyond HIPAA.” ABA Health eSource. May, 2005 and many others. She also regularly conducts training on HIPAA and other privacy and data security compliance and other risk management matters for a broad range of organizations including the Association of State and Territorial Healthcare Organizations (ASTHO), the Los Angeles County Health Department, a multitude of health plans and their sponsors, health care providers, the American Bar Association, SHRM, the Society for Professional Benefits Administrators and many others. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see www.CynthiaStamer.com or contact Ms. Stamer directly.
About Solutions Law Press
Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also may be interested reviewing some of our other Solutions Law Press resources available at http://www.solutionslawpress.com including:
- CMS Proposes Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Pre-Authorization Rule
- Medicare Fraud Strike Force Nails 90 Individuals For Almost $260 Million In False Billing Including 16 Doctors
- 6/30 Comment Deadline For Proposed Inpatient Rehab Payment and Quality Reporting Rules
- Encrypt Mobile Devices & Clean Up Management Documentation Key HIPAA Compliance Messages In New HIPAA Settlements
- Small Smiles Dental Centers Excluded As Federal Health Program Provider For 5 Years
- Latest OCR Resolution Agreement Hits Public Health Department, Shows Needs To Stay Up-To-Date
- NLRB Helps Union Force Another Health Care Employer To Recognize & Bargain With Union
- Hospital Will Pay $75K For Refusing To Hire Disabled Worker
- OCR Assigns More HIPAA Compliance Work To Health Care Providers
- Federal Health Care Fraud Enforcement Recouped Record $4.3 Billion in FY 2013
- CMS Publishes Tools To Help Providers Understand E-Health Administrative Simplification Tools & Processes
- OSHA Hospital Tool Signals OSHA Enforcement RIsk
- Health Insurance Provider Fee Reporting Rules Published
- IRS Extends Existing 501(r) Guidance Reliance Period For ACA-Added Hospital Tax-Exemption Requirements
- HHS “Safer Guides” Tool For Safe EHR Implementation Published
If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at www.SolutionsLawPress.com.
©2014 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.
slphealthcareupdate.com 