Today’s U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announcement of resolution agreements with three separate dental practices warns all health care providers, health plans and health care clearinghouses of the importance of complying with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule’s patient right of access and other federal and state mandates about providing patients and health plan members access to their records.
The following three resolution agreements OCR announced September 20, 2022 underscore the importance and necessity of compliance with the right of access and other HIPAA requirements:
Chicago-based Family Dental Care, P.C. (“FDC”), paid $30,000.00 to resolve potential OCR charges aiding from OCR’s investigation located in Chicago, Illinois. OCR received a complaint on August 8, 2020, alleging that FDC failed to provide a former patient with timely access to her complete medical records. The former patient requested her entire medical records in May 2020, but received only portions. The former patient filed a complaint with OCR, and during OCR’s investigation, FDC provided her with the remainder of her records in October 2020. Thus, FDC did not provide a complete copy of the records until more than five months after the request was made. OCR’s investigation determined that FDC’s failure to provide timely access to the requested medical records was a potential violation of the HIPAA right of access provision. FDC agreed to pay $30,000 and implement a corrective action plan.
Georgia based dental and orthodontics provider Great Expressions Dental Center of Georgia, P.C. (“GEDC-GA”) paid $80,000 to resolve concerns arising from OCR’s investigation of a November 2020 complaint alleging that GEDC-GA would not provide an individual with copies of her medical records because she would not pay GEDC-GA’s $170 copying fee. The individual first requested her records in November 2019, but did not receive them until February 2021, over a year later. OCR’s investigation determined that GEDC-GA’s failure to provide timely access to the requested medical records, and its practice of assessing copying fees that were not reasonable and cost-based, were potential violations of the HIPAA right of access provision. GEDC-GA agreed to pay $80,000 and implement a corrective action plan.
Las Vegas, Nevada dental practice B. Steven L. Hardy, D.D.S., LTD, doing business as Paradise Family Dental (“Paradise”) paid $25,000 to resolve potential violations uncovered after OCR investigated an October 26, 2020 complaint alleging that Paradise had failed to provide a mother with copies of her and her minor child’s protected health information. The mother submitted multiple record requests between April 11, 2020, and December 4, 2020, but Paradise did not send the records until December 31, 2020, more than eight months after her initial request. OCR’s investigation determined that Paradise’s failure to provide timely access to the requested medical records was a potential violation of the HIPAA right of access provision. Paradise agreed to pay $25,000 and implement a corrective action plan.
The three newly announced resolution agreements bring to 41 the number of resolution agreements OCR has announced since announcing its program targeting access right violations. OCR call Rosov call Riedel access violations are the most common of all reported HIPAA violations.
OCR made clear its announcements of these resolution agreements to “send an important message to dental practices of all sizes that are covered by the HIPAA Rules to ensure they are following the law,” said OCR Director Melanie Fontes Rainer. “Patients have a fundamental right under HIPAA to receive their requested medical records, in most cases, within 30 days. I hope that these actions send the message of compliance so that patients do not have to file a complaint with OCR to have their medical records requests fulfilled.”
Health care providers as well as health plans should heed thus strong warning by ensuring their compliance with the HIPAA right of access as well as other applicable rules about providing patient and plan members copies of records or other data. for healthcare providers, you can please but are not limited to State medical records, ethics, and other rules and regulations. Or health plan, the HIPAA Records access rules are in addition to the Employee Retirement Invome Security Act mandates to provide plan records when requested.
If circumstances come to light that indicate a breach of the access or any other HIPAA standards, Covered Entities also promptly should work with legal counsel timely to investigate, determine and provide any required notifications or other corrective action and document their actions to meet applicable HIPAA and other legal obligations and mitigate liability.
Of course, all HIPAA-covered entities and their leaders always must keep in mind that their responsibilities and potential liability for mishandling protected health information could extend well beyond HIPAA. In addition to the civil monetary penalties HIPAA authorizes, mishandling the collection, protection or disposal of PHI or other sensitive data also can trigger other legal exposures. For instance, as HIPAA compliance is part of the Conditions of Participation that Medicare participating Covered Entities and Medicare Advantage Plans must meet to qualify for program participation, noncompliance could trigger program exclusion, False Claims Act or related exposures. Deficiencies in security or destruction of credit card, banking or other PHI that also qualifies as personal financial information could trigger exposure under Federal Trade Commission, state identity theft and privacy or other laws. Public companies and their leaders also may need to evaluate if deficiencies in their security or destruction protocols trigger investor disclosure obligations under Securities and Exchange Commission rules or other federal or state laws. Considering these and other exposures, documented, compliance and defensibility of PHI and other sensitive information use, protection, disclosure and destruction should rank high among the priorities of all Covered Entities and their leaders.
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on health and managed care industry legal, public policy and operational concerns.
Ms. Stamer’s work throughout her 30 plus year career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns.
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