Jon Tomes
At a major annual HIPAA conference, Roger Severino, Director of the Department of Health and Human Services (“DHHS”) Office for Civil Rights (“OCR”), revealed its right of access enforcement priorities. Simply stated, its priorities are ensuring patients’ rights under the Privacy Rule, particularly their right of access to their health data. Evidence for this priority comes from the $85,000 settlement with Bayfort Health of St. Petersburg for denying a patient her right of access, which I discussed in my September 22, 2019, blog post.
At the conference, Severino announced that Bayfront Health’s financial penalty was the first in a series of penalties for covered entities that are not providing to patients access to their health data within 30 days of receiving the request for access.
Concerning health apps, the Director pointed out that patients must be permitted to send their PHI to health apps, such as MyChart Mobile, CareAware Connect, GetWellNetwork, Meditech Ambulatory EHR, and many others. But covered entities may deny access only if it poses a security risk to the covered entity. He pointed out that such entities are not liable for what happens to protected health information (“PHI”) after disclosure pursuant to a patient request.
Denial of access is not the only area of interest for OCR; so is excessive costs for copies. In one California case, the business associate who had custody of the electronic records tried to bill the patient for the time spent by its attorney reviewing the documents to determine whether they should be released. Bad idea! They settled with the patient before she even filed her lawsuit.
Thus, we at EMR Legal and Veterans Press recommend that you have a release of information policy that covers, among other disclosures, disclosures to patients/clients or a separate patient access and copying policy so as not to run afoul of the OCR emphasis on this area of HIPAA compliance. If a workforce member who has been properly trained and knows that violation of the policy will result in discipline nevertheless fails to properly provide access, the covered entity or business associate will likely not be sanctioned by OCR. But a mistake by an untrained workforce member who doesn’t have a policy to refer to is an invitation to a civil money penalty (“CMP”) or a settlement in lieu thereof, such as the one that Bayfront suffered.
Alice here: Yes, once again, I am here to try to sell things to keep you and us in business. Surely, after having read Jon’s blog items all these years, and especially today’s blog item, you recognize that you must keep your risk analysis up to date. Make sure that you include malware and ransomware in your initial risk analysis and all updates thereof. If you need help with your risk analysis, either initially or for an update, Jon Tomes has written a Risk Analysis ToolKit to provide the structure and tools to help you complete the requirement under HIPAA. You and your risk analysis team can fill it out and document your decisions as to what is reasonable and appropriate for you to adopt in the way of policies and procedures and be done with it. Or you could send your completed risk analysis to Jon to review and render his professional opinion as the country’s leading HIPAA expert (IMO) as to whether it is sufficient to keep you from getting that free trip to Leavenworth or that very expensive trip to the bank. If you have Jon’s Compliance Guide to HIPAA and the DHHS Regulations, 6th edition, with the accompanying HIPAA Documents Resources Center CD, also 6th edition, you can find the Risk Analysis ToolKit on the CD. It is also available with a review by Jon at https://www.veteranspress.com/product/hipaa-risk-analysis-toolkit. Also, Jon Tomes presented a webinar recently on “How to Do a HIPAA and HITECH Risk Analysis.” You can buy a recording of it at https://www.complianceiq.com/trainings/LiveWebinar/2255/how-to-do-a-hipaa-and-hitech-risk-analysis. Jon is also writing a Risk Analysis Update ToolKit, which will be available for you in the near future on the Premium Member section of our website. Please stay tuned for our announcement when it is up and running for you there. Also, include in your risk analysis the lack of a business associate agreement if you are considering hiring a business associate or a downstream business associate.
If you need guidance on how to draft the policies and procedures that your risk analysis or your newly updated risk analysis has shown are reasonable and appropriate for your organization, Jon has also written The Complete HIPAA Policies and Procedures Guide, with the accompanying CD of several dozen HIPAA policies and procedures templates for you to adapt to your situation, including a release of information policy and a right of access policy. That book also contains a chapter by me on how to write in general, but more specifically on how to write a good policy.
Make sure that you train your entire workforce on HIPAA in general and on the HIPAA policies and procedures according to who needs to know what to perform their duties for you. If you need handy HIPAA training in general, consider Jon’s training video and training manual in either of two forms available here: https://www.veteranspress.com/product/basic-hipaa-training-video-dvd-workbook or https://www.veteranspress.com/product/online-hipaa-training-video-certification. Or you could hire Jon to present HIPAA training onsite to your workforce. Just contact him at jon@veteranspress.com or 816-527-3858.
Keep your written documentation of all of these HIPAA compliance efforts where you can find them easily and quickly, after restarting your heart, if HHS shows up demanding your HIPAA compliance documentation. We recommend keeping all of it in Jon’s Your Happy HIPAA Book. Jon included tabs in the three-ring binder for everything that you need to document and a checklist for each tab. I recommend adding the date that you check off each item in each checklist, as one of our clients suggested to us.
If you have had a security incident that you were unsure as to what exactly to do about, or if you are concerned that you may have one, consider reading Jon’s book How to Handle HIPAA and HITECH Act Breaches, Complaints, and Investigations: Everything You Need to Know.
A sample business associate agreement policy and a sample business associate agreement are posted in the Premium Member section of our website at www.veteranspress.com.
As always, thanks for reading Jon’s blog, buying his books and other HIPAA compliance tools, attending our seminars and webinars, and hiring Jon for HIPAA consulting and training. We wish you every success with your HIPAA compliance efforts.
