Our partner Elizabeth Litten and I were quoted by our good friend Marla Durben Hirsch in her recent article in Medical Practice Compliance Alert entitled “Doctor is Arrested for Stealing Thousands of Patient Records.” While the full text can be found in the February 16, 2015 issue of Medical Practice Compliance Alert, the following considerations are based upon points discussed in the article.
A theft of patient protected health information (“PHI”) may invoke more than federal and state privacy laws. It can also mean criminal charges under state penal laws. Radiologist James Kessler learned the hard way when he was arrested for allegedly stealing the PHI of nearly 100,000 patients.
Elizabeth was quoted as observing, “There is no indication that it was difficult for Kessler to do this. He didn’t treat all 100,000 patients, so why did he have the ability to copy all of those files? There are technical safety mechanisms and audit controls to limit that access.”
The article pointed out that in some multi-physician situations, ownership of records may need to be negotiated, and the contract may need to specify who gets which records in the event of a separation. For example, if a physician brings patients to a practice, the employee may be entitled to own and take those patients’ records.
I was quoted by Marla: “Implement safeguards to reduce the risk that an employee can access records outside of his or her job responsibilities. Also ensure that the practice provides HIPAA training, so that if an employee does violate HIPAA the action is less likely to be attributed to the employer.”
In the article Elizabeth explained that it is important to have an action plan to handle data breaches. “Be prepared to investigate an incident that may be a security breach using the four steps required by HIPAA’s breach-notification requirements to see whether the breach needs to be reported,” she noted. “Also be prepared to report a breach not only to the HHS and the state under HIPAA and state-notification laws but also to law enforcement when dealing with criminal activity such as theft and hacking.”
Elizabeth also advises in the article to make sure that the employment agreement complies with state law. “Many states have laws regarding the reach of an employment agreement with physicians, such as reasonable non-competes and continuity of care provisions,” she says. “For instance, it varies whether an individual doctor or the practice itself is seen as having the relationship with the patients; there may even be state laws on the rights of patients in the event of a physician’s separation from a practice.”
The article points out that there are many complexities involved in the ownership, custody, creation, access, use, maintenance, transmission and retention of PHI. It may not be possible to prevent hacking or theft of PHI, even with reasonable security and privacy policies and procedures in place that are being followed. However, if a breach or other adverse event occurs, the covered entity or business associate will be well-served by being able to demonstrate that it had and followed such policies and procedures if and when a regulatory authority or court is reviewing a HIPAA violation and determining potential responsibility and liability.