The Report to Congressional Committees of the U.S. Government Accountability Office (“GAO Report”), required under the 21st Century Cures Act, came out about a month earlier than required, but this early bird failed to catch what continues to be a wriggling worm – what can a covered entity charge for these copies?

As discussed in our February 2017 blog post, the Office for Civil Rights issued guidance (“OCR Guidance”) over 2 years ago attempting to clarify that HIPAA charge limits (to a “reasonable, cost-based fee”) apply when an individual (or a third party) requests access to the individual’s medical records. The HIPAA charge limits applicable to access requests apply even if state law permits higher charges for the copies. The OCR Guidance includes a table illustrating the differences between a HIPAA authorization and an access request and notes that the “primary difference” between the two being that one (the authorization) is a “permitted disclosure” and one (the access request) is a “required disclosure”.

In another of our posts on this topic (back in May of 2016), we highlighted the difficulty faced by a covered entity in knowing what amounts may be charged for medical records copies, particularly when a third party requests the copy. We noted HHS’s suggestion that the covered entity ask the individual “whether the request was a direction of the individual or a request from the third party.” The former would be an access request subject to charge limits and other HIPAA requirements, whereas the latter would be “merely a HIPAA authorization”. A wriggling worm, indeed.

The GAO Report attempts to pin down the worm. It describes three types of medical record requests:

*          a patient request, whereby the patient or former patient requests access to or a copy of medical records

*          a patient-directed request, whereby the patient or former patient requests that a copy of the patient’s medical records be sent directly to another person or entity (“For example, a patient might request that her medical records be forwarded to another provider because the patient is moving or wants a second opinion.”)

*          a third-party request, whereby a third party, such as an attorney, obtains permission from the patient (via a HIPAA authorization) to access the patient’s medical records

An explanatory footnote suggests that the first two types of requests are access requests under HIPAA (meaning that charge limits and other HIPAA requirements apply), while the third type of request is an authorization under HIPAA (meaning that the provider is not required to disclose the records and the access request charge limits do not apply). Later, the GAO Report states: “In contrast with patient and patient-directed requests, the fees for third-party requests are not limited by HIPAA’s reasonable, cost-based standard for access requests and are instead governed by state laws.”

Unfortunately, this is where the worm has a chance to get away. First, the example used to describe a patient-directed request implies that a patient access request is required for the provider to forward the medical records to another treating provider. In fact, HIPAA permits disclosure of medical records for treatment purposes without the need for a HIPAA authorization or access request (see OCR Guidance language following table), and, thus, charging even a “reasonable, cost-based” fee for such disclosures may be frowned upon by OCR. Second, these three examples overlook the possibility that a patient-directed request may come from a third party. An access request must be in writing, be signed by the individual, and clearly identify where the medical record copies should be sent, but HIPAA does not prohibit the individual from directing that a third party (such as the individual’s attorney) transmit the individual’s access request to the provider.

Moreover, a recent court decision further muddies this issue. In a February 2018 U.S. district court decision from Alabama, Bocage v. Acton Corp., the court rejected plaintiffs’ claim that they were overcharged search and retrieval fees in violation of HIPAA. The plaintiffs’ attorneys had requested medical records by way of HIPAA authorizations, so the court determined that the fee limitations associated with individual access requests did not apply. Unfortunately, while the decision quotes the OCR Guidance (“The [access request] fee limits apply … regardless of whether the access request was submitted to the covered entity by the individual directly or forwarded to the covered entity by a third party on behalf and at the direction of the individual (such as by an app being used by the individual)… ”), the decision incorrectly suggests that the individual’s attorney cannot be the third party making an access request on behalf of and at the direction of the individual.

The short-term fix for patients hoping to avoid high fees when requesting medical records? Make sure the request is not identified as a HIPAA authorization and, if you are requesting the records in connection with litigation, consider sending it yourself rather than directing your attorney to send it.

The aftermath of the Orlando nightclub tragedy has led to much discussion about ways that healthcare providers can and should deal with compliance with health information privacy requirements in the face of disasters that injure or sicken many individuals in a limited time frame. One aspect is the pressure to treat patients while simultaneously fulfilling the need to supply current and relevant information to family, friends and the media about patient status without breaching HIPAA by improperly disclosing protected health information (PHI).

Our partner Elizabeth Litten has already posted a prior blog entry on some HIPAA issues that surfaced in the Orlando disaster. She and I were recently featured again by our good friend Marla Durben Hirsch in her article in the August, 2016 issue of Medical Practice Compliance Alert entitled “After Orlando: Keep family, friends informed without violating HIPAA.” Full text can be found in the August, 2016 issue, but a synopsis is below.

Some of the tips provided by Litten and Kline in the article include the following:

  1. Kline: Review and update your practice’s disaster/emergency plan. “[Orlando] was such a disaster, and [there was an appearance created that] the hospital didn’t approach it with calmness and a professional approach.”
  2. Litten: One of the easily forgotten parts of HIPAA is that a covered entity can exercise professional discretion. “It’s best if the patient can agree [to the disclosure]. But if the patient can’t give consent, the provider has ways to provide information and exercise that discretion.” Kline added, “So there’s no need for a HIPAA waiver; the rule anticipates such situa­tions.”
  3. Litten: Make sure that the practice’s desig­nated spokesperson is knowledgeable about HIPAA. “This includes what can and can’t be divulged to friends, family members and the media.
  4. Litten: Educate clinicians on professional discretion. “Remember when disclosing information to view it through the eyes of the patient. If you reasonably believe that a patient would want the information communicated, it’s OK. The professional is acting as proxy for a patient who can’t speak.” 
  5. Kline: Share contact information so staff can quickly get guidance from the practice’s compliance officer, especially during emer­gency situations. “For instance, a clinician being bombarded in the emergency department may have a question regarding whether she can tell a patient’s relative that the patient has been treated and released (she can).”
  6. Kline: Add this information to your practice’s HIPAA compliance program. “If you have policies and procedures on this, docu­ment that training occurred, and [if it] can show you attempted to comply with HIPAA, a court would be very hard pressed to find liability if a patient later claims invasion of privacy.” 
  7. Kline: Don’t discriminate. “So clinicians exercis­ing their professional discretion in informing friends and family members need to be gender neutral and objective.”
  8. Kline and Litten: Train administrative staff about HIPAA. “Not only should medical staff know the rules, but so should other staff members such as front desk staff, managers and billing personnel. It’s pretty bad when the head of a hospital is so uninformed about HIPAA that he provides misinformation to the mayor.”
  9. Kline and LittenHighlight the limitations of the disclosure. “You can’t go overboard and reveal more than is allowed. For instance, a provider can tell a friend or family member about an incapacitated patient’s location, general condition or death. But that doesn’t mean that he can divulge that the lab tests indicate the patient has hepatitis. HIPAA also requires that a disclosure be made only of information that’s ‘minimally necessary.'”

Planning ahead by healthcare providers can help them comply with HIPAA if a disaster situation occurs to keep family and friends informed as to patient status, while contemporaneously carrying out their most important tasks: saving lives, alleviating pain and providing quality care to victims. This approach, however, combined with a good helping of common sense and professionalism, is not confined to disasters – it should be the practice of providers for non-emergent situations as well.

 

We blogged on this back in early May, but compliance with individuals’ rights to access their PHI under HIPAA is even more critical now that OCR has announced that its current HIPAA audits will focus on an audited Covered Entity’s documentation and process related to these access rights.

In an email sent to listserv participants on July 12, 2016 from OCR-SECURITY-LIST@LIST.NIH.GOV, the U.S. Department of Health and Human Services (HHS) included the following list of areas of focus for the desk audits:

Requirements Selected for Desk Audit Review
Privacy Rule
Notice of Privacy Practices & Content Requirements  [§164.520(a)(1) & (b)(1)]
Provision of Notice – Electronic Notice   [§164.520(c)(3)]
Right to Access  [§164.524(a)(1), (b)(1), (b)(2), (c)(2), (c)(3), (c)(4), (d)(1), (d)(3)]
Breach Notification Rule
Timeliness of Notification  [§164.404(b)]
Content of Notification  [§164.404(c)(1)]
Security Rule
Security Management Process —  Risk Analysis  [§164.308(a)(1)(ii)(A)]
Security Management Process — Risk Management  [§164.308(a)(1)(ii)(B)]

As discussed in our prior post, HHS issued guidance regarding individuals’ rights to access PHI earlier this year. Here is a link to this PHI access guidance:  Individuals’ Right under HIPAA to Access their Health Information | HHS.gov

The HHS access guidance stresses that Covered Entities should provide individuals with “easy access” to their PHI and cannot impose “unreasonable measures” on the individuals with respect to this right to access. The HHS access guidance provides important information regarding the different rules that apply when an individual provides a signed authorization for release of their PHI versus when an individual is really making a request for access to his or her PHI.

If an individual is asking for the PHI to be provided to him or her, this is really a request for access even if the individual is providing a signed authorization for release of the PHI.

If the individual is asking the PHI to be directed to a third party, this can be either a situation when a signed authorization is needed or can be an access request, depending on who is really originating the request (the individual or the third party). A Covered Entity cannot require an individual to provide a signed authorization to make an access request.  A Covered Entity can require that the access request be in writing and can require use of a form as long as it does not impose undue burden on the individual’s right to access.

The HHS access guidance also indicates that if an individual requests that his or her PHI be provided by email, the Covered Entity is required to do so and further, if the individual requests in writing that the PHI be provided by unsecure, unencrypted email, the Covered Entity is required to do so after notifying the individual in writing of the risks of this method of transmission. (This notice can be included on the access request form.)

As a result of the HHS access guidance, a Covered Entity may need to review and amend its HIPAA Privacy Policies and Procedures governing individual rights with respect to access to PHI, the form it uses for individual access requests, and its employee training protocols to be sure employees aren’t requiring a patient  (or member, in the case of a health plan Covered Entity) to sign an authorization form when the patient is requesting access to PHI.

Daily struggles to protect personal data from hacking, phishing, theft and loss make it easy to forget that HIPAA is not just about privacy and security.  It also requires covered entities (CEs) to make an individual’s protected health information (PHI) accessible to the individual in all but a few, very limited circumstances.  Recent guidance published by the Department of Health and Human Services (HHS Guidance) emphasizes the need for covered entities to be able to respond to an individual who says “I want my PHI” in a way that complies with HIPAA and state law access requirements, even when these requirements seem confusing and contradictory.

HIPAA authorizations are, perhaps, one of the most commonly misunderstood and misused forms. The HHS Guidance helpfully reminds CEs that authorizations are not needed for a CE to share PHI for treatment, payment and health care operations, and, of course, a CE can share PHI with a business associate under a HIPAA-compliant business associate agreement.  But when an individual requests PHI, whether directly or through a third party, it’s critical that the CE understand whether it is an access request or a request for disclosure pursuant to a HIPAA-compliant authorization.

My law partner and fellow HIPAA enthusiast Beth Larkin comments on some of the difficulties a CE faces when responding to an individual’s access request, highlighting the need to distinguish between an access request and disclosure pursuant to an authorization:

The HHS guidance wants CEs to provide individuals “easy access” to their health information.  CEs still, however, have to deal with other HIPAA requirements, including verification of the identity of the requestor, securing the PHI from unauthorized access and determining breach if there is unauthorized access.  Also, it is not always clear whether a patient is exercising an access right or requesting PHI pursuant to an authorization.  The patient may not know the difference and just indicates he or she wants copies of records and may present either an access request or an authorization form.

The HHS Guidance explains that while a CE can require an individual to submit a written access request, it can’t do so in a manner that creates a barrier or would delay the individual’s access:

For example, a doctor may not require an individual: …  [t]o use a web portal for requesting access, as not all individuals will have ready access to the portal …

If a CE uses a written form for individuals to request access to records (and ensures the form is readily accessible in multiple ways), the CE should give individuals as much information as possible about each form.

For example, as illustrated in the chart included in the HHS Guidance, a HIPAA authorization permits, but does not require, a CE to disclose the PHI.  An access request requires the disclosure (and requires the CE to act on the request within 30 days).  In addition, HHS explains that fees charged by the CE are limited when the individual requests access, and not when PHI is requested pursuant to an authorization (though certain charges might be prohibited under HIPAA regulations proscribing the receipt of remuneration for the disclosure of PHI). Finally, HHS notes that PHI sent pursuant to an authorization must be sent securely, while an individual can request that PHI sent pursuant an access request can be sent through an unsecure medium (though the risks of such a choice should be communicated to the individual if feasible).  If the CE makes all of this information clear and encourages the individual to ask questions as to which form should be used, it seems reasonable for a CE to then be able to rely on the individual’s choice of form.

When a third party requests an individual’s PHI, though, it can be especially difficult for a CE to figure out whether an authorization form has been sent when an access request would have been appropriate. Here, HHS suggests the CE reach out to the individual:

Where it is unclear to a covered entity, based on the form of request sent by a third party, whether the request is an access request initiated by the individual or merely a HIPAA authorization by the individual to disclose PHI to a third party, the entity may clarify with the individual whether the request was a direction from the individual or a request from the third party.

In short, if a HIPAA authorization is really an individual’s misguided attempt to say “I want my PHI!”, the CE will need to make sure it follows the individual access right requirements in responding.

HIPAA has made an unlikely appearance twice already this month in news reports involving famous athletes.

Between the Pierre-Paul medical record tweet by ESPN reporter Adam Schefter earlier this month (discussed by my partner and fellow blogger Bill Maruca here) and the ticker-tape parade featuring confetti made of shredded (but apparently legible) medical information raining down on U.S. Women’s soccer team in New York City (reported by WFMY news here), it seems HIPAA breaches and athletes have had an uncanny affinity for one another this summer, particularly in New York City.

Setting the attenuated coincidence of these events aside, the Pierre-Paul incident provides an opportunity to review when medical information that relates to one’s employment is protected under HIPAA and when it isn’t.

In 2002, the U.S. Department of Health and Human Services (HHS), the agency responsible for enforcing HIPAA, considered a comment to a proposed HIPAA regulation suggesting that “health information related to professional athletes should qualify as an employment record,” and, thus, not be considered protected health information under HIPAA.  HHS was quite clear in responding that a professional athlete has the same HIPAA rights as any other individual:

If this comment is suggesting that the records of professional athletes should be deemed “employment records” even when created or maintained by health care providers and health plan, the Department disagrees.  No class of individuals should be singled out for reduced privacy.

HHS refused to provide a definition of “employment record”, fearing that it might “lead to the misconception that certain types of information are never protected health information, and will put the focus incorrectly on the nature of the information rather than the reasons for which” the information was obtained.

HHS went on to explain how and when protected health information might become “employment record” information:

For example, drug screening test results will be protected health information when the provider administers the test to the employee, but will not be protected health information when, pursuant to the employee’s authorization, the test results are provided to the … employer and placed in the employee’s employment record.

HHS further clarified that:

… medical information needed for an employer to carry out its obligations under FMLA, ADA, and similar laws, as well as files or records related to occupational injury, disability insurance eligibility, sick leave requests and justifications, drug screening results, workplace medical surveillance, and fitness-for-duty tests of employees, may be part of the employment records maintained by … an employer.

Going back to Pierre-Paul, the mere fact that his injury could affect his ability to perform as a professional athlete did not automatically turn the protected health information related to the injury (the medical record created by the hospital) into “employment records” exempt from HIPAA protection.  It isn’t unless and until protected health information is disclosed to the employer pursuant to the individual’s authorization that it becomes an “employment record” no longer subject to HIPAA.  Even if an individual’s disclosure of medical records is a condition of employment (apparently not the case in Pierre-Paul’s situation), it is the individual’s authorization that allows its disclosure, not the category or class of the individual.