New Jersey Nursing Facility to Pay $100,000 CMP to Resolve HIPAA Right of Access Violation
The HHS’ Office for Civil Rights has announced another financial penalty has been imposed for a violation of the HIPAA Right of Access. Essex Residential Care, LLC, which does business as Hackensack Meridian Health, West Caldwell Care Center in New Jersey, has been ordered to pay a civil monetary penalty of $100,000 to resolve the alleged violation.
Hackensack Meridian Health operates skilled nursing facilities in New Jersey, including the West Caldwell Care Center. In May 2020, OCR received a complaint from the son of a mother who had received care at West Caldwell Care Center who alleged he had not been provided with a copy of her medical records within the 30 days allowed by the HIPAA Privacy Rule.
Son Not Provided with His Mother’s Records within 30 Days
The complainant was the personal representative of his mother and therefore should have been provided with a copy of his mother’s medical records. The complainant first asked for a copy of the records on April 19, 2020, via email, and on April 23, 2020, an administrator at West Caldwell Care Center advised him that the records could not be provided without a copy of a power of attorney, medical proxy or similar document executed by the mother, confirming that he was her personal representative.
The appropriate documentation was provided but West Caldwell Care Center still did not provide the requested records, which led to him filing a complaint with OCR. On October 15, 2020, OCR notified West Caldwell Care Center that an investigation had been opened as a result of the complaint and the correspondence included a data request pursuant to the investigation.
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West Caldwell Care Center responded and acknowledged that the records had not been provided within the allowed 30 days and, in response to OCR’s investigation, sent the requested records in late November, which were received by the complainant on December 1, 2020, 161 days after the initial request was made.
West Caldwell Care Center Disagreed with OCR’s Determination
Most HIPAA Right of Access investigations are informally settled with OCR, a financial penalty is paid, and the covered entity agrees to adopt a corrective action plan which includes updates to its policies and procedures and training on HIPAA policies for staff members. In this case, West Caldwell Care Center’s attorney disagreed with OCR’s proposed resolution of the investigation. OCR then notified West Caldwell Care Center that the investigation had uncovered preliminary indications of non-compliance with the HIPAA Right of Access, and OCR provided West Caldwell Care Center with the opportunity to submit evidence of mitigating factors.
West Caldwell Care Center acknowledged that the complainant was not provided with the requested records, but the records were provided to another facility to which his mother had been transferred. West Caldwell Care Center also said that at the time of the initial request, there was ongoing litigation due to the non-payment of care costs. As another mitigating factor, West Caldwell Care Center said it was dealing with the COVID-19 pandemic, and that the complainant filed a complaint with OCR exactly 30 days after the request was made before West Caldwell Care Center’s response to the initial request was due. West Caldwell Care Center accepted that the matter should have been handled differently.
$100,000 Civil Monetary Penalty Imposed
OCR determined that West Caldwell Care Center failed to provide the requested records within the 30 days allowed by the HIPAA Privacy Rule and that the delay from June 23, 2020, to December 1, 2020, was a violation of the HIPAA Right of Access. The maximum civil monetary penalty was $206,080 based on the reasonable cause penalty tier (see: What are the penalties for HIPAA violations); however, per OCR’s reinterpretation of the language of the HITECH Act and its subsequent Notice of Enforcement Discretion, the penalty was capped at $100,000.
West Caldwell Care Center argued that a civil monetary penalty was not permitted because the violation was not due to wilful neglect and was timely corrected and that imposing a civil monetary penalty would be arbitrary and capricious and would violate the Administrative Procedure Act (APA). OCR disagreed that the violation was timely corrected and said the affirmative defense requirements were not met, and that the penalty was appropriate and reasonable given that the violation did not violate the APA and that the civil penalty amount was reasonable given the substantial delay providing the requested records.
West Caldwell Care Center said its staff believed they had responded in the allowed time frame by transferring the records to another facility; however, OCR’s view was that the records were not provided to the personal representative as required by HIPAA. West Caldwell Care Center was advised of its right to request a hearing with an administrative law judge; but on advice from its legal counsel, chose to waive that right.
“A patient’s timely access to health records is paramount for medical care. The Office for Civil Rights continues to receive complaints from individuals and personal representatives on behalf of individuals who do not receive timely access to their health records,” commented OCR Director Melanie Fontes Rainer. “OCR will continue to vigorously enforce this essential right to ensure compliance by health care facilities across the country.”
This is the fourth financial penalty imposed by OCR in 2024 to resolve alleged HIPAA violations and its 145th financial penalty to date. OCR has now fined 48 HIPAA-regulated entities for failing to provide patients or their personal representatives with timely access to the requested medical records that they are legally entitled to obtain.
