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Earlier this year, the Department of Health and Human Services’ Office for Civil Rights (OCR) announced that one of the main areas of HIPAA enforcement in 2019 would be HIPAA right of access failures, including untimely responses to access requests and overcharging for copies of medical records.
The HIPAA right of access allows patients to obtain copies of their medical records on request. HIPAA-covered entities are required to honor those requests and provide patients with access to PHI or copies of health data contained in a ‘designated record set’ within 30 days of the request being received. A covered entity is permitted to charge a reasonable, cost-based fee for providing a copy of the individual’s PHI, which can include the cost of certain labor, supplies and postage.
HIPAA-covered entities that fail to provide copies of records in a reasonable time frame or charge excessive amounts for providing a copy of a patient’s PHI are in violation of the HIPAA Privacy Rule – See 45 CFR 164.501. Such violations can attract a sizable financial penalty.
This week, OCR has announced that the first settlement has been reached with a HIPAA-covered entity under the new right of access initiative. Bayfront Health St. Petersburg, a 480-bed hospital in St. Petersburg, FL, has agreed to pay OCR $85,000 to settle the case.
OCR launched an investigation into a potential HIPAA violation at Bayfront Health following receipt of a complaint from a patient on August 14, 2018. The patient alleged that she had requested her fetal heart monitor records from Bayfront Health St. Petersburg in October 2017. At the time of the complaint, 9 months after the request was made, she had still not been provided with a full copy of her records.
OCR confirmed that the patient made the request on October 18, 2017 and was informed by Bayfront Health that the records could not be found. Two further requests were sent to Bayfront Health by the patient’s counsel on January 2, 2018 and February 12, 2018. In March 2018, Bayfront Health provided an incomplete set of records and a complete response was only received on August 23, 2018. The patient’s counsel shared the records with the patient, but it took the intervention of OCR for the fetal heart monitor records to be provided to the patient. Those records were provided directly to the patient on February 7, 2019.
OCR determined that the failure to provide access to the patient’s designated record set was a clear violation of 45 C.F.R. § 164.524 and that the HIPAA violation warranted a sizable financial penalty.
“Providing patients with their health information not only lowers costs and leads to better health outcomes, it’s the law,” said OCR Director Roger Severino. “We aim to hold the health care industry accountable for ignoring peoples’ rights to access their medical records and those of their kids.”
In addition to the financial penalty, Bayfront Health has agreed to implement a corrective action plan and will be monitored by OCR for the following 12 months.
The latest enforcement action – OCR’s third of the year – is the first action against a HIPAA-covered entity for a violation of the HIPAA right of access under the new initiative, but it is not the first time that OCR has issued a financial penalty for such a violation. In 2011, Cignet Health of Prince George’s County was issued with a civil monetary penalty of $4,300,000 for denying patients access to their medical records.