OCR Sanction for Failing to Provide Patient Access to Protected Health Information
OCR Settlements Illustrate Area of HIPAA Risk
In this case that was settled with the Office of Civil rights, the provider was a mental health center that was accused of refusing to provide a patient with a copy of her medical record, including psychotherapy notes. OCR’s investigation revealed that the Center provided the complainant with an opportunity to review her medical record, including the psychotherapy notes, with her therapist. However, the provider failed to provide the patient with a copy of her records. The Privacy Rule requires covered entities to provide individuals with access to their medical records; however, the Privacy Rule exempts psychotherapy notes from this requirement if they are separately maintained by the covered entity. Although the Center gave the complainant the opportunity to review her medical record, this did not negate the Center’s obligation to provide the complainant with a copy of her records. Among other corrective action taken, the Center provided the complainant with a copy of her medical record and revised its policies and procedures to ensure that it provides timely access to all individuals.
The regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which protect the privacy and security of individuals’ identifiable health information and establish an array of individual rights with respect to health information, have always recognized the importance of providing individuals with the ability to access and obtain a copy of their health information. With limited exceptions, the HIPAA Privacy Rule (the Privacy Rule) provides individuals with a legal, enforceable right to see and receive copies upon request of the information in their medical and other health records maintained by their health care providers and health plans. Thus, individuals have a right to a broad array of health information about themselves maintained by or for covered entities, including: medical records; billing and payment records; insurance information; clinical laboratory test results; medical images, such as X-rays; wellness and disease management program files; and clinical case notes; among other information used to make decisions about individuals. In responding to a request for access, a covered entity is not, however, required to create new information, such as explanatory materials or analyses, that does not already exist in the designated record set.
An individual does not have a right to access PHI that is not part of a designated record set because the information is not used to make decisions about individuals. This may include certain quality assessment or improvement records, patient safety activity records, or business planning, development, and management records that are used for business decisions more generally rather than to make decisions about individuals.
In addition, two categories of information are expressly excluded from the right of access:
- Psychotherapy notes, which are the personal notes of a mental health care provider documenting or analyzing the contents of a counseling session, that are maintained separate from the rest of the patient’s medical record. See 45 CFR 164.524(a)(1)(i) and 164.501.
- Information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding. See 45 CFR 164.524(a)(1)(ii).
Source: Health Law Blog