This post was also written by Marquan Robertson, a Reed Smith summer associate.
In 2019, the Department of Health and Human Services Office of Civil Rights (OCR) announced its Right of Access Initiative. The Right of Access Initiative realizes OCR’s commitment to ensuring the aggressive enforcement of patients’ rights to receive copies of their medical records. Enforcement of the initiative applies to all organizations required to comply with HIPAA standards.
HIPAA regulations stipulate that “an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set, except for: (i) psychotherapy notes; and (ii) information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.”
Staying true to the spirit of its Right of Access Initiative, OCR recently settled its nineteenth investigation with the Diabetes, Endocrinology & Lipidology Center, Inc. (DELC). DELC is a health care provider for endocrine disorders in West Virginia. OCR’s investigation stemmed from an August 2019 complaint in which a mother alleged that DELC failed to deliver medical records for her minor child in a timely manner. Despite the complaint coming just a month after failed delivery of the requested medical records, copies were not provided to the mother until May 2021—almost two years after the initial request. DELC signed a resolution agreement following OCR’s investigation, agreeing to pay $5,000 and to undertake a corrective action plan featuring two years of continuous monitoring.
We have previously reported on OCR’s vigorous enforcement of its Right of Access Initiative, trending toward increased patient rights. These previously published articles are available here and here. The articles highlight multiple OCR settlements and OCR’s recent push for interoperability among health care providers. Moreover, the Office of the National Coordinator for Health Information Technology and Centers for Medicare & Medicaid Services, in conjunction with the Department of Health and Human Services Office of the Inspector General, have led the way for increased monitoring and compliance standards through various rule proposals. These proposals call for the implementation of technology that promotes electronic access, exchange, and the use of health information to move the national health care system toward greater interoperability.
Patient rights and accessibility are at the forefront of OCR’s mind. “Covered entities owe it to their patients to provide timely access to medical records,” said Acting OCR Director Robinsue Frohboese in announcing the DELC settlement. OCR takes patient complaints seriously and has demonstrated that stiff fines will follow for HIPAA-regulated entities that fail to take expeditious action on requests from patients for access to their information.
We will continue to monitor enforcement patterns, trends, and other developments by the OCR’s Right of Access Initiative. Should you have any questions related to the Right of Access Initiative or OCR enforcement, please do not hesitate to reach out to the health care attorneys at Reed Smith.