All posts in Health Privacy

The Persistent Problems with Access to Records Under HIPAA

Daniel Solove
Founder of TeachPrivacy

HIPAA Access to Medical Records

A study released last month in Jama Open Network entitled Assessment of US Hospital Compliance With Regulations for Patients’ Requests for Medical Records demonstrates that compliance with HIPAA’s right to access medical records remains woeful.  In the second half of 2017, researchers contacted 83 US hospitals and conducted a simulated patient experience to ask for medical records. Among the hospitals, the researchers found that “there was discordance between information provided on authorization forms and that obtained from the simulated patient telephone calls in terms of requestable information, formats of release, and costs.”  On forms, “only 53% provided patients the option to acquire the entire medical record.”  The study concluded that “Requesting medical records remains a complicated and burdensome process for patients despite policy efforts and regulation to make medical records more readily available to patients. Our results revealed inconsistencies in information provided by medical records authorization forms and by medical records departments in select US hospitals, as well as potentially unaffordable costs and processing times that were not compliant with federal regulations.”

I addressed this topic in a blog post about 2 years ago. At that time, I said:

HIPAA doesn’t handle patient access to medical records very well. There are many misunderstandings about patient access under HIPAA that make it quite difficult for patients to obtain their medical information quickly and conveniently. Getting records is currently like a scavenger hunt. Patients have to call and call again, wait seemingly forever to get records, and receive them via ancient means like mail and fax. I often scratch my head at why fax is still used today — it’s one step more advanced than carrier pigeon.  Many covered entities do not send records by email, and getting electronic copies can be quite difficult. Many healthcare providers still maintain paper records in handwriting, and healthcare lags far behind most other industries in the extent to which it has moved to digital records.

Sadly, as this study confirms, little has changed.

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Yes, HIPAA Requires Medical Records to Be Emailed to Patients if Requested

Daniel Solove
Founder of TeachPrivacy

Email Medical Records

Have you ever asked your healthcare provider to send you medical records by email?  Most likely, you’ve received the reply: “We can’t do that.  We can only fax them to you or provide you with a paper copy.”  This answer is wrong.

HIPAA’s right for individuals to access their health information, 45 CFR § 164.524, provides:

The covered entity must provide the individual with access to the protected health information in the form and format requested by the individual, if it is readily producible in such form and format; or, if not, in a readable hard copy form or such other form and format as agreed to by the covered entity and the individual.

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HIPAA Cartoon: Notice of Privacy Practices

Daniel Solove
Founder of TeachPrivacy

Cartoon HIPAA Notice - TeachPrivacy HIPAA Training 02 medium

This HIPAA cartoon involves the notice of privacy practices (NPP) under HIPAA.  HIPAA has a set of detailed requirements for the NPP.  See 45 CFR 164.520 for the text of HIPAA’s requirement for NPPs.

The biggest challenge regarding privacy notices is that hardly anyone actually reads the notice, and notices are often a chore to read.

There is a Hobson’s choice when it comes to such notices, whether under HIPAA or otherwise.  As I wrote in Privacy Self-Management and the Consent Dilemma, 126 Harvard Law Review 1880 (2013): “[M]aking [notices] simple and easy to understand conflicts with fully informing people about the consequences of giving up data, which are quite complex if explained in sufficient detail to be meaningful.  People need a deeper understanding and background to make informed choices.”  Sadly, there’s no easy way to win on this one.

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Cartoon: HIPAA Protected Health Information

Daniel Solove
Founder of TeachPrivacy

Cartoon HIPAA PHI - TeachPrivacy HIPAA Training 02

Here’s a new HIPAA cartoon. This cartoon is about protected health information (PHI).  In the HIPAA regulations, the definition of PHI is quite complicated, as it is splintered into at least three separate parts that appear in HIPAA’s definitions section.  Pursuant to HIPAA, 45 CFR 160.103:

Health information means any information, including genetic information, whether oral or recorded in any form or medium, that:
(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.

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HIPAA Whiteboard and HIPAA Interactive Whiteboard

Daniel Solove
Founder of TeachPrivacy

HIPAA Whiteboard

Recently, I created two new HIPAA training resources.

HIPAA Whiteboard

I created a 1-page visual summary of HIPAA, which I call the HIPAA WhiteboardThe idea was to summarize HIPAA in a concise and visually-engaging way.  You can download a PDF handout version here.  We’ve been licensing it to many organizations for training and awareness purposes.

HIPAA Whiteboard - TeachPrivacy HIPAA Training

HIPAA Interactive Whiteboard

I subsequently created a new training module — an interactive version of the HIPAA Whiteboard — the HIPAA Interactive Whiteboard When people click on each topic, the program provides brief narrated background information, presented in a very understandable and memorable way.  Trainees can learn at their own pace.  This program is designed to be very short — it is about 5 minutes long.

It can readily be used on internal websites to raise awareness and teach basic information about HIPAA.  It can also be used in learning management systems.

HIPAA Whiteboard Interactive - TeachPrivacy HIPAA Training

HIPAA Whiteboard Interactive - TeachPrivacy HIPAA Training

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HIPAA Enforcement 2017: Another Big Year for HIPAA Enforcement

Daniel Solove
Founder of TeachPrivacy

HIPAA Enforcement

At the end of 2017, the OCR logged just under $20 million in fines for HIPAA violations from 10 enforcement actions with monetary penalties.  In 2016, the total in penalties was roughly the same amount but from 15 organizations.

Here is an overview of the resolution agreements and enforcement actions with civil monetary penalties from 2017:

HIPAA Enforcement Chart

Lessons from 2017

Devices, devices, devices . . .

Quite a number of cases involved failure to implement safeguards for PHI on mobile devices.  The best fix is to superglue devices to staff.  Short of doing that, organizations should recognize that mobile devices frequently get lost or stolen, so there should be heightened security controls when PHI is accessible on these devices.

Act quickly.

Several cases involved failing to provide timely notice or to act promptly after problems were discovered.  In politics, it’s often not the scandal, but the coverup that fells politicians.  In the world of HIPAA, it’s often not the incident, but the response that leads to organizations being penalized.

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Privacy and Security in Health Tech: Improving Transparency About Practices

Daniel Solove
Founder of TeachPrivacy

Many app developers overlook privacy and security by failing to do one of the most basic first steps of data protection – informing consumers of their practices. For example, in a study published in 2016 in the Journal of the American Medical Association, 80% of diabetes apps surveyed didn’t have a notice informing consumers about privacy practices.  Another recent study of thousands of apps involving all topics revealed that nearly 50% lacked a privacy notice. A study by the Future of Privacy Forum in 2016 revealed that “only 70% of top health and fitness apps had a privacy policy.”

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HIPAA Cartoon on Snooping

Daniel Solove
Founder of TeachPrivacy

This cartoon is about snooping, one of the most common HIPAA violations.  HIPAA prohibits accessing information that people don’t need to do their jobs.   It can be easy to look at electronic medical records, and people who snoop in this way might not perceive it as wrong.  But the cartoon invites people to imagine how creepy the snooping would appear if it were occurring right in front of patients.  Computers remove the interpersonal dynamic, making it harder for people to fully appreciate the wrongfulness of their conduct.

Though the high-profile, celebrity snooping incidents garner all the media attention, smaller cases affecting everyday individuals make up the bulk of the cases and legal activity.  A large number of inappropriate access claims involve people checking on protected health information (PHI) about family and friends.  Snooping is not intended maliciously.  Often a concerned staff member will access the patient records of a family member or acquaintance out of worry or concern.  In one case, a nurse in New York was fired for disclosing a patient’s medical history to warn a family member who was romantically involved with the patient of the patient’s STD.

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HIPAA’s Failure to Provide Enough Patient Control Over Medical Records

Daniel Solove
Founder of TeachPrivacy

HIPAA Privacy Rule

 

A Not-So-Far-Fetched Seinfeld Episode

In a Seinfeld episode called “The Package” from 1996 (click here to see the scene), airing just months after HIPAA was passed,  Elaine goes to see a doctor for a rash.

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