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.”
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.
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.
Allergy Associates of Hartford has agreed to pay $125,000 to the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) for an alleged violation of HIPAA. The incident occurred in February 2015. A patient reached out to a local TV station about a dispute with a doctor at Allergy Associates. When the reporter contacted the doctor for comment, the doctor improperly disclosed the patient’s PHI. After Allergy Associates learned that HHS was investigating this incident, no disciplinary action was taken against the doctor. According to the Resolution Agreement:
(1) Allergy Associates impermissibly disclosed the Complainant’s PHI to an unauthorized third party. See 45 C.F.R. § 164.502(a).
(2) Allergy Associates failed to apply appropriate sanctions against its Workforce Member who failed to comply with the entity’s privacy policies and procedures and the Privacy Rule. See 45 C.F.R. §164.530(e)(l).
According to the HHS press release:
“When a patient complains about a medical practice, doctors cannot respond by disclosing private patient information to the media,” said OCR Director Roger Severino. “Because egregious disclosures can lead to substantial penalties, covered entities need to pay close attention to HIPAA’s privacy rules, especially when responding to press inquiries.”
The press release can be viewed here. The Notice of Proposed Determination can be viewed here. The Resolution Agreement can be viewed here.
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.