On November 6, 2020 the Office for Civil Rights issued a press release announcing the settlement of its Tenth investigation under the Right to Access Initiative. I have written about this initiative before in this blog but in light of the fact it seems like there is a new press release on the subject every couple of days, it seems like the topic continues to be relevant and important.
The November 6th settlement is with a practice group called RPMG out of Riverside California. The basis of the investigation is RPMG’s refusal to provide medical records to an individual because those records contained psychotherapy notes. HIPAA does not require the production of psychotherapy notes in certain circumstances, but the rules do set forth very specific steps that must be taken when the notes are not provided. A written explanation of the reason for the denial must be provided, and all medical records, other than psychotherapy notes must be provided to the individual. A provider can’t simply reject a request for copies of records just because the records contain psychotherapy notes, which is what RPMG did.
Initially the OCR provided RPMG with technical assistance, which means the OCR educated RPMG on their obligation to provide records, and then closed the matter. RPMG still did not provide the records so a second complaint was filed with the OCR. This time, the OCR wasn’t so nice. RPMG agreed to pay $25,000 and enter into a settlement agreement that contained a corrective action plan that included two years of monitoring which will cost much more than the $25,000 RPMG paid to settle the matter. Just having a HIPAA compliant Right to Access program in place would have been much less expensive for RPMG.
Once again, each provider is encouraged to review their process for responding to requests for copies of medical records to ensure that process complies with the requirements of HIPAA. Clearly the OCR is not backing away from the Right To Access Initiative. This is a situation where an ounce of prevention is truly worth a pound of cure.
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