HHS Publishes Guidance on Patient Access to Records under HIPAA

Key takeaway

On January 7, 2016 the Department of Health and Human Services (“HHS”) released a fact sheet and a series of frequently asked questions to help to clarify an individual’s right to access and obtain a copy of his or her health information under HIPAA. In its announcement, HHS notes that individuals face obstacles in assessing their health information and that “this must change.” The FAQs address a number of topics including the information covered under the access right, the form in which information is to be provided, the limited exceptions to the individual’s right, the timing requirements for the provision of access, and the interplay between the access rights of HIPAA and the requirements for patient access under the HITECH Act’s EHR Incentive Program. The publication provides a summary of general issues related to access and includes a number of FAQs addressing particular questions, facts, and circumstances. It is important for physical therapists and all health care providers to review this document so that they can be better aware of HHS’ position on the right to access and make any necessary revisions to current policies and procedures. As noted above, HHS has chosen to develop FAQs on this issue based upon previous noncompliance by health care providers. Given the publication of these FAQs and past enforcement actions, a reasonable conclusion can be drawn that HHS may be less tolerant of noncompliance in this area should this issue arise during an audit or investigation.

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Paul J. Welk

Paul is chair of Tucker Arensberg Attorneys Health Law/Health Information Technology Industry Group and focuses his practice on corporate and healthcare law. In this capacity, he represents physical therapists, physicians, dentists, not-for-profit organizations, professional organizations and other business corporations and entities. Some of the recent transactions and clients he has worked on include the representation of: Multiple state physical therapy professional associations on a variety of issues Multiple physical therapy private practices with development and implementation of ownership succession plans A venture capital company with the $13 million dollar stock acquisition of a target company Multiple physical therapy providers in successful third party payer appeals Multiple buyers of the assets and associated real estate of dental practices Multiple physical therapy providers regarding the transfer of partial ownership interests and the negotiation of governance and shareholder documents Multiple physical therapy providers with asset and stock acquisitions and divestitures A manufacturing company with the successful negotiation of a shareholder dispute and stock purchase A service provider with negotiation of a $5 million annual service contract A publicly traded company regarding the merger of two wholly owned subsidiaries Two publicly traded companies regarding the ongoing review of distribution, supply and service contracts A seller of a skilled nursing facility and related real estate Multiple regional rehabilitation provider networks on a variety of issues, including formation and ongoing operations A large physician practice in its sale to a health system Areas of Practice: Business and corporate law, health law, mergers and acquisitions Articles and Presentations: Paul regularly lectures and writes on topics related to business and healthcare law and is the founding author of Legal Impact, a regular column in the American Physical Therapy Association Private Practice Section’s Impact Magazine. Memberships and Activities: Paul is a member of the American and Pennsylvania Physical Therapy Associations and past Chair of the American Physical Therapy Association Committee on Risk Management and Member Benefits. He is also a member of the Bloomsburg Medical Supply Ethics Committee, the Duquesne University School of Physical Therapy Advisory Board, the Pennsylvania Bar Association, and the American Health Lawyers Association. He is an adjunct instructor at the St. Francis University School of Physical Therapy and a licensed physical therapist in the Commonwealth of Pennsylvania. Jurisdictions: Paul is licensed to practice law in Pennsylvania. Education and Background: Paul received his Bachelor of Science and Master of Physical Therapy degrees with honors from Duquesne University and his law degree with honors from the University of Pittsburgh. He served as associate editor of the University Of Pittsburgh School Of Law Journal of Law and Commerce and received the CALI Excellence for the Future and Esther F. Teplitz Awards for academic performance in the health law curriculum. Paul is a graduate of the University Of Pittsburgh School Of Law’s Health Law Certificate Program.