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October 20, 2020

Medical Practice Pays $100,000 for Failure to Grant Timely Patient Access to Medical Records

On October 9, 2020, the Office for Civil Rights of the US Department of Health and Human Services underscored the importance of providing patients timely access to their medical records in its settlement of an enforcement action against NY Spine Medicine, a New York-based medical practice specializing in neurology and pain management with offices in New York City and Miami Beach, Florida. This was the ninth settlement arising out of OCR’s 2019 HIPAA Right of Access Initiative, which is aimed at vigorously enforcing the rights of patients to receive copies of their medical records promptly and without being overcharged. The HIPAA rules generally require covered health care providers to supply medical records within 30 days of a request. The right of access under New York law is even more stringent: Public Health Law §18 requires that within 10 days of a written request, the provider must give a qualified person the opportunity to inspect the requested records and must provide copies upon request.

In July 2019, OCR received a complaint from an individual alleging she made multiple requests to NY Spine for her medical records, including x-rays, MRIs, and CT images. NY Spine sent some records but did not provide the diagnostic imaging records.

OCR initiated an investigation into NY Spine’s failure to provide timely access to the records. It sent two requests to NY Spine, in October 2019 and January 2020, requesting a response within 14 days. After no response was received, OCR left several voicemail messages at the New York and Miami Beach offices. A return call was received in March 2020. Finally, in October 2020—16 months after her original request—the patient received all the medical records she had asked for.

As part of the settlement, NY Spine paid $100,000 and entered into a corrective action plan (CAP) with HHS, which includes updating, distributing, and training its workforce on new policies and procedures to assure the right of access along with required reporting of instances of non-compliance. NY Spine must also submit ongoing reports to HHS and is subject to monitoring for a period of two years. The CAP also provides for future penalties in the event NY Spine breaches its obligations under the plan.

Stating no one should have to wait over a year to get copies of their medical records, the OCR director, Roger Severino, promised OCR will continue stepped up enforcement of the right of access “until covered entities get the message.” All health care providers, large and small, need to be aware that affording patients timely access to their medical records is now a focus of HHS enforcement, and a failure to comply could result in hefty fines. Covered entities must review their policies and practices to ensure their compliance with HIPAA and New York State rules of access. Moreover, employees must be regularly trained on right-of-access policies and procedures in order to ensure patients and former patients are provided access to their records within regulatory timeframes.

If you have any questions regarding the content of this alert, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com, or another member of the firm’s Health Care & Human Services Providers Team.

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