HIPAA and Patient Access of Information - New Rules and Guidelines

HIPAA and Patient Access of Information
Primary Enforcement Focus for HHS
Jim Sheldon-Dean
Director of Compliance Services
Lewis Creek Systems, LLC
www.lewiscreeksystems.com
© Copyright 2022 Lewis Creek Systems, LLC All Rights Reserved
jim@lewiscreeksystems.com www.lewiscreeksystems.com

Agenda
• Present Patient Rights for Access of PHI under HIPAA
• Review Guidance and New Proposed Changes to Access Rights
• Discuss how to handle patient access and communications of
Protected Health Information, including E-mail and Texting
• Identify guidance from HHS for business associates, patient
access and communications, and recent court decisions
• Discuss rights for access of laboratory information and
electronic copies of electronic records
• Identify HIPAA policies that may need to be changed
• Look at COVID-19 impacts and special considerations
• Learn about being prepared for enforcement and auditing
• Learn how to approach compliance
• Q&A session

HIPAA Privacy, Security, & Breach Rules
• Privacy Rule
– 45 CFR §164.5xx; Enforceable since 2003
– Establishes Rights of Individuals
– Controls on Uses and Disclosures
– Access of PHI is THE hot button issue for HHS
• Security Rule
– 45 CFR §164.3xx; Enforceable since 2005
– Applies to all electronic PHI
– Flexible, customizable approach to health information security
– Uses Risk Analysis to identify and plan the mitigation of security risks
• Breach Notification Rule
– 45 CFR §164.4xx; Enforceable since February 2010
– Requires reporting of all PHI breaches to HHS and individuals
– Extensive/expensive obligations
– Provides examples of what not to do on the HHS “Wall of Shame”:
https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf

Rules Have Been Stable
• Last major update in 2013, result of HITECH Act
• NEW Proposed Update to Privacy Rule; many small changes to
improve access and ease information sharing and coordination of care
– Shorter (by half!) timeline to respond to access requests
– Proposed change to Requirement to Obtain an Acknowledgement
of the Receipt of a Notice of Privacy Practices
– Still no update to Accounting of Disclosures, as required by
HITECH
• May be a change to rules under TCPA (re: calling or messaging cell
phones)
• Guidance on HIPAA compliance liability of Business Associates
• Information Blocking rules intersect HIPAA, being enforced
• Inadequate coverage for new technologies and patient information

Proposed Changes Codify Guidance
• Individual Access is THE major Privacy Rule
issue today
• 2016 Guidance has not led to compliance
• Enforcement considers the Guidance
• Putting the Guidance into the Rules
• Tightening up time lines
• Clarifying requirements

HIPAA Right of Access
➢ §164.524(a) Standard: Access to protected health
information
➢(1) Right of Access. Individual has right to access, inspect,
and copy of PHI in the Designated Record Set, except for:
➢(i) Psychotherapy Notes
➢(ii) Information compiled in reasonable anticipation of, or for
use in, a civil, criminal, or administrative action or
proceeding
➢(iii) Section Removed in 2013 – CLIA exemption removed:
Now individuals may access test results directly from
laboratories

Communication with Family &
Friends of Patients
• Privacy Rule § 164.502(g) and 164.510(b)
• The Privacy Rule allows a health care provider or health plan to
share information with a patient’s family or friends if:
– They are involved in the patient’s health care or payment for health
care,
– The patient tells the provider or plan that it can do so,
– The patient does not object to sharing of the information, or
– If, using its professional judgment, a provider or plan believes that the
patient does not object
• The Privacy Rule does not require a health care provider or health
plan to share information with a patient’s family or friends, unless
they are personal representatives of the patient
• https://www.hhs.gov/hipaa/for-individuals/family-members-friends/index.html
• https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/personal-
representatives/

What is a HIPAA Breach?
• §164.402 Breach is any acquisition, access, use, or disclosure in
violation of the Privacy Rule, except if:
– Unintentional internal use, in good faith, with no further use
– Inadvertent internal use, within job scope
– Information cannot be retained (returned intact, unopened,
unviewed)
• Not Reportable if:
– Secured (encrypted) per HHS guidance, or destroyed
• Otherwise: Reportable unless there is a “low probability of
compromise” based on a risk assessment, examining at least:
1. what was the info, how well identified was it, and is its release
“adverse to the individual”
2. to whom it was disclosed
3. was it actually acquired or viewed
4. the extent of mitigation

Telemedicine and HIPAA
• Using HIPAA-compliant fully encrypted services under a HIPAA
Business Associate Agreement is fully compliant for
telemedicine use
– Skype for Business, Updox, VSee, Zoom for Healthcare, Doxy.me,
and Google G Suite Hangouts Meet
• Can follow the usual processes for Risk Analysis and secure
implementation, including a HIPAA BAA
• HIPAA has allowances for emergencies and life threatening
situations
• Patients and providers LOVE Telemedicine! It will be with us
after the emergency

Telemedicine, HIPAA and COVID-19
• HHS has issued an enforcement advisory on telemedicine during
the COVID-19 emergency: Relaxed enforcement for using services
that are non-public facing but may not meet HIPAA requirements
(such as a providing a BAA)
– Apple FaceTime, Facebook Messenger video chat, Google Hangouts video,
or Skype
• BUT: Do NOT use public-facing services that are not private
– Facebook Live, Twitch, TikTok, and similar
• And: Once the emergency is over you will need to use HIPAA
compliant services, under a Business Associate Agreement,
according to a HIPAA Security Risk Analysis
• See: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-
preparedness/notification-enforcement-discretion-telehealth/index.html

New Technologies
• New technologies in health care every day
– Some new technologies will be very useful
– Some new technologies will be a privacy and security
nightmare
• You can’t deny new technologies
– New Technologies should be addressed head-on
– If you ignore them they don’t go away
– Encourage dialog on new technologies and find ways to
use them productively, securely
• Education addressing new technologies is essential
– Prevent improper uses
– Train in appropriate usage

New Technologies and HIPAA
• HIPAA can handle new technologies for PHI
– Security Rule is very flexible, adaptable
• New kinds of information, apps, devices, and various uses outside
the formal HIPAA definition of “Protected Health Information”
• With medical devices, consumer-driven data collection and
transmission would be under FTC rules, not HIPAA, but with the
same device, if prescribed by a provider, the same data are PHI
protected under HIPAA
• Proposed HIPAA Privacy Rule changes would address many issues
more clearly
• Don’t be surprised if new laws and regulations result
– State laws may also be in the works
– Expansion of existing state breach rules

Your to-do list…
✓ Don’t be in denial – willful neglect costs more than compliance
✓ Accommodate individual rights of access and choices
✓ Review and update your communications policies and procedures
per the rules, and to allow for Emergency considerations
✓ Be ready for the end of the Emergency and compliance
requirements
✓ Establish your processes for Risk Analysis and Documentation
✓ Train staff in new policies and procedures
✓ Document, document, document!
✓ Conduct drills in audit and breach response
✓ Make corrections based on results
✓ Always have a plan for moving forward, and follow it!

Thank you!
Any Questions?
For additional information, please contact:
Jim Sheldon-Dean
Lewis Creek Systems, LLC
5675 Spear Street, Charlotte, VT 05445
jim@lewiscreeksystems.com
www.lewiscreeksystems.com
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