Right of Access Violations Lead to Class Action

In recent weeks, we have been telling you about Office of Civil Rights (OCR) settlements relating to alleged violations of HIPAA’s Right of Access Initiative. The most recent settlements were announced on November 6 and November 12, bringing to 11, the number of settlements reached.

OCR launched its Right of Access Initiative last year in an effort to “put patients in the driver’s seat,” by requiring healthcare providers to make it easier and less expensive for patients to obtain their medical records in a timely manner.

In each instance, providers agreed to pay anywhere from a few thousand dollars to hundreds of thousands of dollars to settle the allegations and to take corrective actions so there are no violations in the future.

In the wake of these government settlements, comes word of a class action lawsuit filed in New York against Healthalliance Hospital Broadway Campus and its medical records company, Ciox Health, LLC, alleging that the facility failed to provide medical records in a prompt manner and without being overcharged.

The lawsuit was filed on behalf of a woman whose husband died after being treated for lung cancer. The plaintiff was attempting to gain access to her husband’s records for a potential malpractice lawsuit that alleged there had been a delay in the diagnosis and treatment of her husband’s lung cancer. The plaintiff alleged that between April 2020 and September 2020, she attempted and failed to obtain those records.

Federal law requires healthcare providers comply with the request within 30 days. New York Public Health Law requires compliance within 10 days.

The suit alleges that the hospital attempted to assign responsibility for responding to the records request to Ciox Health, which refused to comply. Under the HITECH Act of 2009, patients can obtain access to their medical records in electronic form for the customary fee of $6.50. However, according to the lawsuit, Ciox insisted upon payment of photocopy fees at a cost of 75 cents per page for electronic copies, not paper copies.

The lawsuit requests class certification noting that “hundreds, if not thousands of individuals were overcharged for the retrieval and copying of their electronic medical records.” The law provides penalties of $50,000 per violation and up to $1.5 million in fines per calendar year.

It’s become clear that the government is serious about ensuring that patients have access to their records through these settlement agreements. Because this class action case is relatively new, it’s unclear what the outcome will be. However, given the penalties that providers face, violations of HIPAA’s Right of Access Initiative should be taken seriously.

In light of not only the stepped up enforcement actions, but also the prospect of civil litigation, providers should review their policies and practices to ensure that they respond to patient requests for access to medical records in compliance with HIPAA rules. Our attorneys are well qualified to assist you in this matter. Contact us for additional information at 305-358-4500 or send us an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.

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The Health Law Offices of Anthony C. Vitale