An e-mail message from the Department of Health and Human Services (HHS) Civil Rights Division listserver:
On January 25, 2013, HHS published a final rule entitled “Modifications to the HIPAA Privacy, Security, and Enforcement Rules Under the Health Information Technology for Economic and Clinical Health Act, and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules.” (2013 Omnibus Rule). A portion of that rule was challenged in federal court, specifically provisions within 45 C.F.R. §164.524, that cover an individual’s access to protected health information. On January 23, 2020, a federal court vacated the “third-party directive” within the individual right of access “insofar as it expands the HITECH Act’s third-party directive beyond requests for a copy of an electronic health record with respect to [protected health information] of an individual . . . in an electronic format.” Additionally, the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.
This means that Ciox and other similar companies are now bound only by state laws limiting how much they can charge. It's nearly hand to hand combat against these ripoff artists.The right of individuals to access their own records and the fee limitations that apply when exercising this right are undisturbed and remain in effect. OCR will continue to enforce the right of access provisions in 45 C.F.R. § 164.524 that are not restricted by the court order. A copy of the court order in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020), may be found at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0040-51.
8 comments:
And they routinely ignore the state laws. One of the most challenging aspects of disability practice is dealing with these crooks.
First, this is the District Court and it is entirely possible that HHS may appeal. If it does, we can only hope, we can relax for awhile.
Otherwise, it will be interesting to see just how long it takes for the various other record providers to adjust their practices and start billing the extortionate dollar per page and up that they were doing in the past.
Ultimately, as much as a hate to do it, it may well mean that we will have to have our clients sign the letters requesting the information and the records will be sent to them and they will then bring them to us. What a pain that will be, not because of the extra work but mainly because the client will just not do it when they get the records.
After a quick read, it's not as ominous as it seems. First, the court did not actually rule on the merits of the question of whether extending the Patient Rate to third-party directives. The Court did seem to think that the wording of the statute was obvious that it was not intended to extend the rate to third-party directives. I don't agree and, without closer reading, am struggling to understand why the court saw that. Regardless, even though the court expressed that opinion, it specifically stated it was not going to include that in the judgment. It vacated the 2016 Guidance because of a failure to follow the notice and comment requirements of the APA. The Court also vacated HHS' interpretation extending the third-party directive beyond records in electronic format. The holding is, therefore, more limited than it seems at first glance. There are cases pending in other courts and I suspect other judges will not agree with this judge on what he considered to be "obvious" in the statutory language.
I agree with 2:32. If HHS goes back and redoes the process with notice and comment requirements they seem to be able to fix the deficiencies the court points out.
I am not sure where he is getting some of the other holdings. In the short term it seem the CIOX will probably use this ruling to charge search and retrieval and higher fees.
what are the chances that this Administration appeals this or goes back through the notice and comment period?
Here in Indiana we have already started receiving notices from CIOX and some other providers that they will no longer honor our HITECH requests and will start charging the rate under Indiana statute. It sure didn't take them long.
Well, we are a small firm, so our plan for now is to order that the records be sent in CD format, then send envelopes in which the claimant can just take the CD, place it in the envelope, and send it to us, then vote Democrat.
7:23pm thanks for the lol
7:23 - not sure about your vote Democrat comment considering that the judge in this case, whom I believe completely misread the statute, is an Obama appointee.
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