THE HIPPA HAMMER
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HIPAA is by now ingrained into most personal injury practices. A HIPAA-compliant authorization is typically signed at retention and used throughout the case, allowing counsel to access the client’s personal health information, medical records, and billing, and to speak with the client’s healthcare providers.
Not infrequently, however, a request for records goes unanswered. You follow up repeatedly and still receive no response. Alternatively, you may be promised the records—yet they never materialize. Often, this isn’t the result of animus toward your client, but rather a breakdown in internal policies, procedures, staffing, or training on the provider’s end that leads to HIPAA non-compliance.
A related issue arises when a healthcare provider discloses a client’s private health information without a proper HIPAA authorization. For example, a lien recovery agent for a health insurer may send an itemization of payments directly to a liability carrier.
While HIPAA provides strong privacy protections, it notably lacks a private right of action for enforcement. As a result, patients must rely on state law to pursue claims. Fortunately, California provides strong statutory tools that can support enforcement efforts.
That said, just because HIPAA doesn’t offer a private right of action doesn’t mean violators are off the hook. The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) actively investigates and enforces HIPAA violations, and they’ve steadily increased enforcement actions in recent years. Some recent examples include:
- A chronic pain clinic in Ohio fined $32,150
- An ophthalmology provider in Colorado fined $30,000
- A residential eating disorder treatment facility in Oregon fined $160,000, with additional corrective action and a year of monitoring
- A primary care provider in North Carolina fined $10,000, also with corrective action
OCR also issued a $100,000 civil penalty to a New York physician who failed to cooperate with their investigation, waived his right to a hearing, and did not contest the findings.
The process begins with filing a complaint with OCR—an easy, fully online process available at the following site: FILE A COMPLAINT.
Whether to file a complaint while a case is ongoing should be considered carefully. In some situations, it may offer strategic leverage—particularly when dealing with recalcitrant providers who may ultimately serve as percipient or expert witnesses for either side.
If you plan to pursue enforcement of records production or privacy violations under state law, filing an OCR complaint should also be strongly considered as part of a parallel process. Often, the same set of facts will constitute violations of both HIPAA and state privacy laws.
The OCR can’t act unless someone files a complaint to get the ball rolling. Protecting privacy rights is a core tenet of consumer-focused legal practice. When the Feds give us a tool—we should use it.
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