Legislation

July 8, 2021 Remember those Privacy Rule modifications that the Department of Health and Human Services (HHS) proposed late last year? Well, after adding a 45-day extension on the public comment period back in March, the responses submitted have finally been made available – giving us some additional insight on what we can expect to see when the updates are officially finalized.   For anyone looking for a light-read while they drink their morning coffee – diving into the official HHS document might not be for you. The proposal included a lengthy list of changes centered around increasing permissible disclosures of protected health information (PHI) and enhancing care coordination and case management. As the healthcare industry has evolved, so have the necessary requirements for protecting data privacy and security – and these modifications address several issues that have become the source of widespread non-compliance over recent years. One of the major areas of focus should come as no surprise considering the initiative that was declared in 2019 to enhance enforcement for patient right of access violations – and the 19 different settlements that have resulted from it so far. So in looking at how the Privacy Rule changes plan to improve this issue, some of the major proposed provisions include: In addition to addressing patients’ right of access, the proposed modifications also clarify certain definitions and phrasing that oftentimes leads to confusion and misunderstanding by providers and patients. Some of these updates include: While the examples provided are only a snapshot of the full list of proposed modifications, each update follows suit with the evolving environment in the healthcare industry and covers relevant concerns felt by both providers and patients. So much so, that the comment period extension was made due to such a “high degree of public interest” and amounted to a total of 1,391 comments submitted in response to the HHS’s proposal.  So what can we expect?  These proposed modifications take into consideration the public comments received on the OCR’s 2018 RFI that requested public input on how HIPAA rules could improve to better “support care coordination and case management and promote value-based care while preserving the privacy and security of PHI.” Each provision is a direct reflection of the key themes identified in the public opinion received back in 2018 and addresses issues like administrative burdens and the need for improving upon patient rights. So although we don’t have a time machine to jump ahead and see what exactly the final rule will entail, we can pretty confidently say that these concerns addressed in the HHS document will continue to be a focus in regulatory amendments and government enforcement. And the high volume of public interest clearly depicts the impact and value that enacting these changes will have on patients and providers. When will you need to comply  As far as knowing the what and when of the final ruling – we don’t quite have a definitive answer. But it’s important for all covered entities to be aware and prepared for the expectations of complying with the modified Privacy Rule provisions when they are made official. According to the HHS, “The effective date of a final rule would be 60 days after publication.” Additionally, entities will still have 180 days from that effective date to update or implement policies and procedures to achieve compliance with these new standards.  So when it comes to the timeframe for when the government will actually start enforcing the new compliance standards, you have 240 days of breathing room once the final rule is published. BUT based on the HHS’s acknowledgment that the impact of adhering to these new guidelines will involve “covered entities actions to re-train their employees on, and adopt policies and procedures to implement, the legal requirements of this proposed rule” we highly recommend taking an ‘early bird gets the worm’ approach for compliance. Having a complete HIPAA program in place along with a full understanding of the potential changes that could be coming your way is the best way to ensure that your patients’ data is best protected and your practice is best prepared for avoiding a HIPAA violation and fine.

March 11, 2021 HIPAA law is officially getting with the times thanks to the proposed Privacy Rule modifications that are giving the “prehistoric law” a new modernized look. While the planned updates were officially announced last December, the Department of Health and Human Services (HHS) has just added a 45-day extension on the comment period – giving the public some more time to weigh in on what they want they want the updated legislation to cover.  The original HIPAA Privacy Rule came on the scene in 2003 – you know, like when disposable cameras and listening to Shake Ya Tailfeather by Nelly on your iPod were cool? With as much as technology has changed the world around us, it only makes sense that the laws governing data protection follow suit. Especially since they haven’t changed since being created in the “stone-ages.”  The new proposed changes go hand-in-hand with the evolving needs of patients and providers to address the issues of patient right of access and “unnecessary regulatory burdens.” Each of these have proven to be trending areas of focus in recent OCR enforcement efforts with three out of the four settlements announced in 2021 resulting from right of access complaints. But improving patient rights and boosting care coordination isn’t only in the government’s best interests, “OCR anticipates a high degree of public interest in providing input on the proposals because the HIPAA Privacy Rule affects nearly anyone who interacts with the health care system,” Acting OCR Director Robinsue Frohboese stated in response to the recent announcement. “The 45-day extension of the comment period to May 6, 2021, will give the public a full opportunity to consider the proposals and submit comments to inform future policy.” Now, we know what you’re probably thinking – is there really a high degree of public interest over HIPAA???? While the idea might come as a bit of a surprise – the major spike in patient complaints, data breaches, and government enforcement seen over just the past year have given the law some new-found fame. And since everyone loves a good comeback story, this HIPAA revival has proven that staying up on the latest and greatest in regulation changes is worth keeping on your radar.    So, even though the new extension buys you some more time to comply with the proposed updates – it’s never too early to meet mandatory HIPAA requirements. Unfortunately, the reality is that most practices today would need to perform an excavation, chiseling through mountains of dust, to bring their HIPAA compliance program out of the dark ages. If your compliance program resembles something that hasn’t been touched since Tom ruled MySpace, getting up with the times is not an option and upgrading to an electronic HIPAA solution is the perfect place to start.   Want to put in your ‘two cents’ on the proposed Privacy Rule updates? Just visit the Federal Register to read the official rule proposal and submit your comments!