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Accounting of Disclosures: New Rule?

Now that the long-awaited HIPAA Omnibus Rule has been released and will soon move into the enforcement phase, federal regulators are shifting attention on another overdue rule on the accounting of records disclosures.

Federal advisers are planning an all-day virtual meeting on Sept. 6 to hear healthcare industry stakeholders’ suggestions and feedback about the Department of Health and Human Services’ Office for Civil Rights’ controversial proposal that would change the HIPAA privacy rule’s guidelines for accounting of disclosures.

Back in May 2011, OCR issued a notice of proposed rulemaking soliciting comments on its preliminary concepts for a rule on accounting of disclosures. It received more than 400 comments, many of them critical of one proposal to provide patients with the right to request an “access report” with a complete list of everyone who has electronically viewed their information. The report would have to contain date and time of access, description of information accessed, and user action, such as creation, modification, or deletion of information.

Some patients and consumer advocates were supportive of the proposals in public comments. Dozens of healthcare organizations and health industry groups, however, expressed concerns that the record access report provision is impractical.

A common theme among groups opposed to the proposal was skepticism about the value that detailed access reports would provide patients, especially in light of the technical and other burdens it would create for healthcare organizations.

“We believe that HHS should significantly alter its approach to ensure that any final regulatory requirements appropriately fulfill the needs of patients who seek to understand how their PHI is disclosed, while simultaneously ensuring that covered entities are technically capable of providing such information without incurring unreasonable burdens to do so,” wrote the American Hospital Association in its public comments.

Adam Greene, a privacy attorney at Davis Wright Tremaine, says OCR’s renewed focus on the accounting of disclosures rule is a positive step. “I take this virtual hearing as a sign that they are very much open to ideas as to how to address their statutory mandate, and that they are receptive to the concerns expressed by the industry regarding their proposed access report,” he says. “I imagine that OCR is struggling with a Congressional directive to expand a patient right that is already highly burdensome and rarely utilized. I think that all options remain on the table regarding how to best address the requirements of the HITECH Act, and the needs of patients, at a reasonable cost.”

We will keep you informed on the progress of this proposed rule,

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