Accounting of Disclosures Proposed Rule up for Review: The Beginning of a Collective Sigh of Relief or Covered Entities’ Newest Nightmare?
Prepared by Krystyna H. Nowik, Esq.
The Office of Management and Budget (OMB) has finally received the long-awaited proposed rule addressing HITECH’s accounting of disclosure amendments. As originally required by the HIPAA Privacy Rule, individuals had the right to request an accounting of disclosures made by a Covered Entity of their protected health information (PHI). However, Covered Entities did not have to comply with requests for an accounting of certain disclosures, such as for those made for treatment, payment and health care operations (TPO) purposes. With HITECH, however, came the removal of this exemption for TPO disclosures if the disclosure was made through an electronic health record (EHR) – what many Covered Entities felt was the beginning of one giant administrative and technological nightmare.
Public comment requested by the Office for Civil Rights (OCR), Department of Health and Human Services (HHS), back in May of 2010 sought to identify the burden this requirement would have on Covered Entities and their business associates, as well as the interests individuals had in obtaining an accounting of such disclosures. In particular, the Request for Information asked for comment on current system capabilities and changes that would be needed, the feasibility of an exclusive EHR model, what elements would be required for inclusion in the accounting, and the ability of Covered Entities subject to the January 1, 2011 deadline, come and gone, to comply by then.
In response, the Medical Group Management Association (MGMA) called the new requirement for TPO disclosures through EHRs “onerous” and “extremely difficult to achieve without an enormous outlay of resources.” Reflecting concerns across the nation, the 21-page letter to the Director of OCR argued that:
- Accounting for TPO disclosures imposed severe administrative burden on physician practices;
- Low patient volume of accounting requests made expenditure of resources unreasonable;
- Accounting for TPO disclosures was burdensome and unnecessary, resulting in needless burden and cost;
- Accounting for TPO disclosures discouraged adoption of EHRs by physician practices.
Covered Entities still have a long wait ahead before seeing HHS’s much anticipated (and perhaps dreaded) proposed rule. The OMB generally has up to 90 days to review proposed rules, which, if approved, are then published as Notices of Proposed Rulemaking in the Federal Register.
