Dr. G, 58, was a urologist with a solo practice. His business was thriving, and he employed both a nurse and an office manager to help him.
One morning, the office manager got a call from one of the practice's patients, Mr. M, a 52-year-old, HIV-positive man who had been seeing Dr. G for a decade. Although he was happy with the treatment he had been receiving, Mr. M's company was promoting him and he was relocating to another town. He called to ask Dr. G to fax his medical records to his new urologist.
The office manager was juggling numerous tasks, but managed to send the fax out later that day. The office did not have personalized fax cover sheets, just sheets that the office manager printed off once a week which had spaces to fill in the “to” and “from” sections. She hurriedly filled them in and shot off the fax, one of several she had to do before checking in the next patient.
At the end of the day she told Dr. G that it had been done. He thought nothing of it until the following Monday when the office manager came into the back office to speak to him. She was pale and looked shaken, and the physician immediately asked if she was okay.
“It's Mr. M,” the office manager said. “He just called – absolutely furious. He says that we faxed his medical records to his employer rather than his new doctor, and that now his company is aware of his HIV status. He is extremely upset.”
“I'm so sorry,” the office manager said tearfully. “I was the one who sent that fax out. I must have accidentally grabbed the wrong number from his file. What should we do?” She looked at Dr. G for guidance.
Dr. G was holding his forehead, and trying to figure out how to remedy the situation. “The first thing we're going to do is to call Mr. M and apologize. Then we'll take it from there.”
The office manager and Dr. G called Mr. M and apologized profusely for the mix-up. Mr. M understood that it had not been done maliciously, but he was still not satisfied and reported the incident to the U.S. Department of Health and Human Services' (HHS) Office for Civil Rights (OCR).
An initial investigation indicated that the incident was not criminal and so it was not referred to the Department of Justice. Rather, it was handled by the OCR. OCR officials appeared at Dr. G's office to look into the matter, and after a thorough investigation, the OCR issued a letter of warning to the office manager, referred the office staff for HIPAA privacy training, and had the office revise the fax cover sheets to underscore that they contain a confidential communication for the intended recipient only.
Legal Background
The Health Insurance Portability and Accountability Act, commonly known as HIPAA, protects personally identifiable health information of patients, and specifies to providers how such information may be used. HIPAA has been in effect for about a decade, and in that time, the HHS has received a total of almost 80,000 complaints.
Of those, more than 44,000 were dismissed, 19,000 were investigated and resolved with changes to privacy practice, and 9,000 were investigated but no violations were found.
According to HHS, private medical practices were the ones most often required to take corrective action as a result of enforcement. The top two compliance issues most frequently investigated are impermissible use and disclosure of protected health information and lack of safeguards for protected health information.
When a HIPAA complaint is filed with the HHS, the first determination made is whether there was a possible privacy violation and whether it was of a criminal nature. If it was determined to be criminal, the case is referred to the Department of Justice for investigation and possible prosecution. If it was determined that it was not a criminal issue (as in this case) the violation is investigated by the OCR.
If it is determined that a HIPAA violation did, in fact, take place, the OCR can either obtain voluntary compliance, corrective action or some other voluntary agreement with the offender, or the OCR can issue a formal finding of violation and force the offender to change its practices.
In this particular case, the office manager and Dr. G recognized the mistake and immediately tried to take corrective action by apologizing to the patient. Dr. G's office also voluntarily agreed to extra compliance training for the staff and to a change in their faxing procedures to indicate that the faxed materials are confidential.
This particular scenario was the result of a careless error. While a careless error can happen to anyone, one such as this could cause irreparable harm to the patient if his employer now views or treats him differently because of the new knowledge of his HIV-positive status.
Confidential patient records must be treated with the greatest of care as they contain information of an extremely personal nature. Many HIPAA cases have involved the unintentional divulging of the HIV or AIDS status of a patient.
In a similar case, a dental practice was reported for using red stickers and the word AIDS on the outside of patient folders. And in a case that took place in a hospital, a nurse and orderly lost their jobs for discussing a patient's HIV status within earshot of other patients.
A good rule of thumb is to treat a patient's confidential information as you would want yours to be treated, and then add a little extra security for good measure.
