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Does 18th Right of Access Settlement Provide Needed ‘Gentle Nudging’?

The steady stream of resolution agreements between providers and the HHS Office for Civil Rights (OCR) for failures to provide patients their medical records might strike some as overkill. As of the end of March, there were 18 such settlements, which collectively brought OCR $918,500. But because OCR is 10 years late drafting a regulation for sharing penalties, none of that money went to the individuals who struggled to get their protected health information (PHI).

OCR embarked on its “Right of Access Initiative” in September 2019 with an $85,000 settlement with Bayfront Health of St. Petersburg, Florida. It ended March with two new settlements announced days apart: Village Plastic Surgery (VPS) in New Jersey paid $30,000 and agreed to a one-year corrective action plan,[1] while the price for a behavioral health system in Massachusetts was $65,000 and a one-year CAP.[2]

But at least one health care attorney says bring ‘em on.

“I don’t think 18 is too many; I don’t think 100 is too many,” Jeff Drummond, partner with Jackson Walker LLP in Dallas, told RPP. “I’m actually quite glad to see OCR taking an approach like this. I’ve always felt that OCR’s enforcement strategy has been deeply flawed.”

Drummond takes the position that OCR’s approach should be to have “a couple thousand enforcement actions that result in $10,000 penalties [rather] than the handful of multimillion-dollar ones. Having a few super-big-dollar cases is a good thing, don’t get me wrong, and I do like the fact that OCR doesn’t levy fines if the covered entity responds properly and respectfully,” he said. Yet, “there just needs to be some more gentle nudging so that people learn their lessons.”

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