HIPAA Consult

Answers to your questions about . . .

By Margaret M. Davino, JD

Amending patient records

Q: I've heard that, under HIPAA, patients have the right to change their medical records. Is this true?

A: Not quite. The law permits patients to request a change. In turn, you may refuse to honor that request if (a) you didn't create the record (your chart may contain items from a prior treating physician, for example); (b) the record isn't part of the "designated record set"—those treatment, billing, and other records that you use to make patient decisions; (c) the requesting patient doesn't have the right to inspect a record (a psychiatrist's personal "psychotherapy notes" fall into this category); or (d) the record is accurate and complete, as is.

But there are exceptions to the exceptions. For instance, even if you aren't the originator of the record, your patient may still retain the right to change it if she can demonstrate that her prior treating physician isn't available to do so himself.

However if you believe your records are accurate and complete—or if you believe any of the other exceptions apply—you can refuse to amend. You may also accept only part of a patient's request, refusing another part that falls within any of the above exceptions.

Q:Can I require that amendment requests be made in writing?

A: Yes, as long as you inform patients in advance. You must also notify patients if you want them to support their request with a reason. Typically, the advance notice requirement can be met by incorporating the relevant language in your practice's Notice of Privacy Practices. You should say that patients have the right to request an amendment to their records but that such requests must (a) be in writing; (b) be submitted to the designated privacy officer; and (c) include the reason for the request.

Q:Do I have a certain period of time to respond to a patient's request?

A: Yes. Under HIPAA, you must respond no later than 60 days after receiving a request. If you're unable to meet the deadline, you can extend your response time by a maximum of 30 additional days. If you take this extra time, you must provide your patient with a written explanation for the delay and the date by which you plan to respond.

Q:If I deny a patient's request to amend her record, can the patient pursue the matter?

A: There are a few things the patient can still do. She has the right to disagree in writing. If she requests it, you must append that request to her chart, along with her initial one. Or, the patient can choose not to disagree in writing, but to ask you to include her initial request and your denial in her chart. Thereafter, at the patient's request, any time you disclose medical information relating to the disagreement, you must include these documents. If you wish, you can also include your written rebuttal to these documents, providing you give a copy of that rebuttal to the patient.

The patient also has the right to submit a formal complaint to your office or directly to the Secretary of Health and Human Services. You must spell out all these rights in the written statement you give the patient when you initially deny her request. That written statement also must include the reason for the denial (the records are accurate and complete, for example).

Margaret M. Davino (mdavino@kbrny.com) is a healthcare attorney with Kaufman Borgeest & Ryan in New York City. This department answers common HIPAA-related questions. It isn't intended to provide specific legal advice. If you have a question, please submit it via e-mail to mehipaa@medec.com, or by regular mail to Medical Economics, 5 Paragon Drive, Montvale, NJ 07645. ATTN: HIPAA CONSULT. If we select your query, we'll address it in an upcoming issue. Your name will not be used.

 

Margaret Davino. HIPAA Consult: Answers to your questions about . . .. Medical Economics Nov. 7, 2003;80:28.