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MShore, Attorney
Category: Legal
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Experience:  Negotiate, Draft, and Review many complex commercial agreements each year.
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I shared an office with another physician for nearly 1 years.

Resolved Question:

I shared an office with another physician for nearly 1 ½ years. We shared the same EMR system database for storage of our patients’ information. My associate restricted my access to the EMR system, and it was absolutely impossible for me to generate a list of my own patients. I asked my associate on numerous occasions to please provide me with a list of my own patients. I decided to relocate at the end of my contract term, and I left to start my private practice and moved into my new office on January 1, 2011.

In December of 2010, I mailed a holiday card to patients from the database that I believed to be mine – I had to play the guessing game. The holiday card that was sent out consisted of a holiday greetings card, a postcard announcing my new office and an Open House date in February 2011, and a business card-sized insert with my name, two Open House specials, and a listing of some of the services I provide. All of the foregoing was in a sealed envelope. The envelope only had the patient’s name and mailing address, a stamp, and my name and address as the return-address. A few patients of my former associate were accidently included in the holiday cards that I sent out. This was an honest mistake as I had to guess which patients in the database system were mine. It was completely confusing because there were several cases that my associate and I assisted each other in the operating room. My former associate has now filed a complaint with the medical board claiming that “I illegally obtained patient information and solicited patients of [his] in violation of HIPAA and doctor / patient confidentially”.

It was not until the first week of January 2011 (after my contract term with my associate) that he finally provided me with a paper print-out of my complete patient list, despite my numerous requests during the term of our contract that he provide me with my complete patient list. It was also a week after I moved out until he provided me with my own patients’ records.

Any advice on how I should handle this in responding to the complaint filed with the medical board? Were my actions in violation of HIPAA and doctor / patient confidentially? Thank you for your time.
Submitted: 3 years ago.
Category: Legal
Expert:  MShore replied 3 years ago.
Thank you for the post, I am happy to assist you by answering your questions. Has the medical board contacted you?
Customer: replied 3 years ago.
Yes, I have received a Complaint from the Medical Board.
Expert:  MShore replied 3 years ago.
ok, do you have evidence of your prior requests for a list of your patients from your former associate that pre-date the mailing of the holiday cards? Also, did you financially contribute to the acquisition of the EMR or pay a fee for use of it?
Customer: replied 3 years ago.
Yes, I have solid documentation (emails) of my prior requests for a list of my patients pre-dating the mailing of the holiday cards. I also have documentation (an email from my former associate) clearly stating/confirming that it was not until after Jan 4, 2011 until he gave me a list of my patients on paper form - after I moved out.
Expert:  MShore replied 3 years ago.
Thank you, XXXXX XXXXX financially contribute to the acquisition of the EMR or pay a fee for use of it?
Customer: replied 3 years ago.

No I did not not. Here is the respective language from my Lease Agreement relating to the EMR.....

 

MEDICAL RECORDS: The SUBLESSOR has agreed and will allow SUBTENANT to maintain electronic medical records and electronic financial records at the premises during the term of the Agreement and any renewal therof, and to be stored on the computer server located on the premises through the PatientNow electronic medical records software, as owned by the SUBLESSOR. The patient records will be stored and protected electronically according to HIPAA guidelines. The SUBLESSOR will be required to keep, hold, and maintain the patient records during the Agreement and/or upon termination of the Agreement for a time period as outlined by the Texas Medical Board. Upon termination of the Agreement, the SUBTENANT may print paper copies of any and all associated electronic patient records on his behalf and associated financial records from the PatientNow medical records software on his behalf, and any remaining electric patient records and financial records will continue to remain stored and maintained electronically for a time period as outlined by the Texas Medical Board. Any unclaimed patient records and financial records after the expired time period has occurred as outlined by the Texas Medical Board may be permanently removed from the server.

Expert:  MShore replied 3 years ago.
Section 164.306(a) requires that
“covered entities” must:
(1) Ensure the confidentiality, integrity, and availability of all electronic protected health information the covered entity creates, receives, maintains, Marketing to Patients Journal of Academic and Business Ethics 74 or transmits;

(2) Protect against any reasonably anticipated threats or hazards
to the security or integrity of such information;

(3) Protect against any reasonably anticipated uses or disclosures of such information that are not permitted or required under subpart E of this part;

(4) Ensure compliance with this subpart by its workforce.

The strongest argument you have is with respect to your intent, and that no third party gained access to actual PHI by virtue of your action (which is the purpose of HIPAA). From your description, you already had access to the EMR prior to your separation from the sublessor (please correct me if I am wrong on this). Moreover, what you did is not considered marketing in violation of HIPAA. See http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/marketing.html

Please let me know if you have any follow up questions.
MShore, Attorney
Category: Legal
Satisfied Customers: 25285
Experience: Negotiate, Draft, and Review many complex commercial agreements each year.
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MShore
MShore
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Negotiate, Draft, and Review many complex commercial agreements each year.