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TJ, Esq.
TJ, Esq., Attorney
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Is it a violation of hippa for a hospital to access its billing

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Is it a violation of hippa for a hospital to access its billing records for any patient who had seen a local physician, employed by a small clinic in the same community, who, is preparing to leave that clinic to work for the local hospital, and to send mailers asking these patients to transfer their records to this soon to be hospital employee. This physician also covered the other partners and as a result, patients who only saw the patient dring coverage on a weekend were also notified, resulting in confusion.
Hello and thank you for allowing me the opportunity to assist you.

If I understand you, the hospital would be accessing its own records. If that is the case, then that is not a violation of HIPAA. It would be a violation of HIPAA to disclose those records to other parties. Accordingly, if the records were shared with the physician for the purpose of marketing, then that would be a violation.

However, you may certainly file a complaint by following the instructions HERE. The Department of Health and Human Services will investigate and decide whether there was a HIPAA violation. Please note that HIPAA does not create a private right of action. In plain English, this means that a person cannot sue a hospital (or other entity/person) for violating HIPAA. Only the Department of Health and Human Services can take action against the violator.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
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Customer: replied 4 years ago.

thank you, XXXXX XXXXX not know if using billing information to solicit business for the new employee from patients the employee was able to encounter at the other practice, and to send a blanket transfer of records to all patients who had her name on a service provided by the hospital, I feel you pointed me in the right direction, can you cite aa statute that applies? thank you

Hi again.

Can you clarify this: "and to send a blanket transfer of records to all patients who had her name on a service provided by the hospital"

Are you saying that the hospital transferred patient records to the doctor? If so, then that would be a violation of HIPAA because the hospital may only do that in order to provide healthcare for the patients ... it may not do so for marketing.
Customer: replied 4 years ago.

to clarify the hospital initiated a solicitation on behalf of the physician, who is leaving a local practice and starting to work as a physician for the hospital in the same community. The solicitations to transfer care were based on the billing information the hospital obtained from its billing dept. The hospital sent the solicitations to those patients, who had been billed for any hospital services billed to the targeted patients that had the new physician employee on the ordered service. To my knowledge, no medical information was made known to this physician, however, patients who wished to remain with the physicians previuos were confused and felt the outside clinic was closing and those physicians were retiring, some infact had received the mailed solicitation for transfer of records and had never seen the physician who is now employed by the Hospital, thank you

Hi again.

Thank you for clarifying.

The issue is this: The hospital may disclose its own records to the patient, which seems to be what occurred here.

You can read more about what is allowed and not allowed by reviewing the page HERE.
Customer: replied 4 years ago.

I have have not made myself clear the hospital used its billing database to solicit transfer of records from the physicians old employer the that physicians new employer the hospital at the hospitals outpatient clinic. The billing information was used to target the patients this new employee had seen as an employee of the other clinic. Is their no prohibition against using information for the financial benefit of a hospital employee, does the hospital have any obligation to the employer whose patients this physician had access to as a result of that employment, if not then can the hospital then use the same billing data to send mailers to patients who may have seen a physician in their employ and ask them to transfer their records, to a hospital physician because of this one chance encounter?

Hi again.

I do think that I understand. The hospital accessed and disclosed information to the patients. That is allowed. I realize that it may seem unethical to do so for the purpose of marketing for the doctor, but the privacy portion of HIPAA is designed to prevent the disclosure of private information to third parties who do not have a legitimate need for that information. Based on what you wrote, I do not see that any private information was disclosed to a third party. The hospital used its own records to send information to the patients themselves. That's not covered by HIPAA.
Customer: replied 4 years ago.

thank you for your reply, finally if a mailer was sent in error to a patient on this physicians behalf, is there any cause of action on the part of the practice affected by this error?If the request to transfer records did not come from the patient, but the hospital and its employee the new physician hire?

Hi again.

Are you asking if the practice can sue the hospital for the error? What would be the practice's damages? In other words, how was the practice harmed?
Customer: replied 4 years ago.

because of the confusion caused by the mailer to patients who did not want to transfer, or did not wish to transfer their charts, we have had to buy radio/newspaper ads stating that the clinic is still in business and the primary physicians are not retiring.

Hi again.

I see. You're talking about the first clinic. I was confused. You bring up an interesting question. My first thought is that you would not have a case because the hospital had the right to do what it did. On the other hand, if the hospital did a sloppy job and negligently caused confusion among patients that resulted in loss of business, then that may be a viable lawsuit for negligence. I think the difficult hurdle would be arguing that the hospital owed the clinic a legal duty to send the information to the patients in a non-negligent fashion. I'm not sure whether a judge would find that such a duty existed (and a duty is required in order to prevail in a lawsuit). I suppose my answer is that it's possible that the clinic could win. It's certainly not a sure thing.
Customer: replied 4 years ago.

sorry for the delay. I appreciate your input, it is a problem for the clinic the physician left , as the actions of the hospital caused problems for the clinic the physician left using the database the physician had access to(the patients the physician would have sent to the hospital for services were those that were seen as an employee of the clinic), I was sure that there must a question of law in there somewhere but I guess not, thanks.

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