By Elizabeth McElhiney, MHA, CHPS, CPHIMS, CDH-L, CRIS, CC
Director of Compliance and Government Affairs
Verisma
February 8, 2025

Unfortunately, unauthorized disclosures (UAD) are a reality for today’s healthcare organizations. We’ve all been there – a staff member accidentally mistypes a fax number, or a patient ends up with one page of another patient’s protected health information (PHI) in their mailed medical records. What happens next determines if you have a Department of Health and Human Services (HHS) Office for Civil Rights (OCR) reportable breach on your hands. When notified that PHI may not have been delivered as directed, your compliance team needs to spring into action to mitigate any risk to PHI.

Don’t have a compliance team? Not sure what steps and procedures define your processes for HIPAA unauthorized disclosures? Read on for recommendations and best practices for mitigating compliance risk.

Develop Investigation Protocol

When you are aware of a possible UAD, mitigate the possible risk as quickly as possible. Because we oversee hundreds of millions of record requests annually, our volume is substantially higher than most – and we have a designated Compliance Officer and support team. Therefore, we have developed our UAD Investigation Protocol based on years of experience and countless processed records.
The moment a release of information specialist (ROIS) is aware of a possible incident, he or she has a short amount of time to initiate an incident report and submit it to the Compliance team. In many organizations, employees fear admitting mistakes. Creating a culture of compliance includes reassuring your team, “to err is human and to report is divine.” If your staff isn’t reporting errors to you, it is not because they are not making them, they are not admitting it. Not knowing about an incident is far worse for your organization than being aware and taking measures to mitigate the damage of compromised PHI.

When an incident occurs, we rely on our team to notify us immediately. The Compliance team then begins working the risk assessment right away to research how the situation occurred. It is important to quickly contact the unauthorized recipient and collaborate with them to securely destroy, or return, the PHI. Additionally, to assert a low probability of PHI compromise or harm, a confidentiality statement must be obtained from the unauthorized recipient, outlining the secure destruction and assuring no further disclosure of the information occurs.

It is critical that you take steps to mitigate the possibilities of future UADs. Supervisors need to re-train the ROIS on best practices and auditing procedures based upon the mistake the ROIS made. If an ROIS working at a front desk were to hand one patient another patient’s medical records, you would want to spend time discussing best practices about double checking discharge paperwork off the printer before handed over the counter.

After re-training, the Compliance Officer completes the risk assessment. On the Health Insurance Portability and Accountability Act (HIPAA) Risk Assessment, the Compliance Officer reports whether the PHI has been acquired or viewed, and determines the extent of PHI risk, following federal HIPAA guidelines and state laws. After you are aware there is a possible breach, you have 60 days to complete your investigation, unless your state requires a shorter amount of time.

Violation vs. Breach

UADs typically fall into two categories, violation or breach.

A violation is a UAD with low probability of PHI compromise. If low risk is determined and supported by the assessment, reporting the incident to the OCR and patient is not necessary. For instance, if unauthorized PHI is disclosed to a covered entity, they have a legal responsibility to protect that information. Once the covered entity has destroyed the PHI, there is a low probability of compromise and it is classified as a violation.

If there isn’t low probability of PHI compromise, the UAD is a breach. For example, if you are not able to obtain a confidentiality statement from an unauthorized recipient, there is not a proven low probability of compromise. The breach needs to be reported to the OCR and the patient must be notified, explaining how their PHI was compromised.

According to the OCR, between 2019-2023 there was a substantial 89 percent increase in hacking and a massive 102 percent increase in ransomware. Realizing the agency can issue up to a $50,000 fine per incident with an annual cap of $1.5 million is how healthcare nightmares are made.

ROI Partner

Healthcare providers often face the challenge of managing a high volume of medical record requests, which can be time-consuming and prone to manual errors. Collaborating with a trusted ROI partner transfers the workload to a team of specialists who are dedicated to handling these requests accurately, securely and efficiently – freeing up valuable time for your staff to focus on patient satisfaction.
Verisma’s team of healthcare data experts is equipped to simplify workflows with advanced technology to manage the complexities of HIPAA compliance and mitigate risks associated with UADs. We understand the importance of policies and procedures and have processes in place to protect PHI. Our compliance team can quickly assess the situation, contact unauthorized recipients, and take necessary steps to secure the information.

Ready to reduce workloads and improve patient experience? Contact us today to discuss how we can help.

By Elizabeth McElhiney, MHA, CHPS, CPHIMS, CRIS
Director of Compliance and Government Affairs
Verisma
December 9, 2024

When a patient moves between healthcare providers, their medical information and records often need to follow. Records necessary for care of the patient fall under the treatment provision on the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and (generally) don’t require an authorization from the patient or their personal representative. But when sharing records with another facility for treatment purposes, what and how much should you disclose?

What’s Transfer of Care?

While a Continuity of Care request is often a patient travelling between providers, the patient remains actively involved with both organizations. Consider a patient moving between a primary care physician and a cardiologist. It’s important for both providers to know what the other facility’s treatment of the patient entailed. So, they may submit a Continuity of Care request to obtain the records from the other provider.

A Transfer of Care request is different. In a Transfer of Care, the patient is transferring who’ll provide his or her care from one provider to another, and there’s no intent for the patient to return to the originating organization. Transfer of Care requests happen most often when the patient has moved and established care with a new provider.

Minimum Necessary Standard

The minimum necessary standard of the HIPAA Privacy Rule requires a provider to disclose the minimum amount of information be disclosed to accomplish the intended purpose. However, the minimum necessary standard isn’t required to apply to provider-to-provider requests for treatment purposes. Providers are permitted to request and disclose the amount of PHI necessary to treat a patient. The releasing provider is permitted to rely on the requesting provider’s judgment about what’s the minimum amount of information needed. Even though minimum necessary may not be required for Continuity of Care or Transfer of Care requests, the framework can serve as a best practice to get the most meaningful information to another provider.

When a provider receives hundreds of pages of medical records, it’s burdensome for them to sort through the information and determine what’s needed. The electronic health record (EHR) can be filled with “note bloat” and templated, duplicative information. For Continuity of Care purposes, most providers only need the most recent records of a patient. Sending all records for Continuity of Care requests can be a waste of time and resources. Applying the minimum necessary standard to Continuity of Care and Transfer of Care requests allows providers to receive the most pertinent information often on the first request. Of course, if the requesting provider needs more records, a second release of information (ROI) can occur with the transfer of the additional records.

Creating a Continuity of Care Policy

It’s important healthcare organizations create policies and procedures remaining consistent when applying standards like the minimum necessary. This can be done through a general ROI policy or within linked procedures and workflows. In either case, when your organization implements the minimum necessary standard for Continuity of Care or Transfer of Care requests, you should outline what factors are considered to limit the number of pages or information initially disclosed.

These factors could include, but aren’t limited to:

• An understanding with the receiving practice on what they want to receive
• Patient age
• Patient condition
• Size of the medical record
• Organization’s EHR solution
• The specialty of the provider

If your organization decides to limit the information initially sent to the requesting provider, it’s critical you make the receiving facility aware not all the information has been sent. This can be incorporated through a cover letter indicating the most recent records have been sent and include instructions on how the provider may request additional records if needed.

Release Record Requests to a Partner

If you find Continuity of Care, Transfer of Care, and all other record requests take too much of your staff’s valuable time, consider releasing this administrative burden to a partner. Verisma processes hundreds of millions of record requests annually and is an industry-leader with the highest accuracy rate. If you need to focus more on patient care, request a demo today to see how we can help.