Health Information Management

HIPAA Q&A: You've got questions. We've got answers!

HIM-HIPAA Insider, June 22, 2015

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Submit your HIPAA questions to Editor John Castelluccio at jcastelluccio@hcpro.com and we will work with our experts to provide you with the information you need.
 
Q: I perform monthly HIPAA audits of computer systems at the medical group where I am employed. I recently started auditing physicians and allied health professionals (AHP) who are credentialed members of our medical staff. Some of the physicians think they have the right to access the records of their adult child or spouse, yet they do not believe this is a breach. When this type of access comes up in an audit, I check to see whether there is written authorization on the patient's file allowing the physician or AHP to view the record. Usually, there is not, and the physician and/or AHP is not treating the family member as a patient. They are looking at the record for personal reasons.
 
Is this truly a breach? If so, what information can I provide to the medical group to ensure everyone is aware that this may be a breach? 
 
A: It is a breach, and it may also be a federal crime. Physicians and AHPs are only permitted access to the medical records of family members if they are the treating physician or will treat the patient in the future.
 
If a physician or AHP accesses family medical information and he or she is not in an active treatment relationship with that family member, it is a breach of unsecure PHI. Access was intentional, so this wouldn't fall into the category of accidental access.
 
The HITECH Act included a new crime that has been referred to as the curiosity crime: Looking at the medical record of a family member, friend, relative, or with the intention of snooping. The U.S. Department of Justice (DOJ) has not pursued enforcement of this new provision but if the DOJ chose to, it could mean jail time and a hefty fine.
 
Editor’s note: Chris Apgar, CISSP, President of Apgar & Associates, LLC in Portland, Oregon, answered this question for HCPro’s Briefings on HIPAA newsletter. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions.



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