HIPAA Q&A: You’ve got questions. We’ve got answers!
HIM-HIPAA Insider, June 29, 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 understand that the HIPAA omnibus final rule requires covered entities (CE) to provide patients with an electronic option for receiving their requested PHI. Patients often request that we fax their requested records. However, it is difficult to verify that the recipient's fax machine is secure, especially if it is not in the patient's home. We often receive requests (after the patient has signed an authorization or disclosure form) to fax patient records to a library, copy/print shop, post office, place of work, and other public areas.
If the request is not for treatment, payment, or operations purposes, and the CE is unable to verify that the fax is secure, can the CE decline to transmit the PHI via fax, and offer the patient another, more secure alternative?
A: The short answer is it is permissible. A bit of clarification is needed, though. The HITECH Act and the HIPAA omnibus rule require CEs to provide individuals with an electronic copy if the medical record is stored electronically. Generally, faxing a patient his or her designated record set (DRS) is not considered providing the patient with an electronic copy of the DRS, so you have more leeway to dictate how that fax is transmitted. An example of providing an electronic copy of a DRS would be providing the patient a PDF copy that can be mailed or handed to the patient on a CD or USB drive.
It is recommended that you explain the risks to the patient if he or she requests a DRS be faxed to a non-secure number. If the patient is willing to accept the risk, ensure that it is documented. In the end, the risk falls upon the patient if the DRS is breached or accessed by an unauthorized individual. It is a good idea to obtain the patient's risk acceptance in writing. If the patient is unwilling to accept the risk, it is wise not to fax the DRS to an unsecure fax machine.
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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