On March 9, 2021 the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announced a 45-day extension of the public comment period for the proposed modifications to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule. The public comment period has been extended from March 22, 2021, to May 6, 2021 in order to give the public more time to fully consider the proposed changes.
OCR first announced the proposed rule making on December 10, 2020. The proposed changes to HIPAA are part of the larger transition to a value-based health care system in which providers are compensated based on patient health outcomes. The modifications propose to address standards that may impede the transition to a value-based health care system and other unnecessary burdens by increasing individuals’ rights to access their health information, enhancing information sharing for care coordination and case management, improving family and caregiver involvement for individuals experiencing health emergencies, reducing the administrative burden on HIPAA-covered providers, and facilitating the disclosure of certain health information during emergencies such as the opioid crisis and COVID-19 pandemic. Other major provisions include:
- Defining the terms electronic health record (EHR) and personal health application
- Changing an individuals’ right of access to protected health information (PHI) by allowing individuals to take notes or pictures of their PHI, decreasing covered entities’ required response times, explaining the form and format necessary for responding to individuals’ requests for their PHI, reducing individuals’ identity verification burden, clarifying when electronic PHI (ePHI) must be provided to the individual at no cost, and requiring covered entities to post estimated fee schedules on their websites for access and disclosures of PHI
- Creating an exception to the “minimum necessary” standard for individual care coordination and case management uses and disclosures
On January 20, 2021, the incoming Biden administration released a regulatory freeze memorandum, directing the heads of Executive Departments and Agencies to halt the issuance of new proposed or final rules, withdraw rules pending publication with the Office of the Federal Register (OFR), and to consider delaying the effective date of rules already published in the Federal Register for 60 days. The purpose of the regulatory freeze was to allow the new designees or appointees to review all new and pending rules. Because the HIPAA notice of proposed rule-making (NPRM) was published in the Federal Register prior to the effective withdrawal of rules as stated in the regulatory freeze memorandum, the proposed HIPAA changes are still available in the Federal Register and open to the public for comment. However, OCR expects significant public interest in the proposed modifications, since the HIPAA privacy rules impact the majority of people and providers who interact with the healthcare system. In addition, because the HIPAA NPRM and regulatory freeze memorandum were published within a similar time frame, the public may need clarification that the HIPAA changes remain open for public comment and more time to review the changes and submit comments. Therefore, OCR has decided to extend the public comment period to May 6, 2021, to allow the public more time to inform future healthcare policy.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new and proposed regulations. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or firstname.lastname@example.org.