Patient denied access to her medical records

Oct. 18--From our weight to our wellness, our medical records contain sensitive details we don't want others to know.

That's why there's a federal law, known as HIPAA, requiring health care professionals and health plans to have procedures to keep your information private.

You probably know, or should know, the law allows you to obtain your own records. What you may not know is there are exceptions, and if you are denied access, you can challenge that.

Donna Kubat of Allen Township is doing it now.

She was switching physicians and asked Allen Ear, Nose and Throat Association in South Whitehall Township to send her records to her new doctor.

Kubat told me the practice forwarded treatment notes but withheld other records. It told her in a letter in August that "as a patient safety measure," the practice doesn't release "allergy testing or allergy serum records to other practices/providers for treatment purposes."

Kubat doesn't see how that's permissible and is fighting for access. She told me and the practice she wants the records for comparative purposes and her own knowledge.

"I have the right to know what they were injecting into my body every week," she said.

The practice believes otherwise and says it has the law on its side.

Allen Ear, Nose and Throat cited the state physicians' Code of Conduct, which says a "practitioner may withhold information from a patient if, in the reasonable exercise of his professional judgment, he believes release of the information would adversely affect the patient's health."

"We release all of our records as per the law except for the allergy testing records," the practice's office administrator, Anita Davis, told me.

She said patients are notified in writing about the policy. She wouldn't discuss Kubat's situation due to HIPAA, which is short for Health Insurance Portability and Accountability Act.

Allen Ear, Nose and Throat withholds records about serums and testing protocols, Davis said, because they are unique. Other providers would not be able to replicate them and harm could result if they tried. She noted that physicians should not treat patients based on records from another provider.

The policy was enacted in 2007 after a former patient took his testing records to another allergist when he moved, she said. The patient suffered anaphylaxis (a severe reaction) from an allergy treatment, and his new allergist blamed Allen Ear, Nose and Throat for providing incorrect information, she said.

"We genuinely believe that our policy is based on sound, ethical information," Davis said.

Kubat disagrees. She filed a complaint last week with the Pennsylvania State Board of Medicine, which enforces the state's Code of Conduct, and intends to file one with the U.S. Department of Health & Human Services, which enforces HIPAA.

Davis told me Allen Ear, Nose and Throat has prevailed in previous challenges, two filed with the feds and one with the state.

"We've been challenged and we've never been advised that we are acting inappropriately," she said.

In its letter to Kubat, Allen Ear, Nose and Throat said it used specific reagents and extracts in her treatment, substances that are unique to the practice and can't be replicated.

"Even the slightest variation can pose a threat for reaction if your body interprets the variation as foreign," the letter said. "Since other practices may use different reagents and extracts from different vendors or even the same vendor, it is about your body's interpretation and this cannot be predicted or managed without the proper controls in place."

The state law cited by the practice is worded slightly different from HIPAA, which says professionals may refuse to release records if "the access requested is reasonably likely to endanger the life or physical safety of the individual or another person."

The state law says records can be withheld if their release "would adversely affect the patient's health."

States can regulate patients' access to their medical records, but HIPAA would preempt any state law that is less protective, said Deven McGraw, deputy director for health information privacy at the Office for Civil Rights at the U.S. Department of Health & Human Services.

Whether a practice's application of Pennsylvania's law is contrary to HIPAA is something that would be part of an investigation if a complaint is filed, McGraw said.

In addition to complaining to state and federal authorities, patients in situations such as Kubat's can file an appeal with the practice, too, she said.

HIPAA requires practices to designate a licensed health care professional who didn't participate in the original decision to review any appeals.

The inability to access records is among the top HIPAA complaints, McGraw told me. The agency intends to issue new guidance about the law soon, so the public understands its rights and health care professionals understand their obligations.

Violators can be penalized. In 2011, the Department of Health & Human Services fined Cignet Health of Maryland $4.3 million for violating patients' rights by denying them access to their medical records and refusing to cooperate with investigators.

HIPAA puts some medical records off-limits in all circumstances, including psychotherapy notes taken by a mental health professional and inmate records if their release would jeopardize the health, safety or security of the inmate, other inmates or prison staff.

When you do get records, you may have to pay for copying and mailing. You are entitled to copies only, not originals. If records are digital, you are entitled to them in that format. A provider may not withhold records because you haven't paid for the provided care.

If you get your records and find inaccuracies, you have the right to ask a health care provider or insurer to amend them. If refused, you have the right to submit a "statement of disagreement" that must be added to your file.

The Watchdog is published Thursdays and Sundays. Contact me at watchdog@mcall.com, 610-841-2364 or The Morning Call, 101 N. Sixth St., Allentown, PA, 18101. I'm on Twitter @mcwatchdog and Facebook at Morning Call Watchdog.

GETTING YOUR RECORDS

If you are denied access to your medical records, there is recourse through state and federal agencies.

--U.S. Department of Health & Human Services, Office for Civil Rights, www.hhs.gov/ocr/, 800-368-1019

--Pennsylvania State Board of Medicine, www.doscomplaintform.state.pa.us/, 717-783-1400

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