Long-term care providers who have had their attention diverted by pandemic and other urgent matters need to start preparing for new HIPAA requirements as soon as possible, a pair of health-records experts stressed at the PointClickCare CONNECT@SUMMIT 2022.

The complexity of demands on providers will ramp up considerably and there is little time to waste devising new plans and processes, noted Jayne Warwick, a one-time facility director of operations and currently the senior director of medical records compliance for PointClickCare. While she forecasts changes will be put in play in 2023, she said preparation will take time to be in compliance.

“COVID has disrupted (providers) from really paying attention to things that aren’t imminent now. They paid attention to the CARES Act and the Cures Act, but I’ve noticed that a lot of them have forgotten that this is coming,” Warwick told McKnight’s Long-Term Care News Thursday.

The two biggest changes to the new health records privacy regulations will involve cutting the amount of time a provider has to present requested records from 30 days to 15, and allowing patients to visually inspect (and record) their records, Warwick explained.

“These are big changes for a lot of organizations,” she said. “If you have a lot of medical records requests, how are you going to staff to make sure you’re getting them out in the right time frame? And with visual inspections, that’s going to be a resource-intensive process. (Providers) have to have good processes around them so it’s not disruptive to the facility.”

The current laws allow for the visual inspection, but it cannot be recorded, or photographed, which means it can’t be directly shared, Warwick explained.  The\ addition of the photograph and video provisions will require policy updates and staff training, she noted.

“The requirement allows the access, but it should still be controlled and reflected in policy so that an accounting of views and disclosures is maintained.  This isn’t something that any staff member should allow any person who has an interest in the resident is allowed to do at any time,” Warwick said. “This is new and poses a new set of guidelines requiring staff training on how to address those requests.  There needs to be guidelines on the execution of the visual inspection and there are still restrictions on the ‘who’ can see it that need to be adhered to. They can actually take a photo of the record so you may have to set up a Zoom session for it. The facility will need to accommodate them.”

Other than the labor and planning needed to fulfill such requests, providers could face two major stumbling blocks under the new rules. The first deals with helping requestors understand that printed materials can be identical to on-screen representations, although they may present differently as hard copy.

“It’s called export distortion and it’s a real issue. That will start questions. It will start a whole other thought process that we need to go through with, how do we align the two so that (patients) understand what they see in the [software] is the same as if we give a printout. It just looks different.

“I think we’re going to have to do a lot more education with our residents and their families to make sure they understand they have a comprehensive picture for care,” Warwick said.

Litigation Concerns

The other big threat is the likelihood of more litigation filed against providers who aren’t careful enough.

“It will mean that information is out there more and litigation is more possible,” said Warwick, who has assisted hundreds of providers with legal challenges. Cumulatively, she has saved the sector’s providers “hundreds of millions of dollars,” estimated PointClickCare CEO Dave Wessinger.

“The lawyers I’m talking to, that’s their main concern — that information (will be) so accessible and it can be downloaded,” Warwick continued. “You’ll want to get things in writing so you know you’ve done an authorized distribution.”

She forecast that the rules, which were first unveiled in 2020 in proposed rulemaking, will be enacted in 2023, which is quick, given HIPAA’s relative “glacial” pace.

“I really believe they’re going to make these changes to HIPAA while they figure out how to align all the state and federal privacy laws that we have so we have just one overarching rule we can follow,” she said.

“[Providers] will have to be prepared. A lot of these things – like visual inspection stuff you can’t just go like this and implement it,” she said, snapping her fingers. “You’re going to have to really think through that process. To me, that’s the biggest significant change coming, is those visual inspections, and how those facilities are going to resource and manage that.

“They need to start thinking about the policy changes they need to make,” she reiterated. ”We don’t do it soon enough in long-term care. We’re very reactive, rather than proactive.”

Editor’s note: This article has been updated to clarify new provisions about copying or recording records seen during visual inspections.

This post, Providers Warned about Preparing for New HIPAA Regs, was shared by McKnights Long-Term Care News on November 4, 2022.

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