The Office for Civil Rights (“OCR”) of the Department of Health and Human Services (“DHHS”) has issued a Request for Information (“RFI”), seeking public comments on how to modify HIPAA’s rules to promote coordinated, value-based health care.

Value-based health care is a health care delivery model in which providers, including hospitals and physicians, receive payment based on patient health outcomes. In other words, compensation depends on whether the care improved the patient’s condition. This model will depend, in part, on patient input. Value-based care differs from a fee-for-service or capitated approach, in which providers receive payment based on the amount of health care services that they deliver, regardless of the outcome.

The concern is that HIPAA’s rules may discourage sharing among providers and between providers and their patients. And this consultant’s opinion is that such a concern is valid. Too often, providers will not share information for fear of committing a HIPAA violation. Also, providers often hesitate to release information to patients, their families, and other caregivers. I discuss these concerns in more detail in my recently published article, “20+ Years of HIPAA and What Have We Got?” in the Quinnipiac Health Law Journal, vol. 22, no. 1 (2018). See the latest blog item by Alice McCart on my article at https://www.veteranspress.com/20-plus-years-of-hipaa.

Recently, the American Medical Informatics Association (“AMIA”) and the American Health Information Management Association (“AHIMA”) told Congress that changes to HIPAA are necessary to improve patients’ access to their health data and to make it easier for that information to be shared with other providers and research organizations. They believe that certain aspects of the Privacy Rule discourage providers from sharing data and that patients are still having difficulty accessing their health information in a usable format.

Consequently, OCR has solicited public comments on the following aspects of HIPAA Rules:

• Changes to the Privacy Rule to promote information sharing for treatment, care coordination, and/or case management that encourages, incentivizes, or requires HIPAA-covered entities to disclose PHI to other covered entities.
• Changes to the HIPAA Privacy Rule to encourage health care providers and other covered entities to share treatment information with patients, their loved ones, and caregivers of adults in health emergencies, especially as related to opioid misuse.
• Implementing the HITECH Act requirement to include, in an accounting of disclosures, disclosures for treatment, payment, and health care operations (“TPO”) from an electronic health record (“EHR”) in a manner that provides helpful information to individuals, while minimizing regulatory burdens and disincentives to the adoption and use of interoperable EHRs.
• Changes to the requirement for health care providers to make a good faith effort to obtain individuals’ written acknowledgment of receipt of providers’ Notices of Privacy Practices.

Comments are also being sought from health care providers, business associates, and other covered entities, along with answers to 54 questions set forth in the RFI.

The RFI was published on December 14, 2018, and comments will be accepted till February 12, 2019, but don’t wait until the last minute! If you do not respond to this request for information, you shouldn’t complain if you don’t like the changes. And feel free to run your comments by us before you send them in to DHHS (no charge), if you think it would be helpful. Just email your comments, questions, and concerns well before February 12, 2019, to jon@veteranspress.com.

You can download the RFI from https://www.federalregister.gov/documents/2018/12/14/2018-27162/request-for-information-on-modifying-hipaa-rules-to-improve-coordinated-care. That website also includes a portal for electronic submissions and instructions for snail mail submissions. That submission deadline may or may not remain firm as a result of the government shutdown, or “lapse,” as the website calls it, but the best thing to do is to get your comments in as soon as possible. If you think of something that you want to add to your previously submitted comments, send in an addendum. Also, please note that you must mention the proper identifying information as to the RFI on your submission(s). According to the website, submissions will be published as received.