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    HIPAA Regulations: The Administrative Requirements: Refraining from Intimidating or Retaliatory Acts - § 164.530(g)

    As Contained in the HHS HIPAA Rules

     

    HHS Regulations
    The Administrative Requirements: Refraining from Intimidating or Retaliatory Acts - § 164.530(g)

     

    Standard: Refraining from intimidating or retaliatory acts. A covered entity--

    1. May not intimidate, threaten, coerce, discriminate against, or take other retaliatory action against any individual for the exercise by the individual of any right established, or for participation in any process provided for, by this subpart or subpart D of this part, including the filing of a complaint under this section; and

    2. Must refrain from intimidation and retaliation as provided in Sec. 160.316 of this subchapter.

     

    HHS Description
    The Administrative Requirements: Refraining from Intimidating or Retaliatory Acts

     

    In § 164.522(d)(4) of the NPRM, in the Compliance and Enforcement section, we proposed that one of the responsibilities of a covered entity would be to refrain from intimidating or retaliatory acts. Specifically, the rule provided that “[a] covered entity may not intimidate, threaten, coerce, discriminate against, or take other retaliatory action against any individual for the filing of a complaint under this section, for testifying, assisting, participating in any manner in an investigation, compliance review, proceeding or hearing under this Act, or opposing any act or practice made unlawful by this subpart.”

    In the final rule, we continue to require that entities refrain from intimidating or retaliatory acts; however, the provisions have been moved to the Administrative Requirements provisions in § 164.530. This change is not just clerical; in making this change, we apply this provision to the privacy rule alone rather than to all the HIPAA administrative simplification rules. (The compliance and enforcement provisions that were in § 164 are now in Part 160, Subpart C.)

    We continue to prohibit retaliation against individuals for filing a complaint with the Secretary, but also prohibit retaliation against any other person who files such a complaint. This is the case because the term “individual” is generally limited to the person who is the subject of the information. The final rule prohibits retaliation against persons, not just individuals, for testifying, assisting, or participating in an investigation, compliance review, proceeding or hearing under Part C of Title XI. The proposed regulation referenced the “Act,” which is defined in Part 160 as the Social Security Act. Because we only intend to protect activities such as participation in investigations and hearings under the Administrative Simplification provisions of HIPAA, the final rule references Part C of Title XI of the Social Security Act.

    The proposed rule would have prohibited retaliatory actions against individuals for opposing any act or practice made unlawful by this subpart. The final rule retains this provision, but applies it to any person, only if the person “has a good faith belief that the practice opposed is unlawful, the manner of the opposition is reasonable and does not involve a disclosure of protected health information in violation of this subpart.” The final rule provides additional protections, which had been included in the preamble to the proposed rule. Specifically, we prohibit retaliatory actions against individuals who exercise any right, or participate in any process established by the privacy rule (Part 164 Subpart E), and include as an example the filing of a complaint with the covered entity.

     

    HHS Response to Comments Received
    The Administrative Requirements: Refraining from Intimidating or Retaliatory Acts

     

    Comment: Several commenters stated that the regulation should prohibit covered entities from engaging in intimidating or retaliatory acts against any person, not just against the “individual,” as proposed. They suggested adding “or other person or entity” after “any individual.”

    Response: We agree, and allow any person to file a compliant with the Secretary. “Person” is not limited to natural persons, but includes any type of organization, association or group such as other covered entities, health oversight agencies and advocacy groups.

    Comment: A few commenters suggested deleting this provision in its entirety. One commenter indicated that the whistleblower and retaliation provisions could be inappropriately used against a hospital and that the whistleblower's ability to report numerous violations will result in a dangerous expansion of liability. Another commenter stated that covered entities could not take action against an employee who had violated the employer's privacy provisions if this employee files a complaint with the Secretary.

    Several commenters suggested deleting “in any manner” and “or opposing any act or practice made unlawful by this subpart” in § 164.522(d)(4). The commenters indicated that, as proposed, the rule would make it difficult to enforce compliance within the workforce. One commenter stated that the proposed 164.522(d)(4) “is extremely broad and may allow an employee to reveal protected health information to fellow employees, the media and others (e.g., an employee may show a medical record to a friend or relative before filing a complaint with the Department). This commenter further stated that covered entities will “absolutely be prevented from prohibiting such conduct.” One commenter suggested adding that a covered entity may take disciplinary action against any member of its work force or any business partner who uses or discloses individually identifiable health information in violation of this subpart in any manner other than through the processes set forth in the regulation.

    Response: To respond to these comments, we make several changes to the proposed provision.

    First, where the activity does not involve the filing of a complaint under § 160.306 of this part or participation in an investigation or proceeding initiated by the government under the rule, we delete the phrase “in any manner” and add a requirement that the individual's opposition to “any act or practice” made unlawful by this subpart be in good faith, and that the expression of that opposition must be reasonable. Second, we add a requirement that the individual's opposition to “any act or practice” made unlawful by this subpart must not involve a disclosure of protected health information that is in violation of this subpart. Thus, the employee who discloses protected health information to the media or friends is not protected. In providing interpretations of the retaliation provision, we will consider existing interpretations of similar provisions such as the guidance issued by EEOC in this regard.