What if the VA doesnt send you medical records?

[USMC_VET]

So i am waiting on my C-File and this may or may not be in it. However I am trying to find information specific to a TBI eval i had a eyar after i got out.  It does NOT show up in my Blue button VAMC info, etc.  So it is not in the public(veteran) side of my health records.  So in June i sent a Form 10-5345 to the Alaska VAMC to get my records (http://www.va.gov/vaforms/medical/pdf/vha-10-5345-fill.pdf)  i got no response, not even the VA obligatory, "hey we got your request, mongo will work on it...no idea when he will get it done though, but sometime between Now and the Sun goes Supernova"

So in August or September (will have to look at my certified mail slips) i sent another 10-5345 requesting the same medical records, this time with the "hey by the way i sent this X months ago and heard nothing, so please send it my way".

I have been trying to research the CFR/VA regs regarding this and what i needed to cite in my next letter, this time to the VAMC and the VARO director so that they know i speak their language and pull out some federal regulations on them.

What i have found so far is this....

 

VHA HANDBOOK 1605.1 (also attached)

5.

INDIVIDUALS’ RIGHTS

a.

The Individual

(1)

Individuals have the right to be provided with a Notice of the privacy practices of VHA concerning individually-identifiable health information. This notice must explain the following: how VHA may use and disclose individually-identifiable health information; the individual’s rights regarding the individual’s individually-identifiable health information; and VHA’s legal duties with respect to individually-identifiable health information (see par. 6).

(2)

Individuals have the right to access and/or view and obtain a copy of their ownindividually-identifiable information, including PHI, contained in a VA system of records or retrievable by the individual’s name (see par. 7).

(3)

Individuals have the right to ask VHA to amend their individually-identifiable information including PHI. This right to amendment must be granted unless authority to deny the request is present (see par. 8).

(4)

Individuals have the right to an accounting of disclosures of their individually-identifiable information (see par. 9).

(5)

Individuals have the right to request VHA send communications regarding individually-identifiable health information by alternative means or at alternative locations. VHA must accommodate reasonable requests (see par. 10).

(6)

Individuals have the right to request VHA to restrict the uses and/or disclosures of the individual’s individually-identifiable health information to carry out treatment, payment, or health care operations. Individuals also have the right to request VHA to restrict disclosures of the individual’s individually-identifiable health information to next-of-kin, family, or significant others involved in the individual’s care. VHA is not required to agree to such restrictions, but if it does, VHA must adhere to the restrictions to which it has agreed, unless information covered under the agreed to restriction is needed to provide a patient with emergency treatment (see par. 11). VHA will not agree to a restriction on a use or disclosure required by law.

(7)

Individuals have the right to file a complaint with VHA (see subpar. 35d SHOWN BELOW). Individuals  also have the right to file a complaint to the Secretary of the Department of Health and Human Services (HHS) in accordance with 45 CFR 160.306 when the individual believes VHA did not  comply with the provisions of 45 CFR Parts 160 and 164 (PART 164 BELOW SUBPAR 35D). The right is in addition to any rights that the individual has under the Privacy Act.

(8)

Individuals have the right to refuse to disclose their SSN to VHA. The individual shall not be denied any right, benefit, or privilege provided by law because of refusal to disclose to VHA an SSN (see 38 CFR 1.575(a))

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(SUBPAR 35 d)

Complaints

(1)

Individuals have the right to file a complaint regarding VHA privacy policies or practices. The complaint does not have to be in writing, though it is recommended.

(2)

Complaints are to be forwarded to the appropriate VA health care facility Privacy Officer, or designee, or the

VHA Privacy Office, 810 Vermont Avenue, NW, Washington, DC  20402.

(3)

All privacy complaints regardless of validity must be promptly investigated and a written response provided to the complainant. In addition, all privacy complaints, regardless of  validity, must be reported in the Privacy Violation Tracking System (PVTS) for audit purposes  in accordance with VA Directive 6502, VA Privacy Program, and VA Handbook 6502.1,

PVTS.

(4)

The VHA HIPAA Program Management Office (PMO) serves as the central authority for coordination of HIPAA Privacy complaints received by VHA from HHS Office for Civil Rights. Any HIPAA privacy complaints received by VA health care facilities should be Forwarded to the VHA HIPAA PMO.

 

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45CFR §164.524   Access of individuals to protected health information.

(a) Standard: Access to protected health information—(1) Right of access. Except as otherwise provided in paragraph (a)(2) or (a)(3) of this section, an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set, except for:

(i) Psychotherapy notes; and

(ii) Information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.

(2) Unreviewable grounds for denial. A covered entity may deny an individual access without providing the individual an opportunity for review, in the following circumstances.

(i) The protected health information is excepted from the right of access by paragraph (a)(1) of this section.

(ii) A covered entity that is a correctional institution or a covered health care provider acting under the direction of the correctional institution may deny, in whole or in part, an inmate's request to obtain a copy of protected health information, if obtaining such copy would jeopardize the health, safety, security, custody, or rehabilitation of the individual or of other inmates, or the safety of any officer, employee, or other person at the correctional institution or responsible for the transporting of the inmate.

(iii) An individual's access to protected health information created or obtained by a covered health care provider in the course of research that includes treatment may be temporarily suspended for as long as the research is in progress, provided that the individual has agreed to the denial of access when consenting to participate in the research that includes treatment, and the covered health care provider has informed the individual that the right of access will be reinstated upon completion of the research.

(iv) An individual's access to protected health information that is contained in records that are subject to the Privacy Act, 5 U.S.C. 552a, may be denied, if the denial of access under the Privacy Act would meet the requirements of that law.

(v) An individual's access may be denied if the protected health information was obtained from someone other than a health care provider under a promise of confidentiality and the access requested would be reasonably likely to reveal the source of the information.

(3) Reviewable grounds for denial. A covered entity may deny an individual access, provided that the individual is given a right to have such denials reviewed, as required by paragraph (a)(4) of this section, in the following circumstances:

(i) A licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person;

(ii) The protected health information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to such other person; or

(iii) The request for access is made by the individual's personal representative and a licensed health care professional has determined, in the exercise of professional judgment, that the provision of access to such personal representative is reasonably likely to cause substantial harm to the individual or another person.

(4) Review of a denial of access. If access is denied on a ground permitted under paragraph (a)(3) of this section, the individual has the right to have the denial reviewed by a licensed health care professional who is designated by the covered entity to act as a reviewing official and who did not participate in the original decision to deny. The covered entity must provide or deny access in accordance with the determination of the reviewing official under paragraph (d)(4) of this section.

(b) Implementation specifications: Requests for access and timely action—(1) Individual's request for access. The covered entity must permit an individual to request access to inspect or to obtain a copy of the protected health information about the individual that is maintained in a designated record set. The covered entity may require individuals to make requests for access in writing, provided that it informs individuals of such a requirement.

(2) Timely action by the covered entity. (i) Except as provided in paragraph (b)(2)(ii) of this section, the covered entity must act on a request for access no later than 30 days after receipt of the request as follows.

(A) If the covered entity grants the request, in whole or in part, it must inform the individual of the acceptance of the request and provide the access requested, in accordance with paragraph (c) of this section.

(B) If the covered entity denies the request, in whole or in part, it must provide the individual with a written denial, in accordance with paragraph (d) of this section.

(ii) If the covered entity is unable to take an action required by paragraph (b)(2)(i)(A) or (B) of this section within the time required by paragraph (b)(2)(i) of this section, as applicable, the covered entity may extend the time for such actions by no more than 30 days, provided that:

(A) The covered entity, within the time limit set by paragraph (b)(2)(i) of this section, as applicable, provides the individual with a written statement of the reasons for the delay and the date by which the covered entity will complete its action on the request; and

(B) The covered entity may have only one such extension of time for action on a request for access.

(c) Implementation specifications: Provision of access. If the covered entity provides an individual with access, in whole or in part, to protected health information, the covered entity must comply with the following requirements.

(1) Providing the access requested. The covered entity must provide the access requested by individuals, including inspection or obtaining a copy, or both, of the protected health information about them in designated record sets. If the same protected health information that is the subject of a request for access is maintained in more than one designated record set or at more than one location, the covered entity need only produce the protected health information once in response to a request for access.

(2) Form of access requested. (i) The covered entity must provide the individual with access to the protected health information in the form and format requested by the individual, if it is readily producible in such form and format; or, if not, in a readable hard copy form or such other form and format as agreed to by the covered entity and the individual.

(ii) Notwithstanding paragraph (c)(2)(i) of this section, if the protected health information that is the subject of a request for access is maintained in one or more designated record sets electronically and if the individual requests an electronic copy of such information, the covered entity must provide the individual with access to the protected health information in the electronic form and format requested by the individual, if it is readily producible in such form and format; or, if not, in a readable electronic form and format as agreed to by the covered entity and the individual.

(iii) The covered entity may provide the individual with a summary of the protected health information requested, in lieu of providing access to the protected health information or may provide an explanation of the protected health information to which access has been provided, if:

(A) The individual agrees in advance to such a summary or explanation; and

(B) The individual agrees in advance to the fees imposed, if any, by the covered entity for such summary or explanation.

(3) Time and manner of access. (i) The covered entity must provide the access as requested by the individual in a timely manner as required by paragraph (b)(2) of this section, including arranging with the individual for a convenient time and place to inspect or obtain a copy of the protected health information, or mailing the copy of the protected health information at the individual's request. The covered entity may discuss the scope, format, and other aspects of the request for access with the individual as necessary to facilitate the timely provision of access.

(ii) If an individual's request for access directs the covered entity to transmit the copy of protected health information directly to another person designated by the individual, the covered entity must provide the copy to the person designated by the individual. The individual's request must be in writing, signed by the individual, and clearly identify the designated person and where to send the copy of protected health information.

(4) Fees. If the individual requests a copy of the protected health information or agrees to a summary or explanation of such information, the covered entity may impose a reasonable, cost-based fee, provided that the fee includes only the cost of:

(i) Labor for copying the protected health information requested by the individual, whether in paper or electronic form;

(ii) Supplies for creating the paper copy or electronic media if the individual requests that the electronic copy be provided on portable media;

(iii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and

(iv) Preparing an explanation or summary of the protected health information, if agreed to by the individual as required by paragraph (c)(2)(iii) of this section.

(d) Implementation specifications: Denial of access. If the covered entity denies access, in whole or in part, to protected health information, the covered entity must comply with the following requirements.

(1) Making other information accessible. The covered entity must, to the extent possible, give the individual access to any other protected health information requested, after excluding the protected health information as to which the covered entity has a ground to deny access.

(2) Denial. The covered entity must provide a timely, written denial to the individual, in accordance with paragraph (b)(2) of this section. The denial must be in plain language and contain:

(i) The basis for the denial;

(ii) If applicable, a statement of the individual's review rights under paragraph (a)(4) of this section, including a description of how the individual may exercise such review rights; and

(iii) A description of how the individual may complain to the covered entity pursuant to the complaint procedures in §164.530(d) or to the Secretary pursuant to the procedures in §160.306. The description must include the name, or title, and telephone number of the contact person or office designated in §164.530(a)(1)(ii).

(3) Other responsibility. If the covered entity does not maintain the protected health information that is the subject of the individual's request for access, and the covered entity knows where the requested information is maintained, the covered entity must inform the individual where to direct the request for access.

(4) Review of denial requested. If the individual has requested a review of a denial under paragraph (a)(4) of this section, the covered entity must designate a licensed health care professional, who was not directly involved in the denial to review the decision to deny access. The covered entity must promptly refer a request for review to such designated reviewing official. The designated reviewing official must determine, within a reasonable period of time, whether or not to deny the access requested based on the standards in paragraph (a)(3) of this section. The covered entity must promptly provide written notice to the individual of the determination of the designated reviewing official and take other action as required by this section to carry out the designated reviewing official's determination.

(e) Implementation specification: Documentation. A covered entity must document the following and retain the documentation as required by §164.530(j):

(1) The designated record sets that are subject to access by individuals; and

(2) The titles of the persons or offices responsible for receiving and processing requests for access by individuals.

[65 FR 82802, Dec. 28, 2000, as amended at 78 FR 5701, Jan. 25, 2013; 78 FR 34266, June 7, 2013; 79 FR 7316, Feb. 6, 2014]

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So basically im going to write the RO Director and the VAMC and cite 45 CFR as my right to access this information, that my requests were properly submitted via FORM 10-5345 to the VAMC on two occassions and have violated 45 CFR 164.524 part 2 and have taken longer than 30 days to complete and there was no correspondence as required in 45 CFR 164.524 part 2 that stated any delay and the reasons behind it, while also citing 45 CFR 164.524 part 2 that states this delay can only be used on one ocassion.  If a time of 10 working days upon deliver of this letter passes without correspondence regarding the processing of this records request I will be file a formal complaint in compliance with the VHA Handbook 1605.1 subpar 35 d.

 

 

 

 

[USMC_VET]

Latest update is i decided to try one more time before i sent angry letter to the RO and lodged a formal complaint with the VHA privacy office.

I went into IRIS and wrote a brief message stating the timetables for when i sent the requests and the exorbitant time i have given them to fultill this request.  i also briefly quoted the VHA handbook and 45CFR citations on the timetables for meeting these requests as well as my right to lodge a formal complaint with the VHA and that i was hoping to avoid having to do that.

I sent it yesterday. and this was the response this afternoon.

"The Patient Advocate at your facility will address this with Medical Records. The supervisor is XX at XXX-XXX-XXXX. You may also contact her directly."

Seems like, as always, if you show that you know the regulations they are supposed to follow and slap them with it, things start to move.  time will tell if this results in the correct response or not.  I will call on wednesday if i have not seen any movement or had any contact.