Did Doctor Violate HIPAA for Political Campaign?Report: Authorities Investigating Alleged Misuse of PHI
Federal regulators are reportedly investigating whether a physician in Richmond, Va., violated HIPAA privacy regulations by using patient information to help her campaign for the state senate.
The Philadelphia office of the Department of Health and Human Services' Office for Civil Rights is investigating potential HIPAA violations by Siobhan Dunnavant, M.D., a Republican state senate candidate, after a complaint alleged the obstetrician-gynecologist used her patients' protected health information - including names and addresses - to solicit contributions, volunteers and votes, according to an NBC news report.
Conservative blogger Thomas White tells Information Security Media Group that he reported to HHS earlier this year that letters and emails about Dunnavant's candidacy were sent to her patients prior to the June primary race in the state's 12th district, which includes western Hanover County. White says he notified HHS after receiving a copy of a letter from a Dunnavant patient who was annoyed at receiving the campaign-related communications from her doctor.
"I would love for you to be involved," Dunnavant wrote to patients, also reassuring them that their care would not be impacted if she's elected, according to a copy of a campaign letter posted on the NBC website."You can connect and get information on my website. There you can sign up to get information, a bumper sticker or yard sign and volunteer," the posted letter states. Other campaign-related material included emails sent to patients that were signed by "Friends of Siobhan Dunnavant," NBC reports and White confirmed, citing reports from patients.
The physician is one of three candidates seeking the state senate seat in the Nov. 3 election.
A spokeswoman for Dunnavant's medical practice declined to confirm to Information Security Media Group whether OCR is investigating Dunnavant for alleged HIPAA privacy violations. However, in a statement, the spokeswoman said, "We are aware of concerns regarding patient communication, and we are reviewing the issue with the highest rigor and diligence. Please be assured we hold confidentiality of patient information of paramount importance, and thank patients for entrusting us with their care."
A spokeswoman in OCR's Washington headquarters also declined to comment on the situation. "As a matter of policy, the Office for Civil Rights does not release information about current or potential investigations, nor can we opine on this case," she says.
White, editor of varight.com, says he first received a copy of one of Dunnavant's campaign letters in May, and that he was the first to report on the issues raised by the letters. He tells ISMG he filed a complaint with the federal government after he confirmed that the use of patient information for campaign purposes was a potential violation of privacy laws.
Nearly four months later, an investigator in OCR's regional office in Philadelphia, which is responsible for Virginia, on Sept. 29 responded to White's complaint, indicating the doctor's actions would be examined. White says he also confirmed again in a call to OCR on Oct. 28 that the case is still under investigation.
"You allege that Dr. Dunnavant impermissibly used the protected health information of her patients. We have carefully reviewed your allegation and are initiating an investigation to determine if there has been a failure to comply with the requirements of the applicable regulation," OCR wrote to White, according to a copy of the OCR letter that appears on White's website.
Privacy attorney Adam Greene of the law firm Davis Wright Tremaine says Dunnavant's alleged use of patient information raises several HIPAA compliance concerns.
"HHS interprets HIPAA to cover demographic information held by a HIPAA-covered healthcare provider if it is in a context that indicates that the individuals are patients of the provider," he notes. "Healthcare providers must be careful when using patient contact information to mail anything to the patient - even if no specific diagnostic or payment information is used. If a patient's address is used to send marketing communications or other communications unrelated to treatment, payment, or healthcare operations without the patient's authorization, then this may be an impermissible use of protected health information under HIPAA."
If patient contact information is shared with someone else, such as a political campaign, that also could be a HIPAA violation, Greene adds. "The same information that can be found in a phone book - to the extent anyone uses phone books - may be restricted in the hands of healthcare providers."
Privacy attorney David Holtzman, vice president of compliance at the security consulting firm CynergisTek, notes that the HIPAA Privacy Rule has "a blanket prohibition" on a HIPAA covered entity disclosing the protected health information of their patients without first seeking authorization of the individual - except where specifically permitted or required by the rule.
"There is no provision in the privacy rule where a healthcare provider who is a HIPAA covered entity can disclose patient information to a political campaign," he points out.
Because of those restrictions, federal regulators will carefully scrutinize the case, Holtzman predicts. "It is likely that OCR will look closely at the doctor's correspondence for its communication about her candidacy for political office, how to contact the campaign or obtain campaign products as well as the statement that the letter was paid for and authorized by the campaign organization."
An OCR investigation into the alleged violations of the HIPAA Privacy Rule could result in HHS imposing a civil monetary penalty, Holtzman notes. "There are criminal penalties under the HIPAA statute for 'knowingly obtaining or disclosing identifiable health information in violation of the HIPAA statute,'" he adds.
Offenses committed with the intent to view, transfer or use individually identifiable health information for commercial advantage, personal gain or malicious harm are punishable by a fine of up to $250,000 and imprisonment for up to 10 years, Holtzman notes.
"The Department of Justice is responsible for investigating and prosecuting criminal violations of the HIPAA statute," he says. "And changes in the HITECH Act clarified that a covered entity can face both civil penalties for violations of the privacy rule and criminal prosecution for the same incident involving the prohibited disclosure of patient health information."
The U.S. Department of Justice did not respond to ISMG's request for comment on whether it's planning to investigate the Dunnavant case.