By Jerri Lynn Ward, JD, Garlo Ward, P.C.
www.garloward.com
Posted June 29, 2004
HHSC has published proposed rules allowing it to come to your place of business to confiscate your business records, personnel files, client charts and other documents without a warrant. The law, contract and rules previously gave HHSC the right to access these documents and to take copies made at your expense. That way, you could stay in compliance with other State and Federal laws requiring that you keep certain records on premises and continue to conduct your business with benefit of your documents.
Specifically, the proposed rules, filed with the Office of the Secretary of State on June 7, 2004, would grant the Inspector General (IG) power to sanction any provider or person, including managed care organizations and their subcontractors, who fail to allow the IG custody of copies or originals of any records, documents, or other requested items, as deemed necessary by the IG. Who IG chooses to investigate is largely discretionary. Moreover, if the IG takes the original records, and the provider requires copies of those records to continue to conduct business, the IG, again at its discretion, may allow the provider to make copies at the provider’s expense. A provider’s failure to release records as demanded by the OIG would result in administrative sanctions.
A question that remains unanswered is at what point you can have copies of your own records—and at what expense? Recently, HHSC confiscated original records from a provider. Judge Susan Covington granted a TRO against HHSC, recognizing that the agency did not have the right to do this. Though she granted the TRO, she allowed HHSC to retain the records and to hire a clerk (at the provider’s expense) to copy the records for return to the provider. The clerk barely managed to copy half a banker’s box in a week’s time.
Providers should be especially wary of the Commission’s latest attempt to further erode the due process rights of providers. The proposed change, if adopted, could take effect as soon as July 18, 2004. (To review the described sections of the proposed rules see the Texas Register, June 18, 2004, volume 29, page 5873) I strongly suggest that you make comments and try to stop this.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
