Posted by: Robert Markette
February 20, 2006

Aloha!  This is my first post in two weeks, because I have been on vacation.  I had intended to post at least once while on vacation, just so I could say Aloha from Oahu or Kauai, but I did not have time (or convenient high speed internet access.)  I will briefly say that my wife and I did have a wonderful time in Hawaii.  (Nothing like 75 degrees and sunny in February.)  As most of you will agree, the first day back from a vacation is always busy, and, therefore, this post will be somewhat shorter.

While I was gone, HHS published the final HIPAA enforcement rule.  Most of this rule will only concern you if you receive a notice of proposed penalty.  There are a few things you should be aware of before then.  First, if you receive a notice of proposed penalty, you have ninety days to appeal the notice -- ninety days, not sixty.  I point this out, simply because it is another, different timeframe and although it gives an entity more time to evaluate whether it wants to file the appeal or not, it can lead to confusion.   I am always in favor of longer timeframes, because it provides a longer time frame in which to try to resolve a matter before having to initiate an appeal.  The rule also states the specific requirements for how an entity may request an appeal of a proposed penalty.  As with any administrative appeal, failure to meet all of the stated requirements will result in the appeal being dismissed.

The rule gives HHS authority to settle and this authority includes the authority to reduce the proposed penalty.  The rule also provides affirmative defenses, rights of the parties, and procedures for the appeal of a penalty and an appeal of the ALJ decision.  The final rule is effective on March 16, 2006.

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