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Patient Safety and Quality Improvement: Civil Money Penalty Inflation Adjustment

Posted May 14 2010 9:52pm

By: Constantina Koulosousas

The first manned balloon ascent on October 15, 1783, to a height of 25 meters. This ascent was made by the Marquis d'Arlandes and Pilatre de Rozier. In: "Histoire des Ballons et des Aeronautes Celebres," by Gaston Tissandier, 1887, p. VII.

The first manned balloon ascent on October 15, 1783, to a height of 25 meters. This ascent was made by the Marquis d'Arlandes and Pilatre de Rozier. In: "Histoire des Ballons et des Aeronautes Celebres," by Gaston Tissandier, 1887, p. VII.

The Patient Safety and Quality Improvement Rule was amended, effective November 23, 2009, by the Department of Health and Human Services to adjust the maximum civil money penalty amount for violations of the confidentiality provisions. The amount was adjusted for inflation to comply with the Federal Civil Penalties Inflation Adjustment Act of 1990. This amendment was carried out through direct final rule making, as HHS expected no significant adverse comments to the rule.

The Patient Safety and Quality Improvement Act of 2005 created a voluntary program for health care providers to share what is known as “patient safety work product” (PSWP), or any information relating to patient safety events and concerns with each other and Patient Safety Organizations (PSOs). The Department of Health and Human Services is required to maintain a listing of all PSOs.

The Act amended Title IX of the Public Health Service Act for the purpose of improving patient safety and quality of care. As with attorney work product, this information is privileged and confidential. While the program may be voluntary, a knowing or reckless violation of the confidentiality requirements of the Act can result in a civil money penalty of up to $10,000 for each violation, as assessed by the Office for Civil Rights.

The deterrence effect of the civil money penalties had been reduced by inflation. This caused Congress to enact the Inflation Adjustment Act . This Act requires Federal agencies to issue regulations adjusting each civil money penalty found within the Public Health Service Act within their jurisdiction, for inflation . The agencies are required to issue these regulations at least once every four years from July 29, 2005, the date of its enactment. The inflation amount is adjusted through a three-step process.

First, the agency must calculate an increase in the penalty amount by a “cost-of-living adjustment.” “Cost-of-living adjustment” is defined in the act as the percentage for each civil monetary penalty by which the Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds the Consumer Price Index for the month of June of the calendar year in which the amount of such civil money penalty was last set or adjusted pursuant to law.

Second, the amount of increase must be rounded based on the size of the penalty as set forth in section 5(a) of the Act. Since the penalty in this case is $10,000, the increase is $1,000, making the final maximum penalty amount $11,000. Finally, the third step requires that a first adjustment be limited to 10 percent of the penalty amount. Accordingly, an $11,000 adjusted penalty is appropriate.

One great benefit of the Act is to make sure that the penalties assessed for such violations provide adequate deterrence to potential violators. This is done by periodically increasing the violation amount to account for inflation over time. Especially now in the wake of the massive health care reform and improvements in the use of Electronic Health Records, it is important to ensure patients that their personal health information remains confidential and that a breach of this confidentiality requirement will result in steep monetary penalties.

On the contrary, many may argue that the increase in the penalty amount is not adequate. Since the Act imposes a 10% cap in addition to a standard chart for calculating the inflation, it may not always be completely in sync with the current economic environment. Further, these penalty amounts are only updated every four years, which leaves a significant gap in time.

Additionally, the slight increase in money penalties assessed will not do much to comfort patients that their health information is protected and confidential. Once the information gets out, there is no amount of money assessed as a violation that can remedy the breach and the damage which may have already been done. Further, to many of the entities involved in such violations, a $10,000 penalty may seem like an insignificant slap on the wrist.

The Act only punishes a “knowing or reckless” violation of the confidentiality provisions, so breaches that occur unintentionally will not subject physicians or PSOs to liability. This mental state requirement is especially important as electronic health record software gets ironed-out, to get rid of any technical issues or glitches that may arise in the course of implementing such a national electronic system.

Conversely, the “knowing or reckless” standard may pose some difficulties enforcing liability under the Act, as it may not always be easy to prove that the confidentiality breach was done with such a state of mind, or even where the disclosure came from.

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