Comment: Some commenters raised objections to provisions in the proposed rule which required that covered entities maintain records and submit compliance reports as the Secretary determines is necessary to determine compliance and required that covered entities permit access by the Secretary during normal business hours to its books, records, accounts, and other sources of information, including protected health information, and its facilities, that are pertinent to ascertaining compliance with this subpart. One commenter stated that the Secretary's access to private health information without appropriate patient consent is contrary to the intent of HIPAA. Another commenter expressed the view that, because covered entities face criminal penalties for violations, these provisions violate the Fifth Amendment protections against forced self incrimination. Other commenters stated that covered entities should be given the reason the Secretary needs to have access to its books and records. Another commenter stated that there should be a limit to the frequency or extent of intrusion by the federal government into the business practices of a covered entity and that these provisions violate the Fourth Amendment of the Constitution.
Finally, a coalition of church plans suggested that the Secretary provide church plans with additional procedural safeguards to reduce unnecessary intrusion into internal church operations. These suggested safeguards included permitting HHS to obtain records and other documents only if they are relevant and necessary to compliance and enforcement activities related to church plans, requiring a senior official to determine the appropriateness of compliance-related activities for church plans, and providing church plans with a self-correcting period similar to that Congress expressly provided in Title I of HIPAA under the tax code.
Response: The final rule retains the proposed language in these two provisions with one change. The rule adds a provision indicating that the Secretary's access to information held by the covered entity may be at any time and without notice where exigent circumstances exist, such as where time is of the essence because documents might be hidden or destroyed. Thus, covered entities will generally receive notice before the Secretary seeks to access the entity's books or records.
Other than the exigent circumstances language, the language in these two provisions is virtually the same as the language in this Department's regulation implementing Title VI of the Civil Rights Act of 1964. 45 CFR 80.6(b) and (c). The Title VI regulation is incorporated by reference in other Department regulations prohibiting discrimination of the basis of disability. 45 CFR 84.61. Similar provisions allowing this Department access to recipient information is found in the Secretary's regulation implementing the Age Discrimination Act. 45 CFR 91.34. These provisions have not proved to be burdensome to entities that are subject to these civil rights regulations (i.e., all recipients of Department funds).
We do not interpret Constitutional case law as supporting the view that a federal agency's review of information pursuant to statutory mandate violates the Fifth Amendment protections against forced self incrimination. Nor would such a review of this information raise Fourth Amendment problems. See discussion above regarding Constitutional comments and responses.
We appreciate the concern that the Secretary not involve herself unnecessarily into the internal operations of church plans. However, by providing health insurance or care to their employees, church plans are engaging in a secular activity. Under the regulation, church plans are subject to the same compliance and enforcement requirements with which other covered entities must comply. Because Congress did not carve out specific exceptions or require stricter standards for investigations related to church plans, incorporating such measures into the regulation would be inappropriate.
Additionally, there is no indication that the regulation will directly interfere with the religious practices of church plans. Also, the regulation as written appropriately limits the ability of investigators to obtain information from covered entities. The regulation provides that the Secretary may obtain access only to information that is pertinent to ascertain compliance with the regulation. We do not anticipate asking for information that is not necessary to assess compliance with the regulation. The purpose of obtaining records and similar materials is to determine compliance, not to engage in any sort of review or evaluation of religious activities or beliefs. Therefore, we believe the regulation appropriately balances the need to access information to determine compliance with the desire of covered entities to avoid opening every record in their possession to the government.