Optum Medical Care

Resolution Agreement

I. Recitals

1. Parties.  The Parties to this Resolution Agreement (“Agreement”) are:
   1. The United States Department of Health and Human Services, Office for Civil Rights (“HHS”), which enforces the Federal standards that govern the privacy of individually identifiable health information (45 C.F.R. Part 160 and Subparts A and E of Part 164, the “Privacy Rule”), the Federal standards that govern the security of electronic individually identifiable health information (45 C.F.R. Part 160 and Subparts A and C of Part 164, the “Security Rule”), and the Federal standards for notification in the case of breach of unsecured protected health information (45 C.F.R. Part 160 and Subparts A and D of 45 C.F.R. Part 164, the “Breach Notification Rule”). HHS has the authority to conduct compliance reviews and investigations of complaints alleging violations of the Privacy, Security, and Breach Notification Rules (the “HIPAA Rules”) by covered entities and business associates, and covered entities and business associates must cooperate with HHS compliance reviews and investigations. See 45 C.F.R. §§ 160.306(c), 160.308, and 160.310(b).
   2. Optum Medical Care of New Jersey, P.C. (formerly known as Riverside Pediatric Group, P.C. d/b/a Riverside Medical Group) (OMCNJ) is a covered entity, as defined at 45 C.F.R §160.103, and therefore is required to comply with the HIPAA Rules. OMCNJ is a private multi-specialty physician group with approximately 150 locations serving patients throughout New Jersey and Southern Connecticut.

       

      HHS and DMS shall together be referred to herein as the “Parties.”

2. Factual Background and Covered Conduct.  On October 5, October 18, October 22, November 1, November 17 and November 18, 2021, OCR received six complaints from individual complainants alleging that OMCNJ refused to provide each complainant with a copy of either the complainant’s medical records, or the complainant’s minor children’s medical records. The complaints involved interactions between the complainants and the OMCNJ Care Coordination Center’s email account, and the following physical locations: 432 Broadway, Bayonne, NJ 07002; 324 Palisades Avenue, Jersey City, NJ 07306; 714 10th Street, Secaucus, NJ 07094; 7505 Bergenline Ave., North Bergen, NJ 07047 (the “OMCNJ Locations”). HHS’s investigation of each of the six complaints indicated that the following conduct occurred (“Covered Conduct”).
   1. OMCNJ failed to provide timely access to protected health information. See 45 C.F.R. § 164.524(b)(2).
3. No Admission.  This Agreement is not an admission of liability by OMCNJ.
4. No Concession.  This Agreement is not a concession by HHS that OMCNJ is not in violation of the HIPAA Rules and not liable for civil money penalties.
5. Intention of Parties to Effect Resolution.  This Agreement is intended to resolve HHS Transaction Numbers 22-446131, 22-448130, 22-449153, 22-450621, 22-453621 and 22- 453809 and any potential violations of the HIPAA Rules related to the Covered Conduct specified in paragraph I.2 of this Agreement. In consideration of the Parties’ interest in avoiding the uncertainty, burden, and expense of formal proceedings, the Parties agree to resolve this matter according to the Terms and Conditions below.

II. Terms and Conditions

6. Payment.  HHS has agreed to accept, and OMCNJ has agreed to pay HHS, the amount of $160,000 (“Resolution Amount”). OMCNJ agrees to pay the Resolution Amount in one lump-sum within five (5) days of the Effective Date of this Agreement as defined in paragraph II.14 pursuant to written instructions provided by HHS.
7. Corrective Action Plan.  OMCNJ has entered into and agrees to comply with the Corrective Action Plan (“CAP”), attached as Appendix A, which is incorporated into this Agreement by reference. If OMCNJ breaches the CAP, and fails to cure the breach as set forth in the CAP, then OMCNJ will be in breach of this Agreement and HHS will not be subject to the Release set forth in paragraph II.8 of this Agreement.
8. Release by HHS.  In consideration of and conditioned upon OMCNJ’s performance of its obligations under this Agreement, HHS releases OMCNJ from any actions it may have against OMCNJ under the HIPAA Rules arising out of or related to the Covered Conduct identified in paragraph I.2 of this Agreement. HHS does not release OMCNJ from, nor waive any rights, obligations, or causes of action other than those arising out of or related to the Covered Conduct and referred to in this paragraph. This release does not extend to actions that may be brought under Section 1177 of the Social Security Act, 42 U.S.C. § 1320d-6.
9. Agreement by Released Parties.  OMCNJ shall not contest the validity of its obligation to pay, nor the amount of, the Resolution Amount or any other obligations agreed to under this Agreement. OMCNJ waives all procedural rights granted under Section 1128A of the Social Security Act (42 U.S.C. § 1320a- 7a) and 45 C.F.R. Part 160 Subpart E, and HHS claims collection regulations at 45 C.F.R. Part 30, including, but not limited to, notice, hearing, and appeal with respect to the Resolution Amount.
10. Binding on Successors.  This Agreement is binding on OMCNJ and its successors, heirs, transferees, and assigns.
11. Costs.  Each Party to this Agreement shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement.
12. No Additional Releases.  This Agreement is intended to be for the benefit of the Parties only, and by this instrument the Parties do not release any claims against or by any other person or entity.
13. Effect of Agreement.  This Agreement constitutes the complete agreement between the Parties. All material representations, understandings, and promises of the Parties are contained in this Agreement. Any modifications to this Agreement shall be set forth in writing and signed by all Parties.
14. Execution of Agreement and Effective Date.  The Agreement shall become effective (i.e., final and binding) upon the date of signing of this Agreement and the CAP by the last signatory (“Effective Date”).
15. Tolling of Statute of Limitations.  Pursuant to 42 U.S.C. § 1320a-7a(c)(1), a civil money penalty (“CMP”) must be imposed within six (6) years from the date of the occurrence of the violation. To ensure that this six (6)-year period does not expire during the term of this Agreement, OMCNJ agrees that the time between the Effective Date of this Agreement (as set forth in paragraph II.14) and the date the Agreement may be terminated by reason of OMCNJ’s breach, plus one-year thereafter, will not be included in calculating the six (6) year statute of limitations applicable to the violations which are the subject of this Agreement. OMCNJ waives and will not plead any statute of limitations, laches, or similar defenses to any administrative action relating to the Covered Conduct identified in paragraph I.2 that is filed by HHS within the time period set forth above, except to the extent that such defenses would have been available had an administrative action been filed on the Effective Date of this Agreement.
16. Disclosure.  HHS places no restriction on the publication of the Agreement. In addition, HHS may be required to disclose material related to this Agreement to any person upon request consistent with the applicable provisions of the Freedom of Information Act, 5 U.S.C. § 552, and its implementing regulations, 45 C.F.R. Part 5.
17. Execution in Counterparts.  This Agreement may be executed in counterparts, each of which constitutes an original, and all of which shall constitute one and the same agreement.
18. Authorizations.  The individual(s) signing this Agreement on behalf of OMCNJ represents and warrants that they are authorized to execute this Agreement and bind OMCNJ, as set forth in paragraph I.1.B. The individual(s) signing this Agreement on behalf of HHS represent and warrant that they are signing this Agreement in their official capacities and that they are authorized to execute this Agreement.

For Optum Medical Care of New Jersey, P.C.

/s/
Dr. Gaurang Brahmbhatt
President

Date

For the United States Department of Health and Human Services

/s/
Linda C. Colón
Regional Manager, Office for Civil Rights

Eastern and Caribbean Region

11/15/2023
Date

Appendix A

Corrective Action Plan

Between the

U.S. Department of Health and Human Services

And

OPTUM MEDICAL CARE OF NEW JERSEY, P.C.

I.          Preamble

Optum Medical Care of New Jersey, P.C. (formerly known as Riverside Medical Group, P.C. d/b/a Riverside Medical Group) (“OMCNJ”) hereby enters into this Corrective Action Plan (“CAP”) with the United States Department of Health and Human Services, Office for Civil Rights (“HHS”). Contemporaneously with this CAP, OMCNJ is entering into a Resolution Agreement (“Agreement”) with HHS, and this CAP is incorporated by reference into the Agreement as Appendix A. OMCNJ enters into this CAP as part of consideration for the release set forth in paragraph II.8 of the Agreement. Capitalized terms without definition in this CAP shall have the same meaning assigned to them under the Agreement.

II.        Contact Persons and Submissions

1. Contact Persons
   
   OMCNJ has identified the following individual as its authorized representative and contact person regarding the implementation of this CAP and for receipt and submission of notifications and reports:
   
   Donna Kasbohm, Deputy Chief Privacy Officer
   Optum
   35 United Dr
   11000 Optum Circle (MN101-E013)
   Telephone:  952-205-6220
   email: donna_m_kasbohm@optum.com
   
   HHS has identified the following individual as its authorized representative and contact person with whom OMCNJ is to report information regarding the implementation of this CAP:
   
   Linda C. Colón, Regional Manager
   Eastern and Caribbean Region
   Office for Civil Rights
   Department of Health and Human Services
   26 Federal Plaza Room 19-501
   New York, New York 10278
   Telephone (212) 264-4136
   Linda.Colon@hhs.gov  
   
   OMCNJ and HHS agree to promptly notify each other of any changes in the contact person or the other information provided above.

2. Proof of Submissions.  Unless otherwise specified, all notifications and reports required by this CAP may be made by any means, including certified mail, overnight mail, electronic mail, or hand delivery, provided that there is proof that such notification was received. For purposes of this requirement, internal facsimile confirmation sheets do not constitute proof of receiptt.

III.       Effective Date and Term of CAP

The Effective Date for this CAP shall be calculated in accordance with paragraph II.14 of the Agreement (“Effective Date”). The period for compliance (“Compliance Term”) with the obligations assumed by OMCNJ under this CAP shall begin on the Effective Date of this CAP and end one (1) year from the Effective Date, unless HHS has notified OMCNJ under Section VIII hereof of its determination that OMCNJ has breached this CAP. In the event HHS notifies
OMCNJ under Section VIII hereof, the Compliance Term shall not end until HHS notifies
OMCNJ that HHS has determined that the breach has been cured. After the Compliance Term
ends, OMCNJ shall still be obligated to: (a) submit the final Annual Report as required by
Section VI; and (b) comply with the document retention requirement in Section VII.

IV.       Time

In computing any period of time prescribed or allowed by this CAP, all days referred to
shall be calendar days. The day of the act, event, or default from which the designated period of
time begins to run shall not be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs
until the end of the next day which is not one of the aforementioned days.

V.        Corrective Action Obligations

            OMCNJ agrees to the following:

1. Review and Revise Policies and Procedures for Individual Access to PHI
   1. Within thirty (30) calendar days of the Effective Date, OMCNJ shall review, and to the extent necessary, revise the policies and procedures that apply to its workforce and relate to the right of access to protected health information (PHI) to be consistent with 45 C.F.R. § 164.524 (whether the implementation of the requirements of 45 C.F.R. § 164.524 is addressed in a single document or throughout a number of different documents, hereinafter, they are collectively referred to as the “Policies and Procedures”).
      1. The Policies and Procedures revised by OMCNJ in accordance with this Section V.A.1, shall include language informing the OMCNJ workforce that, to the extent any other related entity’s policies and procedures are applicable to OMCNJ’s operations and address the right of access to PHI under 45 C.F.R. § 164.524, and such related entity’s policies and procedures conflict with these Policies and Procedures, then these Policies and Procedures shall supersede the related entity’s policies and procedures.
      2. The term “workforce” as used in this CAP shall have the definition set forth in 45 C.F.R. § 160.103, meaning employees, volunteers, trainees and other persons whose conduct, in the performance of work for OMCNJ, is under the direct control of OMCNJ, whether or not they are paid by OMCNJ. OMCNJ acknowledges and agrees that OMCNJ’s workforce who are involved in implementing OMCNJ’s compliance with 45 C.F.R. § 164.524 (and/or to whom OMCNJ’s Policies and Procedures apply) includes certain employees of Riverside Medical Management, LLC (or any other affiliate or subsidiary of Optum that provide services to, or on behalf of, OMCNJ
   2. HHS shall review and, if necessary, recommend changes to the aforementioned Policies and Procedures. Upon receiving recommended changes from HHS, OMCNJ shall have thirty (30) calendar days to provide revised Policies and Procedures for HHS’s approval. This process shall continue until HHS approves such Policies and Procedures.
   3. Within thirty (30) days after receiving HHS’s final approval of any revisions to such Policies and Procedures, OMCNJ shall implement and distribute the Policies and Procedures to all appropriate workforce members.
2. Distribution of Policies and Procedures

   OMCNJ shall require, at the time of distribution of the Policies and Procedures, written or electronic certification signed by appropriate members of the workforce, to include Health Information Management employees and other employees who perform duties associated with access requests, and to whom OMCNJ distributed the Policies and Procedures in accordance with Section V.A.3., stating that the appropriate workforce members have read, understand, and shall abide by such Policies and Procedures.

3. Privacy Training on the Privacy Rule’s Individual Right of Access to PHI
   1. Within sixty (60) calendar days of the Effective Date, OMCNJ shall provide workforce training materials regarding an individual’s right of access to PHI consistent with 45 C.F.R. § 164.524 to HHS for review and approval
   2. Within sixty (60) calendar days of HHS’s approval, OMCNJ shall provide training to all appropriate workforce members in the Health Information Management Department and at the implicated OMCNJ Locations, and within ninety (90) calendar days and every ninety (90) days thereafter, while under the Term of this CAP, OMCNJ shall show evidence of the weekly New Hire Orientation Training and any other targeted trainings performed for OMCNJ on the Privacy Rule requirements concerning an individual’s right of access to PHI.
   3. Each workforce member who is required to attend privacy training shall certify in electronic or written form, that he or she has received the training. The training certification shall specify the date that the training was received. All course materials shall be retained in compliance with Section VII.
4. Access Request Status Requirements
   1. Within ninety (90) calendar days of HHS’s approval of the Policies and Procedures required by Section V.A.1, and every ninety (90) days thereafter while under the Term of this CAP, OMCNJ shall submit to HHS a report which includes a monthly count of all requests for access to PHI received by OMCNJ via all submission modalities except via its business associate, Ciox. The report shall also include the date the request was received, the date OMCNJ provided written notice that OMCNJ is extending the thirty (30)-day time period for OMCNJ to respond to the request (if applicable), the date the request was fulfilled, the format requested, the format provided, the number of pages (if provided in paper format), fee charged (if any), excluding postage, and – if records were emailed to the requestor – whether OMCNJ either (i) confirmed the requestor’s receipt of the emailed records, or (ii) has no indication that its email(s) to the requestor were not received.
   2. If OMCNJ denied any request for access, in whole or in part, OMCNJ shall submit to HHS all documentation consistent with 45 C.F.R. § 164.524(d).
5. Reportable Events
   1. During the Compliance Term, OMCNJ shall, upon receiving information that a workforce member may have failed to comply with the Policies and Procedures described in Section V.A.1, promptly investigate this matter. If OMCNJ determines, after review and investigation, that a member of its workforce has failed to comply with the Policies and Procedures, OMCNJ shall report such events to HHS in writing within thirty (30) calendar days. Such violations shall be known as Reportable Events. The report to HHS shall include the following:
      1. A complete description of the event, including the relevant facts, the persons involved, and the applicable provision(s) of the Policies and Procedures implicated; and
      2. A description of the actions taken and any further steps OMCNJ plans to take to address the matter to mitigate any harm, and to prevent it from recurring, including application of appropriate sanctions against workforce members who failed to comply with the Policies and Procedures./li>
   2. If no Reportable Events occur during the Compliance Term, OMCNJ shall so inform HHS in the Implementation Report as specified in Section VI below.

VI.       Implementation Report and Annual Reports

1. Implementation Report.  Within one hundred twenty (120) days after HHS approves the Policies and Procedures required by Section V.A.1. above, OMCNJ shall submit a written report to HHS summarizing the status of its implementation with the requirements of this CAP. This report, known as the “Implementation Report,” shall include:
   1. An attestation signed by an owner or officer of OMCNJ attesting that the Policies and Procedures approved by HHS pursuant to Section V.A. are being implemented, have been distributed to all appropriate members of the workforce, and that OMCNJ has obtained all of the compliance certifications required by Section V.B.;
   2. An attestation signed by an owner or officer of OMCNJ attesting that all appropriate members of the workforce have completed the initial training required by this CAP and have executed the training certifications required by Section V.C.3.; and
   3. An attestation signed by an owner or officer of OMCNJ stating that he or she has reviewed the Implementation Report, has made a reasonable inquiry regarding its content and believes that, upon such inquiry, the information is accurate and truthful.
2. Annual Reports.  The one (1)-year period beginning on the Effective Date shall be known as the “Reporting Period.” Within ninety (90) calendar days after the close of the Reporting Period, OMCNJ shall submit a report to HHS regarding OMCNJ’s compliance with this CAP during the Reporting Period (the “Annual Report”). The Annual Report shall include:
   1. An attestation signed by an owner or officer of OMCNJ attesting that all appropriate workforce members have completed the training required by Section V.C.2 during the Reporting Period;
   2. An attestation signed by an owner or officer of OMCNJ attesting that any revision(s) to the Policies and Procedures required by Section V.A. were finalized and adopted within thirty (30) calendar days of HHS’s approval of the revision(s), which shall include a statement affirming that OMCNJ distributed the revised Policies and Procedures to all appropriate members of OMCNJ’s workforce within sixty (60) calendar days of HHS’s approval of the revision(s);
   3. A summary of Reportable Events (defined in Section V.E.), if any, the status of any corrective and preventable action(s) relating to all such Reportable Events, or an attestation signed by an officer or director of OMCNJ stating that no Reportable Events occurred during the Compliance Term;
   4. An attestation signed by an owner or officer of OMCNJ attesting that he or she has reviewed the Annual Report, has made a reasonable inquiry regarding its content and believes that, upon such inquiry, the information is accurate and truthful.

VII.     Document Retention

OMCNJ shall maintain for inspection and copying, and shall provide to HHS, upon request, all documents and records relating to compliance with this CAP for six (6) years from the Effective Date.

VIII.    Breach Provisions

OMCNJ is expected to fully and timely comply with all provisions contained in this CAP.

1. Timely Written Requests for Extensions.  OMCNJ may, in advance of any due date set forth in this CAP, submit a timely written request for an extension of time to perform any act required by this CAP. A “timely written request” is defined as a request in writing received by HHS at least five (5) calendar days prior to the date such an act is required or due to be performed.
2. Notice of Breach of this CAP and Intent to Impose Civil Monetary Penalty.  The parties agree that a breach of this CAP by OMCNJ constitutes a breach of the Agreement. Upon a determination by HHS that OMCNJ has breached this CAP, HHS may notify OMCNJ of: (1) OMCNJ’s breach; and (2) HHS’s intent to impose a civil monetary penalty (CMP), pursuant to 45 C.F.R. Part 160, or other remedies, for the Covered Conduct set forth in paragraph I.2 of the Agreement and for any other conduct that constitutes a violation of the HIPAA Privacy, Security, and Breach Notification Rules (“Notice of Breach and Intent to Impose CMP”).
3. OMCNJ’s Response.  OMCNJ shall have thirty (30) calendar days from the date of receipt of the Notice of Breach and Intent to Impose CMP to demonstrate to HHS’s satisfaction that:
   1. OMCNJ is in compliance with the obligations of the CAP that HHS cited as the basis for the breach;
   2. The alleged breach has been cured; or
   3. The alleged breach cannot be cured within the thirty (30)-day period, but: (a) OMCNJ has begun to take action to cure the breach; (b) OMCNJ is pursuing such action with due diligence; and (c) OMCNJ has provided to HHS a reasonable timetable for curing the breach.
4. Imposition of CMP.  If at the conclusion of the thirty (30)-day period, OMCNJ fails to meet the requirements of Section VIII.C of this CAP to HHS’s satisfaction, HHS may proceed with the imposition of the CMP against OMCNJ pursuant to 45 C.F.R. Part 160 for any violations of the Covered Conduct set forth in paragraph I.2 of the Agreement and for any other act or failure to act that constitutes a violation of the HIPAA Rules. HHS shall notify OMCNJ in writing of its determination to proceed with the imposition of the CMP pursuant to 45 C.F.R. Part 160.

For Optum Medical Care of New Jersey, P.C.

/s/

Dr. Gaurang Brahmbhatt
President

Date

For U.S. Department of Health and Human Services

/s/

Linda C. Colón
Regional Manager
Eastern and Caribbean Region
Office for Civil Rights

11/15/2023
Date