Administrators managing patient records of bankrupt health care providers are under pressure. Given the increasing number of health care organizations with red numbers, this issue must be resolved quickly, believes trustee and privacy lawyer Els Doornhein.
More and more healthcare providers are in the red, leading to more bankruptcies in the sector. Els Doornhein, partner, trustee and privacy attorney at de Vos and Partners Lawyers, and Lisanne Brugman, privacy attorney at Ploum Lawyers, published an article in the Journal of Trustees on the role of the trustee with respect to patient records (1).
Indeed, the trustee is facing significant obligations when it comes to the retention of patient records of bankrupt health care providers. PONT | Data & Privacy sat down with Doornhein to discuss this development.
It is increasingly common for the trustee's office to bear the cost of complying with patient record retention requirements during bankruptcy.
According to Doornhein, who previously worked as a trustee of several healthcare organizations herself, this places a societal burden on the trustee if the estate does not provide the resources needed to keep patient records digitally up and running during a bankruptcy. She fears that the continuing trend of bankruptcies in healthcare will come at the expense of patient advocacy.
The duty to manage further makes the trustee responsible for handling access and deletion requests from patients and third parties. This, too, represents a significant cost because records must remain available, with the trustee further having to assess (or have assessed) whether the request justifies a breach of confidentiality and can be properly executed.
If there is no restart from bankruptcy, finding a suitable successor for the safekeeping and management obligation of these files for the period after the bankruptcy ends has proven difficult in practice. This is because without this transfer, trustees could be left with the responsibility for the files, without always having the necessary financial resources to do so or being able to take care of it during the 20 years that the duty of custody may last.
Given the increasing number of healthcare organizations with red numbers, a solution to this problem is needed, Doornhein and Bruggeman advocate in the article. They suggest some solutions:
A first possible solution is a fund to cover the costs of preserving and managing patient records during and after bankruptcy. In this, the costs would be borne by health insurers, who, after all, serve patients' interests.
Another solution to the problem is to transfer the retention and management obligation to an appropriate party in the market. That party could be designated by the Ministry of Health, Welfare and Sport.Doornhein also emphasizes the social importance of finding a solution to the problem. "I definitely think there is a task for the government. I have talked to officials up to and including the top of the Ministry of VWS, approached the minister, but no one gave home. To go crazy."
To prevent abuse or nonchalance at healthcare facilities, it is proposed that a reporting requirement be introduced for situations where it is expected that there will be no means to digitally manage and preserve patient records at and after bankruptcy. This notification would have to be made to a regulator such as the Health Care Inspectorate.
This idea is consistent with the KNMG's view that health care providers should take timely measures to preserve patient records. Failure to comply with this reporting requirement could be considered "improper administration." This proposal aims to be preventive and to relieve trustees in bankruptcies.
Although Doornhein cannot yet speak of improper governance, she acknowledges the dilemma facing administrators of health care institutions. "I don't think there is abuse per se. What I do think is distress where the money has run out, and then when a restart cannot be achieved, the director feels little inclination to keep files on the air and manage and preserve them at private expense for up to 20 more years."
All in all, this worrisome trend in the healthcare sector does not seem to be abating. Thus, the work of the trustee will be of increasing significance for the patients of bankrupt healthcare facilities and their privacy rights under the AVG.
(1) https://denhollander.info/artikel/17983
