By ROGER AMSDEN, LACONIA DAILY SUN
LACONIA — Belknap County Commissioner Richard Burchell (R-Gilmanton) was censured by his two colleagues Wednesday morning for official misconduct in connection with his attempts to access protected medical records in the state Department of Health and Human Services database.
Commissioner Hunter Taylor (R-Alton) said that he had originally been inclined to overlook the failed attempt by Burchell to gain access to the database as a case of "no harm, no foul," but said that on deeper reflection he came to view the incident as a serious matter which needed to be dealt with.
He said that on Jan. 20, Burchell had asked an administrative employee of the county to fax a copy of a form to the state Department of Health and Human Services which Burchell himself had signed authorizing access for him to the department's rate-setting database.
Burchell had signed the request as not only a Belknap County Commissioner but also a second time as an administrator with authority to authorize access and had provided his own private email address as the facility's contact email address.
The request was later denied by the Christine Ferwerda of the DHHS, who said that it needed explicit approval from the administrator of the Belknap Nursing Home. The county's HIPAA compliance officer, Patti Ricks, pointed out that the nursing home is required by law to protect the health care information of residents of the Belknap County Nursing Home to keep it from being used improperly, and that only the administrator of the nursing home has authority to grant access to the database. Ricks wrote that it was her determination that Burchell should not have access.
Taylor pointed out that Burchell had made the request for the form to be faxed to the DHHS at a meeting of the commission but had never discussed it with the other commissioners.
"A reasonable and honest person would have explained at the meeting what he proposed to do and would have asked for board authorization for such action. Mr. Burchell clearly chose a path of deception rather than one of transparency." He said that it was "conscious usurpation of board authority."
He said that Burchell knew he didn't have the authority to authorize personal access to the department's database yet still represented himself to the department through the form he filled out as having that authority.
Taylor said that Burchell's action violated two criminal code sections, both misdemeanors, for attempting to deceive a public servant and for attempting to commit the crime of unauthorized access. Taylor and County Commission Chairman David DeVoy (R-Sanbornton) voted to censure Burchell and forward information abut the violations to the Attorney General's Office "for appropriate action."
Burchell did not deny filling out the form seeking access but said that he had only done so in order to obtain information on how reimbursement rates for county homes are determined.
He explained that he had doubts over the statements made by Acting Nursing Home Administrator Bob Hemenway that the county was losing an estimated $185,420 a year in Medicaid income due to lack of adequate documentation of services provided for residents.
"I thought it was an incorrect assumption," said Burchell, who said that he had no intention of violating the privacy of any of the residents but instead wanted to determine what factors played a role in the decrease in reimbursements from $161.33 a day last year to $154.46 on July 1 of this year.
He said that he later found out from two DHHS officials that the reimbursement rates were determined by the percentage of residents of the home who are on Medicaid on two different census days during the year.
But Taylor noted that the information which Burchell says he wanted was readily available to him. "Neither Mr. Burchell nor any other commissioner has ever been denied requested information needed for appropriate oversight of county business or functions. What was denied in this instance was unlimited access to the unlimited access to the data system of the Department of Health and Human Services, which included highly protected individual nursing home resident health records."
He pointed out that HIPAA medical records violations penalties range from $100 to $50,000 per violation.
It was the second time in less than a year that Burchell has been censured by his fellow commissioners.
Burchell, who was elected as chairman of the commission in January of 2015, was ousted as chairman in early March of that year and replaced by DeVoy at a March 2 meeting during which Burchell attempted to prevent his ouster by continually rapping the gavel and declaring that the other commissioners were out of order.
At a June 4 meeting last year, commissioners Taylor and DeVoy censured Burchell for leaking information from a nonpublic meeting held while Burchell was still chairman to former Belknap County Nursing Home Administrator Matthew Logue.
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