January 23, 2020 was a very bad day for lawyers. On this day, a lower federal court in the District of Columbia ruled in Ciox Health, LLC v. Azar, No. 18-CV-00040 (APM) that a patient’s agent/representative (e.g., lawyers) cannot benefit from the limits on fees for electronic medical records that apply to requests made by patients (a/k/a the “Patient Rate”). This changed everything.
Following January 23rd, medical records retrieval companies, such as Ciox and MRO, have insisted on payment for paper copies of medical records from lawyers, and in some cases, they have charged thousands of dollars for hospital records from a single provider. Ciox and their like are forcing lawyers to pay huge fees for records that previously cost $6.50 (the “Patient Rate”) for electronic records under the HITECH Act of 2009.
Your Clients’ Rights to Electronic Medical Records
The Ciox ruling did not change two important rights of our clients: (a) patients can still make the election to receive their medical records in electronic format; and (b) the HITECH caps on fees for providing electronic medical records still apply.
HITECH grants the individual the right to obtain their medical records in an electronic format. The covered entity must respond to a HITECH medical records request within 30 days after the request is received. 45 C.F.R. section 164.524(b)(2)(i). The HITECH medical request must be in writing, signed by the client, and identify where to send the electronic records.
The fees that a covered entity can charge to respond to a HITECH medical records request are strictly limited by 45 C.F.R. section 164.524(c)(4). In most cases, the fee cannot exceed $6.50. 45 C.F.R. section 164.524 at page 15. Fees above $6.50 are presumptively unreasonable.
How Ciox Takes Advantage of You and Your Clients
Hospitals contract with Ciox (and other medical record retrieval companies) to fulfill requests for medical records. Hospitals and doctors are required to maintain medical records in electronic format and they share medical records with Ciox electronically through an online portal. Even though they receive the medical records in electronic format, Ciox sends an invoice to the patient’s third-party agent (your law firm) based upon the maximum allowable fee for providing paper copies of medical records.
Let’s say the hospital records consist of 3,213 pages. In New York, the maximum allowable fee for paper copies of medical records is 75 cents per page and the fee charged by Ciox for paper medical records amounts to $2,409.75. Under the HITECH Act, the maximum rate for electronic records for the Patient Rate (requests made directly by the patient) is $6.50. When the patient’s third-party agent requests the medical records and the request is fulfilled with paper copies, there is an extra cost of $2,403.75. This makes no sense.
Ciox charges $2,403.75 simply for clicking the copy button and mailing paper copies of the medical records. And that, my friend, is the essence of a scam. Ciox uses medical records as a commodity that it can sell to the patient’s third-party agents for a hefty profit. Ciox acknowledged that it lost more than $10,000,000 every year prior to the Ciox ruling on January 23, 2020, when the law required that they fulfill third-party requests for medical records in electronic format.
A Simple Solution to a Complex Problem
Most lawyers simply pay the exorbitant fees of Ciox for paper copies of medical records. This is a mistake. You are costing your clients and your law firm a lot of money and making Ciox rich. There are two solutions—the first option is not a long-term solution, and the second option works seamlessly.
Option #1:Have Your Clients Request Their Medical Records
Your clients can request electronic medical records directly from the hospital/doctor. When the patient requests the electronic medical record, they benefit from the caps on fees (the “Patient Rate”) and the hospital cannot charge more than $6.50 regardless of the volume of the records.
Will this work? Yes and no. Under federal law, your client cannot be charged more than $6.50 when they request electronic medical records, but everything hinges on your client’s follow up with the hospital. If the hospital refuses to honor the request or fails to timely respond to your client’s written request for electronic medical records, what happens next? Most likely nothing. Your clients are not familiar with the HITECH Act or the procedures for following up on requests for electronic medical records and they’ve got other things to do (e.g., work, family).
Relying on your clients to follow up with hospitals and doctors concerning a request for electronic medical records imposes responsibilities on your clients that you should be doing. This is not a long-term answer.
Option #2: Using a Patient Portal for Electronic Medical Records
There is a solution. It’s simple, easy to implement and Ciox and their friends can never charge more than the Patient Rate of $6.50. Here’s how this works:
Step #1: Use One Patient Access Form
ChartSquad, a personal health record (PHR) service for patients, offers an OCR approved, HIPAA-compliant, mandatory access form that all providers nationwide must accept and comply with. Your client signs an access form requesting medical records in electronic format only, pursuant to the HITECH Act. Under HIPAA, the hospital/doctor has 30 days to comply with the request. Because the patient makes the request directly to the hospital/doctor, the maximum fee for the electronic medical records is $6.50 under the HITECH Act.
Your client requests that the hospital/doctor deliver the electronic medical records to their web-based patient portal. The patient can insist upon the production of electronic health records in the format that they choose. When a request is sent directly by your client to the hospital, the medical records must be produced in the digital format chosen by your client, e.g., pdf on a CD or patient portal.
Step #2: Empower the Patient
Enter your client’s demographics into ChartSquad and upload the signed access form. In less than a minute, you’ve created a ChartSquad account for your client, granting them the power to request and share records, pursuant to HIPAA and HITECH.
If the electronic medical records are not delivered to the patient portal within 30 days, a third-party agent (more on this in a moment) follows up with the hospital/doctor. On average, the electronic medical records are delivered to the patient portal within 15 days and the cost does not exceed $6.50. If the healthcare provider does not comply or attempts to overcharge, ChartSquad will file a violation notice with the Office of Civil Rights as well as the State’s Department of Health.
Step #3: Request the Records
By right of retainer, you now have the ability to request records on behalf of your client from any treatment provider in the U.S., all with a few clicks. Your client shares access to the patient portal with you. This is the equivalent of having the patient obtain their own records. The difference is that the patient has a passive role in the process, allowing your law firm to simplify things for them.
With such access, you can file the medical records electronically into your case management program and share them with your expert witnesses. And your client has complete access to all of their medical records and authorizations on the patient portal, which they can share with their doctors. This is a win for consumers and lawyers (just not Ciox).
One Company that does this the Right Way
There are many records retrieval companies, but unfortunately, almost all of them will accept paper medical records. This means you will pay the high photocopy charges for paper medical records. There is only one records retrieval company (to my knowledge) that requires the production of electronic medical records: ChartSquad.
Here’s how ChartSquad works:
- Sign up for a new account,
- Enter the names of your client’s health care providers
- Upload an authorization signed by your client
That’s it. The average time that it takes ChartSquad to fulfill a request for electronic medical records is 15 days. ChartSquad does not provide a physical address or post office box on the electronic communication with the hospitals and doctors, so the health care providers can’t fulfill the request by mailing paper medical records. Representatives at ChartSquad do the follow up with the hospitals and doctors.
Can Ciox object to your client’s request that they deliver electronic medical records to the patient portal? No. The individual, not the health care provider, gets to choose the method for obtaining the medical records. 45 C.F.R. section 164.524(b)(1) and (c)(2). When direct requests are made by a patient, they have every right to insist upon the production of electronic medical records for the maximum fee of $6.50, pursuant to HITECH. The HITECH Act is federal law, so it supersedes state law.
Put an End to the Insanity
When the electronic medical records are uploaded into the patient portal, you will receive an email notice and your client can share access to the records on their online patient portal. You will have a dashboard where you track all requests in one location with 24/7 status.
The electronic medical records are stored in the patient portal in OCR (optical character recognition) to allow you to quickly search for keywords. Imaging films, such as x-rays, MRIs and CT scans, are uploaded to the patient portal in digital format, so you view the imaging films instantly (rather than pay software fees to review the images).
Another benefit is that your clients will have complete access to their healthcare records and can share them with their doctors. If you want to share the electronic medical records with an expert witness, you can share them through the patient portal.
The Best Reason to Insist Upon Electronic Medical Records
And the best part of this? The maximum charge for electronic medical records is $6.50. You will never again receive an invoice from Ciox or their cronies for the exorbitant costs of paper medical records. You and your clients will save a ton of money. And if that’s not enough, you can get reimbursed for the fees of ChartSquad from your client at the end of their case.
ChartSquad’s founder and CEO, Chris Carpenter (firstname.lastname@example.org, cell: 949-813-8450), is a passionate supporter of civil justice and he personally on-boards new clients. If you’re interested, call Chris Carpenter and let him walk you through Chart Squad’s process. There are no contracts or long-term commitments. After you speak with Chris Carpenter, do you own research about ChartSquad and you’ll find they have many happy customers.
Anyone who signs up with the Referral Code of 9E0C0FD2 will get $250 in free services.