Hospitals and doctors are notorious for ignoring state law. Section 18 of New York’s public health law requires hospitals and doctors to provide copies of medical records within ten days of receiving the request, but they NEVER COMPLY. Your staff’s phone calls and follow-up letters are ignored by hospitals and doctors and your cases sit in limbo while you wait.
To make things worse, there have been times that you have been told that the medical records will cost hundreds or thousands of $ because of copying fees of voluminous records. The hospital or doctor charges the maximum fee permitted under state law and takes their sweet time responding. 95% of the time you don’t even get the medical records you requested. THIS SUCKS!
A Powerful Tool for Reducing Costs of Medical Records
The Health Information Technology for Economic and Clinical Health Act (“HITECH” Act) can substantially limit the costs for obtaining medical records. The HITECH Act was signed into law on February 17, 2009. Significantly, the Act preempts state law (45 C.F.R. section 160.203; 45 C.F.R. section 160.202).
Protected health information means all information (e.g., records, bills) that are: (1) transmitted in electronic media; (2) maintained in electronic media; or (3) transmitted or maintained in any other form or medium. 45 C.F.R. section 160.103.
The Act includes language that the individual making the request for medical records can designate a third-party to receive the information, i.e., an attorney. 42 U.S.C. section 17935(e)(1). Whether it is for a potential client or a current client, ask your clients to sign a request letter with the only reference to a law firm being the designated third-party who should receive the information, and send that letter to the healthcare provider.
The healthcare provider must act on the request no later than 30 days from the receipt of the request (45 C.F.R. section 164.524(b)(2)(i) by: (1) providing the requested information, or (2) providing the individual with written denial of the information.
Get Medical Records Faster
By using the HITECH Act, you can have complete copies of the medical records within days of the request, as opposed to making the request, waiting for a pre-bill, pay the pre-bill, wait 45-90 days or more to receive the records only to discover that the hospital did not send everything that you requested.
The medical records requested by an individual must be provided in the form requested by the individual, including in a readable electronic form if the covered entity uses electronic medical records. 45 C.F.R. section 164.524(c)(2)(i)(ii); 42 U.S.C. section 17935(e)(1),(2). This could be a pdf, compact disc, or via an encrypted email if the individual is warned of the security risk associated with encrypted email. 78 Federal Register 5636, at page 5634 (January 25, 2013).
Cost-Based Fees for Medical Records
The fees for medical records must be reasonable and cost-based. 45 C.F.R. section 164.524(c)(4). What is “reasonable” and “cost-based” can be determined on a case-by-case basis if there is a dispute. See 78 Federal Register 5636 (January 25, 2013).
Under the Act, any fee that the covered entity may impose for providing an individual with a copy of electronic medical records shall not be greater than the entity’s labor costs in responding to the request for the copy. 42 U.S.C. section 17935(e)(2). An entity’s labor costs for providing electronic records can only include: (1) labor for copying, whether in paper or electronic form, (2) supplies for creating the paper copy or electronic media, and (3) postage if the individual has requested the information be mailed.
Regardless of whether paper or electronic copies are requested under the Act, the individual is able to choose the method of production of medical records under the Act (45 C.F.R section 164.524(a)(1), and the regulations state it can be in paper or electronic form (45 C.F.R. section 164.524(c)(4)(i-iv). 42 U.S.C. section 17935(e)(2) deals with fees under the Act only for records provided in an “electronic form”, while 45 C.F.R. section 164.524(c)(4)(i-iv) discusses both paper and electronic records.
Enforcement of HITECH
The Office of Civil Rights (“OCR” of the Department of Health and Human Services (“DHHS”) can investigate complaints and levy fines for violations of the Act. See, 42 U.S.C. 1320d-5. If a healthcare provider is found to have “willfully neglected” a provision of the Act, the Office of Civil Rights can impose mandatory fines of up to $250,000 and up to $1.5 million for repeat or uncorrected violations. See, 42 U.S.C. 1320d-5.
After a letter explaining the Act and the consequences if the provider does not comply with the Act, the medical records appear a few days later…at no charge.
Taking Back Control from Hospitals and Doctors
The HITECH Act will allow you to get medical records at a much lower cost than the state rate, i.e., section 18 of New York’s Public Health Law permits a copying charge for medical records of a maximum of 75 cents per page. You can expect push back form the covered entities who want the state rate or don’t know the law. But a simple letter laying it out to the entity will deliver the result you want.