Monday, April 4, 2016
Re: Request for Medical Records in Electronic Format
Patient:
Date of Birth:
Dates of Service:
Dear Sir/Madam:
We represent [name of patient]. We are enclosing a HIPAA-compliant medical authorization allowing us to obtain the medical records of this patient.
We are requesting that you provide the patient’s medical records to us in an electronic format only, e.g., compact disc, email. We will not pay for paper copies of the patient’s medical records.
Please provide us with a compact disc (“CD”) that contains the complete medical record/chart of the above-named patient relative to the patient’s treatment for all dates of treatment of service specified above and all materials or information, including, but not limited to,
All medical records, hospital records, physicians’ records, surgeons’ records, consultation records, operative reports, physical therapy and other therapy records, x-ray(s), CT scan, MRI, PET scan and reports and other diagnostic studies; laboratory reports; patient information and history questionnaire; physicals and history; discharge summary; progress notes; prescriptions and medication records; nurses’ notes; correspondence; consent for treatment; and any other materials (whether written or stored, created or maintained in any other form) relating or pertaining to this patient, including documents and records received from or that were created by another provider.
Enclosed is a compact disc that you may use for copying the medical records. Instructions for copying the medical records onto a compact disc are enclosed.
If you are unable to transfer the medical records onto a compact disc, we ask that you email the medical records to our medical records custodian, Alyssa Marcello, at amarcello@fishermalpracticelaw.com.
If the medical records cannot be sent via email, we ask that you send the records to us via the file-sharing website, www.Dropbox.com. Instructions for sending the medical records via www.Dropbox.com are enclosed.
The Law
Under the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), health care providers are required to provide every patient a copy of their electronic health records, in a format of their choice, at a reasonable cost.[1] Significantly, the HITECH Act preempts New York State law.[2]
The HITECH Act provides that the individual making the request for protected health information (“PHI”) can designate a third-party to receive the information,[3] i.e., an attorney. The enclosed HIPPA-compliant authorization designates the law firm of John H. Fisher, P.C. as the third-party who is authorized to receive the information. The HITECH Act also applies to personal representatives of the Estate of a deceased person.[4]
The individual is able to choose the method of production of PHI under the Act,[5] and the regulations state it can be in paper or electronic form.[6]
The personal health information 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 health records.[7] This can be a .PDF, compact disc, or as commented by the Department of Health & Human Services, via email if the individual is warned of the security risk associated with unencrypted email.[8]
Reasonable Cost-Based Fees
Under the HITECH Act, any fee that the covered entity may impose for providing an individual with a copy of electronic personal information shall not be greater than the entity’s labor costs in responding to the request for the copy.[9] The fees must be reasonable and cost-based.[10] What is reasonable and cost-based should be determined on a case-by-case basis.[11]
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; (3) postage if the individual has requested the information be mailed, and (4) if an individual has requested or agreed to an explanation or summary, the costs associated with preparing an explanation or summary of the PHI.[12]
Deadline for Responding
Aside from some exceptions,[13] a covered entity must act on the request no later than thirty (30) days from the receipt of the request[14] by: (1) providing the requested information,[15] or (2) providing the individual with written denial of the information.[16]
If you are unable to comply with the thirty (30) day deadline for providing the requested medical records, we ask that you contact us in writing before the deadline expires. In your letter, you must provide a written statement of the reasons for the delay and the date by which you will provide the medical records.[17] Under the HITECH Act, you are only provided one such extension of time.[18]
Penalties for Non-Compliance with the Act
There are substantial monetary fines and penalties for failing to comply with the HITECH Act. The Office of Civil Rights of the Department of Health and Human Services can investigate complaints and levy fines for violation of the Act.[19] If a healthcare provider is found to have “willfully neglected” a provision or provisions of the Act, the Office of Civil Rights of the Department of Health and Human Services will impose mandatory fines of up to $250,000 and up to $1.5 million for repeat or uncorrected violations.[20]
If you do not use electronic medical records, please contact our office within ten (10) business days of your receipt of this letter in order to make alternative arrangements for the production of the medical records.
Thank you in advance for your cooperation.
Very truly yours,
JOHN H. FISHER, P.C.
John H. Fisher
Enclosures
[1] C.F.R. section 164.524(a)(1)
[2] 45 C.F.R. section 160.203; 45 C.F.R. section 160.202
[3] 42 U.S.C. section 17935(e)(1)
[4] 45 C.F.R. section 164.502(g)(1),(2); 45 C.F.R. section 164.502(g)(4)
[5] 45 C.F.R. section 164.524(a)(1)
[6] 45 C.F.R. section 164.524(c)(4)(i-iv)
[7] 45 C.F.R. section 164.524(c)(2)(i); 42 U.S.C. section 17935(e)(1),(2)
[8] 78 Fed. Reg. 5636, at page 5634 (January 25, 2013)
[9] 42 U.S.C. section 17935(e)(2)
[10] 45 C.F.R. section 164.524(c)(4)
[11] 78 Fed. Reg. 5636 (January 25, 2013)
[12] 45 C.F.R. section 164.524(c)(4)(i-iv)
[13] 45 C.F.R. section 164.524(a)(2)(i-iv)
[14] 45 C.F.R. section 164.524(b)(2)(Ii)
[15] 45 C.F.R. section 164.524(b)(2)(i)(A)
[16] 45 C.F.R. section 164.524(b)(2)(i)(B)
[17] 45 C.F.R. section 164.524(b)(2)(ii); 42 U.S.C. section 17935(e)(1),(2)
[18] 45 C.F.R. section 164.524(b)(2)(ii); 42 U.S.C. section 17935(e)(1),(2)
[19] 42 U.S.C. section 1320d-5
[20] 42 U.S.C. section 1320d-5
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