Last year, the U.S. District Court for the District of Columbia issued an opinion vacating the “third-party directive” of the individual right of access under the Health Information Technology for Economic and Clinical Health (HITECH) Act. This decision places in doubt lawyers' ability to use HITECH to obtain personal injury clients' electronic medical records at a reduced cost, which is why we have changed our procedures to assist clients obtain their medical records themselves.
It used to be that obtaining your client's medical records following an auto collision could cost hundreds of dollars, which under the Rules of Professional Conduct, would necessarily be ultimately paid by your client, thereby lowering the net amount of their personal injury settlement. Now, under the HITECH Act, access to client medical records only costs around $10. We regularly advise our clients and potential clients of their right to obtain medical records at reasonable cost under the HITECH Act. The HITECH Act allows clients to obtain their own medical records on CD or DVD at low cost.
Traditionally, most lawyers have obtained their clients’ medical records by sending a request to the relevant medical provider with a HIPAA release. The provider would respond by printing out the records and sending the lawyer a bill for the statutory per page rate, plus shipping costs, sales tax, and any number of “administrative” fees. The result is that medical records of even moderate length often cost at least a couple hundred dollars.
But while HIPAA arguably authorizes medical providers to gouge attorneys, the HITECH Act guarantees clients a right to obtain electronic medical records from medical providers at a reasonable fee not to exceed the provider’s labor costs in responding to the request. There are a couple ways providers can calculate labor costs; they can use actual costs, average costs, or assess a flat rate. They also may add in some direct expenses, such as the cost of the CD onto which they load the records. Importantly, however, storage and administrative costs of maintaining medical records are not recoverable as labor costs. The result is that, as a practical matter, HITECH often allows clients to obtain their own records for under $10.
The HITECH Act gives individuals access to their own medical records. For that reason, any records request must be initiated by the client. We usually have clients sign HITECH letters that we've prepared that instruct the medical provider to send the records to directly to the client, and then submit the letters on their behalf.
A good HITECH letter should state in plain language in the subject that it is made pursuant to the HITECH Act. In most cases, the letter should request both a full and complete copy of all medical records and itemized billing records. Request that the records be certified, and that they be provided in .PDF on a CD or DVD. The letter also pre-authorizes a charge of any amount below $25, which simultaneously ensures prompt processing of accepted HITECH requests while hitting a pause button on responses billed using HIPAA rates. The letter must also be signed by the client.
Unfortunately, no matter how clearly the client labels a request as under the HITECH Act, some medical providers still ignore this fact and attempt to bill the client at their normal, high rates. In many cases, a short but firm email to the provider instructing them to send a revised invoice consistent with the HITECH Act will get the job done. But other times a bit more back-and-forth is required.
Providers might sometimes try to exclude particular records or services from the request. For example, a provider may fail to include, or separately charge for, imaging films. But such films fall within the definition of “electronic health record” contained within the Act, because they are electronic records “created, gathered, managed, and consulted by authorized health care clinicians and staff.” If providers refuse to scan records that are in paper copy only, we will direct them to HHS’ website, which states that individuals are entitled to materials that can be readily scanned.
Relying on clear, short, and simple emails to the provider will usually resolve the issue, without wasting too much time. When a provider simply refuses to be reasoned with, we suggest it run the correspondence chain by its general counsel. And if that fails, we will file a complaint online with the Department of Health & Human Services' Office of Civil Rights.
Sending HITECH letters is a useful, often-painless tool to decrease the cost of bringing a personal injury action, but there are procedures that need to be followed. If you or a friend, family member, neighbor, or co-worker has been injured in an auto collision and have questions about using the HITECH Act to access their medical records, give us a call at 253.858.5434 to see how we can help.