Please note that this is an informational blog. I accept no professional responsibility for this blog, and it is not intended to be a treatise on this subject matter. A person with an injury claim should consult my firm or another attorney about their personal injury matter.
In the pursuit of a personal injury claim, it is generally very important for claimants to have access to their own health care records. The absence of health care records can make it very hard for people to document their injuries and symptoms. However, obtaining proper documentation can be time-consuming, difficult and expensive if you don't know the law.
For many years, it could be very expensive for personal injury claimants to receive their own medical records. Certain individuals with extensive medical histories can have large volumes of records from a medical clinic, and the costs of ordering hard copies of records from one clinic could sometimes be in excess of $1,000! In some cases, the costs of obtaining records would not justify the pursuit of a case.
Here's what you need to know so you don't pay more than you should for your own health care records.
The heath care records world changed significantly with the passage of The Health Information Technology for Economic and Clinical Health Act (HITECH Act) which is part of the American Recovery and Investment Act of 2009 (ARRA). The HITECH Act was created to motivate the implementation of electronic records (HER) and supporting technology in the United States. The HITECH law amends HIPPA (the Health Insurance Portability and Accountability Act of 1996). Here are some highlights of the law:
Patients can obtain electronic records.
Under the HITECH law: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in electronic format,” 42 USC &17935(e)(1), and that a health care provider is allowed to bill “only the cost of… copying, including the costs of supplies for labor and copying,” 45 CFR 164.524(c)(4)(i).
If the patient uses the correct request form, the HITECH request process should start on the right track.
Electronic records are not expensive.
Under the HITECH law, a provider should only charge a patient $6.50 per request, unless the provider wants to go through the process of calculating their actual labor costs to fulfill the request.
Many providers still believe that they can charge large copy and retrieval fees that are frequently allowed under state laws. However, the HITECH law is a federal law that applies to the costs of a request for electronic records. Certain providers must be reminded of this difference between state law and this federal law. State law should only be superior to the HITECH law if a state law provides a patient greater rights and protections.
The HITECH law applies to health care providers and records retrieval services.
One problem that I see in my law practice is some that some health care still providers do not believe that the HITECH law applies to their clinic. The HITECH law applies to “covered entities” under the HIPPA Privacy rule, which generally include health care providers, health plans, and health care clearinghouses. If one is acting as a licensed health care provider, it is highly likely that this provider is a “covered entity” under HITECH. The HITECH law also applies to business associates, which are people or entities that conduct work on behalf of covered entities.
Patients can allow a third party to receive their records.
Some providers do not believe that the law allows patients to designate that a third party receives their records. This is not accurate. The HITECH law allows an individual to designate any third party or “personal representative” to receive the patient's records.
If a provider does not maintain electronic records, the provider still has obligations to work with the patient in his or her request under the HITECH law.
Some providers contend that because they do not maintain electronic records, they will only provide paper copies to a patient and try to charge the patient the excessive paper records fee rate. The covered entity is required to provide the individual with an electronic copy if it is readily producible electronically (e.g., the covered entity can readily scan the paper records into an electronic format) and in the electronic format requested if readily producible in that format, or if not, in a readable alternative electronic format or hard copy format as agreed to by the covered entity and the individual.
As a practical matter, the law basically requires a provider to work reasonably with the patient in his or her request. Various formats have been acceptable for my clients. If a provider has access to a scanner or something similar, it should not be a problem for them to produce electronic records.
If the HITECH request is denied, the requestor may file a complaint with the US Department of Health and Human Services. If found to be in violation, the health care provider may have to pay fines and fees.
The HITECH records request often takes some education. Most providers are usually flexible once they learn about this law. However, it is going to take continued education and follow through for full HITECH law compliance in this era. The days of providers trying to charge patients exorbitant fees for their own health care records should be over.
For more information on this topic, a good resource is this FAQ on the US Department of Health and Human Services website.