HITECH: A Practical Guide To Requesting Your Clients’ Medical Records
If your area of practice involves requesting your clients’ medical records, you are already aware of just how time-consuming and expensive this process can be. While your fee agreement may clearly explain that the client is responsible for all costs associated with pursuing their case - including the cost of obtaining medical records - the reality is that these costs are typically only recovered when you obtain a successful outcome for your client. When you are unable to obtain a successful outcome for your client, it is difficult to ask the client to fork over what may be a few hundred dollars for the cost of requesting their medical records. Often the cost of obtaining client medical records is something that you, as an attorney or a law firm, have to consider a loss the moment you submit the request. Ultimately, you may end up spending thousands of dollars each year obtaining clients’ medical records and never recouping those costs.
Enter the Health Information Technology for Economic and Clinical Health Act, commonly referred to as HITECH. HITECH was signed into law in 2009. One of its purposes was to encourage the use of electronic medical records among hospitals and other medical providers.
Here’s how HITECH benefits you: Under HITECH, all medical providers who maintain electronic medical records must provide them to the patient/client at the actual cost of reproduction. This means that instead of paying, for example, $40 plus 10 cents a page for a doctor's’ treatment notes, you can get them for the cost of burning them onto a CD or copying them to a flash drive. This cost is usually only a few dollars, versus what may end up being more than $100 for paper copies of the medical records.
The parameters of HITECH are outlined in the January 2013 Federal Register, but here is a breakdown of most important information:
HITECH pertains to all medical providers who maintain electronic records. HITECH also pertains to third-party copying services used by medical providers. HITECH does not require that medical providers who maintain paper copies provide them in an electronic format, so you may still find yourself with charges for paper copies in some instances. HITECH exempts psychotherapy records, so even if those records are maintained in an electronic format, they do not necessarily have to be provided at actual cost of reproduction.
When a request for medical records is submitted to a provider pursuant to HITECH, a medical provider has 30 days to provide the complete medical records. If the medical provider fails to do so, they may be subject to formal complaint with the Department of Health and Human Services and hefty fines between $50,000 and $1.5 million. While it’s always beneficial to maintain positive working relationships with those providers from whom you frequently request medical records, you may get some push-back here. If providers are not providing the records that you have requested in a timely fashion, consider sending your request by certified mail with a return receipt or by both postal mail and email.
The federal regulations provide a little clarity here. The medical provider may impose a “reasonable, cost-based fee….” The fee may include only the cost of the labor of copying, whether in paper or electronic form, supplies for creating the paper or electronic media, postage when the client requests that the records be mailed, and labor for preparing an explanation or summary of the records, if agreed to by the client. See 45 C.F.R. § 164.524(c)(4).
This is the kicker and the most important part. You must use specific language in making a request for medical records pursuant to HITECH. Clearly explain that you only want electronic records in an electronic format and that you do not want paper copies or to be billed for paper copies. Of course, if the records are only in paper format, HITECH does not apply.
The request MUST come from the client, not from the attorney. The request should not be on your firm’s letterhead. The request must be signed by the client/patient, NOT the attorney. The request must also clearly state the name and address of your firm as the designated person or entity to receive the medical records. It may be helpful to include a copy of the HITECH Act with your request.
Because the HITECH Act is only recently being used by attorneys, in some instances a medical provider may be seeing a HITECH request for the first time. If you are not getting the information that you need in the prescribed timeframe, you may need to escalate your request to management or even the legal department of the medical provider or copying company.
Other Important Tips.
N.C.G.S. § 90-411 allows for a medical provider to charge a reasonable fee for the costs incurred in searching, handling, copying and mailing medical records to the patient or the patient’s designated representative (that’s you!). The costs are charged as follows: $10 minimum; $.75 per page for the first 25 pages; $.50 per page for pages 26 through 100, and $.25 per page for each page in excess of 100. If you’re counting, that means $18.75 for the first 25 pages and $37.00 for pages 26-100. You can see how costly it could get to request records from a primary care provider that your client has been using for years and visits frequently.
Here’s where you get to show off what a constitutional law scholar you really are. Remember that little thing called the Supremacy Clause? Federal laws, like HITECH, take precedence over state laws, like G.S. § 90-411. Medical providers in North Carolina have been using G.S. § 90-411 for years; a gentle reminder that HITECH is a federal law, and therefore preempts G.S. § 90-411 may be needed.
How does HIPAA play into all this? Medical record providers typically require a HIPAA authorization from the patient/client in order to provide medical records to a third party. But because a HITECH request is made by the patient/client, rather than the third party (you or your firm), a HIPAA authorization is not required.
And for the grand finale, here’s a HITECH request template that you can format for your own use.
John Q. Client
111 North Main Street
Zebulon, NC 27597
Community Doctors Office
234 Wellness Lane
Raleigh, NC 27604
March 3, 2017
Re: HITECH RECORDS REQUEST
Dear Records Custodian:
I am a patient of Dr. Jones. My date of birth is January 1, 1955. I request copies of any and all of my medical records in your possession. Please provide the records in electronic format only, preferably in an Adobe Acrobat PDF or TIF format.
Please send the electronic records to my legal representative:
Larry R. Lawyer
555 Justice Court
Durham, NC 27707
I FURTHER AUTHORIZE YOU AND YOUR VENDOR, IF APPLICABLE, TO COMMUNICATE DIRECTLY WITH LARRY R. LAWYER AND ANYONE FROM THE LAWYER’S OFFICE REGARDING ALL ISSUES RELATED TO THIS REQUEST, INCLUDING AUTHORIZATION OF THE COST-BASED CHARGES AND THE TIME FRAME FOR PROVIDING THE RECORDS TO HIS OFFICE.
CONSISTENT WITH 42 U.S.C. § 17935(e)(2) ANY FEE SHALL NOT BE GREATER THAN THE LABOR COSTS.
Relevant Statutory Language
42 U.S.C. § 17935(e) – HITECH Act – Access to health information in electronic format
(e)Access to certain information in electronic format
In applying section 164.524 of title 45, Code of Federal Regulations, in the case that a covered entity uses or maintains an electronic health record with respect to protected health information of an individual—
(1) the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific;
(2) if the individual makes a request to a business associate for access to, or a copy of, protected health information about the individual, or if an individual makes a request to a business associate to grant such access to, or transmit such copy directly to, a person or entity designated by the individual, a business associate may provide the individual with such access or copy, which may be in an electronic form, or grant or transmit such access or copy to such person or entity designated by the individual; and
(3) notwithstanding paragraph (c)(4) of such section, any fee that the covered entity may impose for providing such individual with a copy of such information (or a summary or explanation of such information) if such copy (or summary or explanation) is in an electronic form shall not be greater than the entity’s labor costs in responding to the request for the copy (or summary or explanation).
Jared Pierce hung his own shingle right out of law school and has spent every minute since then discovering the joys and difficulties of chasing success.