“Patient Rate” From HiTech Record Requests Found Not Applicable To Lawyers
As a plaintiff’s personal injury lawyer, I try to run a modern and efficient law firm where paper copies are shunned in favor of the almighty PDF. Why should I pay for paper copies of my client’s medical records when I don’t want paper to begin with? All I am going to do with that paper is make it into PDF of it anyway. Paper copies cost firms both time and money.
If records requests are sent with a HIPAA form, medical providers can charge the state statutory records costs. If the requested records are voluminous, these copying charges may be quite costly. In Missouri the fees for HIPAA requests are governed by RSMO 191.227. The maximum fee providers can charge for paper copies is $26.06 plus $0.60 per page for the cost of labor and supplies. The maximum fees for electronic copies are $26.06 plus $0.60 per page, up to $114.17 total.
To save money, many personal injury law firms had been utilizing HITECH electronic records requests instead of traditional HIPAA requests. HITECH requests allowed a lawyer to obtain client medical records for as low as $6.50 for an electronic copy.
The HITECH Act was passed by Congress in 2009 to allow patients to request that a medical provider send a copy of their health information contained in an Electronic Health Record to a third party without that third party sending a HIPAA authorization. The benefit of using a HITECH request is realizing the significant savings of the so-called Patient Rate. The rate provided by HHS for a provider to put a patient’s medical records on a CD and mail it to the designated party was generally understood to be as low as $6.50.
In 2013, an Omnibus Rule was passed that broadened the definition of “third party directive” to include not just electronic records, but health information contained in any format. The Omnibus Rule also amended the costs recoverable by providers under the Patient Rate to include skilled technical staff time spent to create and copy the electronic file. Providers were able to charge for time spent putting protected health information on to media and distributing that media but could not charge labor costs associated with the retrieval of electronic information.
In 2016, the Department of Health and Human Services published more guidance that further expanded the Patient Rate to include an individual’s request to send records to a third party, regardless if submitted by the third party on the patient’s behalf. As a result, health care providers and medical record companies were no longer able to charge fees authorized by state law for those medical records requested by the patient to be provided to third parties such as lawyers.
A Georgia-based medical records provider recently challenged the practice of lawyer’s offices using HITECH requests to obtain records at the discounted patient rate. CIOX alleged that they were losing $10 million per year due to the changes made by HHS. In CIOX Health, LLC vs. Alex Azar, et al., No. 18-cv-0040 (D.D.C. 2020), the United States District Court addressed whether the “reasonable cost-based fee” or “Patient Rate”– applied to requests to send medical records to a third party such as lawyer.
The court found that “compelling discovery of patient health information to third parties regardless of the record’s format is arbitrary and capricious insofar as it goes beyond the statutory requirements set by Congress.”
After the ruling, HHS released a notice vacating the third-party directive. Until further notice, the patient rate fee limitation will only apply to an individual’s request for access to their own records. The rate will no longer apply to an individual’s request to send records to their lawyer.
Health care providers, and the businesses that subcontract to release information on their behalf, for the time being can now charge the higher fees authorized by RSMO 191.227 when fulfilling requests to third parties. This is unfortunate news for many personal injury lawyers who dreamed of obtaining low cost medical records.
Personal injury lawyers can only hope that the court overturns the recent CIOX ruling or that HHS delivers better guidance on this issue to prevent further findings of arbitrary and capriciousness.
In the meantime, the HITECH patient rate fee limitation is still good law if the client requests these records for their own use. If you know a client’s records may be voluminous, you should consider helping your client send a HITECH request to the provider. I would urge discretion when deciding which clients to use this method with, as not all clients are the right fit to follow up on this responsibility. Make sure that the request you provide for the client has the records being sent back to the patient’s address and not the law firm. This will require greater communication with the client but may be worth the savings in the end.