In the past injured people had to pay nearly unlimited amounts of money to get their medical records when they wanted to make a claim for personal injuries. A series of federal laws, including HIPAA, attempted to make these costs more reasonable.
In 2016 the U.S. Deparment of Health and Human Services stepped in and ruled that since all medical records now must be kept as Electronic Medical Records (or EMR), the cost of copying those records became far less expensive for hospitals and health care facilities than it had been when all records were kept on paper. As a result, for the past few years injured people represented by lawyers that keep up on developments in the law, have been able to obtain their medical records for a reasonable price under the HITECH act. Our firm has been doing this since shortly after this determination by HHS.
Shortly after HHS released its position, confirming that patients could direct the records to their lawyers for the same fee, a medical records collection company called Ciox Health LLC challenged the U.S. Deparment of Health and Human Services decision. Why? Because as a collector of medical records from hospitals, Ciox was now losing money because HITECH limited the amount it could charge patients for their own records.
Recently, we've seen Oregon hospitals start rejecting our client's requests for their health records under HITECH because while they are personally requesting the records from the hospital, it is not being sent directly to them. These hospitals are citing the case of Ciox Health, LLC v. Azar, USDC For the District of Columbia, Case No. 18-cv-00040 (APM). We have now reviewed that case, and it does support the position that HITECH is no longer valid for third party (law firm) use, but does continue to be valid for patients themselves.
After the ruling, the U.S. Deparment of Health and Human did publish a notification on their web site which includes the following:
“On January 23, 2020, a federal court vacated the 'third party directive' within the individual right of access 'insofar as it expands the HITECH Act’s third-party directive beyond requests for a copy of an electronic health record with respect to [protected health information] of an individual…in an electronic format.' Additionally, the fee limitation set forth at 45 C.F.R. §164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.”
The rule now appears to be "Section [17935(e)] provides that any fee imposed by the covered entity [health care facility] for providing such an electronic copy shall not be greater than the entity’s labor costs in responding to the request for the copy.”
"Examples of covered labor activities contained in the 2016 Guidance include “[p]hotocopying paper PHI”; “[s]canning paper PHI into an electronic format”; converting from one electronic format to another; transferring electronic PHI from a covered entity’s system to an electronic delivery system or platform, like a web-based portal, portable media, or email; and creating or executing an email with responsive PHI. Id. at 12. The Guidance is equally precise in identifying what is not included in the Patient Rate. “[L]abor for copying does not include labor costs associated with: [r]eviewing the request for access,” and “[s]earching for, retrieving, and otherwise preparing the responsive information for copying.” Id. This latter excluded cost category covers “labor to locate the appropriate designated record sets about the individual, to review the records to identify the PHI that is responsive to the request and to ensure the information relates to the correct individual, and to segregate, collect, compile, and otherwise prepare the responsive information for copying.”
It is a loss for injured people, and a financial win for hospitals and other health care facilities. This raises an important distinction when choosing a law firm for a large personal injury case - will the law firm you choose be willing to front the costs to collect your medical records and other costs associated with making a personal injury claim? Some will and some will not. To find out more about how we would handle your personal injury case, call us for a free personal consultation at (503) 227-1233.
In the event you want to learn more about the legislation and orders pertaining to medical records costs, the link to the Ciox Health, LLC v. Azar decision is here.