Hardly a day goes by without a letter from my office either requesting medical records or paying for them. Some days, I sign more than a dozen. It’s perhaps the most common thread among all my cases: the vast majority of my clients have been physically injured in one way or another, and at a bare minimum, I need the records from their doctors and hospitals to show the diagnoses they have and the treatment they have received.
Every patient has a right to receive their medical records, and by law should be able to obtain those records promptly at no markup, with no padded fees, and no unnecessary charges from the hospital or the records company. But if there’s money to be made, someone will try to make it, and over the past decade a whole cottage industry has developed around the “business” of trying to cheat patients trying to get their medical records. Sometimes health care providers outsource this “business” to third-party companies, and sometimes the hospitals and health systems play the con game themselves.
Federal law is quite clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care provider is allowed to bill “only the cost of … [c]opying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the the Health Information Technology for Economic and Clinical Health Act (HITECH Act).
Simple, right? If a hospital wanted to do the right thing, then whenever a patient requested records, the hospital would send them a CD in the mail and a modest bill, one that would typically be under $50 and would never exceed $100. But there’s no money to be made in charging “only the cost” of copying electronic records to a CD, so a number of these entities have a policy that, if a patient requests their records, then the hospital bills the maximum it possibly could.
To bill the maximum, the hospital always assumes, even if the patient requests otherwise, that the patient wants paper copies, literally nothing more than the hospital printing a copy of what it has on the computer. That’s because the HITECH Act doesn’t cover the cost of paper copies, state law does, and the lobbying groups for doctors and hospitals have a lot more influence in the State Departments of Health when it comes to allowing scams that fly under the radar. In Pennsylvania, for example, printed copies of medical records can go for up to $1.44 per page. In New York, it’s $0.75 per page. In Texas, $30 for your first 10 pages, then $1 per page and a graduated scale after that. And on and on. (Edit: I forgot to link to Tom Lamb’s state-by-state summary.)
If an attorney requests these records, and specifically points out that only an electronic copy was requested and that the charges for paper copies are illegal, the hospital often tries to pull another trick, claiming that the HITECH Act’s medical records billing limits apply only to requests directly from the patient that are going straight to the patient, and so they don’t apply to us, even though we’re requesting them for the patient, at the patient’s request. This trick is, of course, also morally and legally wrong: as the Department of Health and Human Services made clear, “The final rule adopts the proposed amendment Sec. 164.524(c)(3) to expressly provide that, if requested by an individual, a covered entity must transmit the copy of protected health information directly to another person designated by the individual.” Federal Register January 25, 2013 Vol 78 No. 17, Page 5634.
Despite the clarity of the law, we still spend an enormous amount of time trying to pry our clients’ records out of these hospitals’ greedy little hands.
Earlier this month, for example, while getting records for a birth injury case, I first got the run-around. The health system sent me a certification from one of their locations that they had no records on the child even though I had specifically requested records from a different location, where the child had been hospitalized in the NICU for several weeks. They blamed my firm for the mistake (as if we couldn’t read our own letter requesting the records from the correct location), and then, a week later, I received a bill from an outside medical records processing company: 2,588 pages at a cost of $1,004.34.
I went ballistic. A week later, the bill was $24.97, and I could download the full records immediately.
This isn’t about saving my firm a buck; even if we paid the entire cost upfront, the cost of these records is reimbursed from the settlement (that’s true whether the attorney’s fee is calculated before costs or after costs). It’s about stopping this cottage industry of records-cost-padding from getting bigger, and maybe even rolling back the tide.
Below is a sample letter to use in your requests. If they don’t follow the law after receiving such a letter, file a complaint with the Department of Health & Human Services’ Office of Civil Rights for Health Information Privacy.
Enough is enough. These companies cannot prey upon our clients.
I represent the above-named patient of yours, and as shown by the enclosed authorization, they have authorized you to produce their medical records to me. Pursuant to the HITECH Act, 42 U.S.C.A. §17935(e)(1), and its implementing regulations, 45 CFR 164.524(c)(4)(i), we are requesting, in an electronic format only, a complete copy of the patient’s medical records from [insert date] to [insert date]. Please be aware that the HITECH Act applies to requests by third-parties, like our law firm, just the same as it applies to requests by patients: “if requested by an individual, a covered entity must transmit the copy of protected health information directly to another person designated by the individual.” Federal Register January 25, 2013 Vol 78 No. 17, Page 5634.
The records should include, if applicable, their Hospital admission face sheet; Discharge summary; Admission history and physical; Progress notes; Orders; Consultation; Radiology reports; Lab values; Graphic vital signs; Anesthesia record; Operative reports and notes; Pathology reports; Recovery room; Nurses notes; Medication records; Outpatient records; Emergency room records; Special diagnostic tests; and Fetal strips.
We are not requesting paper copies. Do not bill us for paper copies. The HITECH Act and its regulations do not allow you to bill for paper copies when an electronic copy has been requested. I will not hesitate to file a complaint with the Department of Health & Human Services (HHS) if you violate the law by improperly applying the paper copies rate for electronic records.
If any of the above records are available only as paper copies, and have never been made into an electronic format, please identify the record and provide the cost of copying.
Please fax, email, or call us with the amount you intend to charge before sending the records. If you send us a bill for paper copies of electronic records, you should expect that we will file a complaint with HHS. If you follow the HITECH Act, we will pay our bill promptly.
Update, February 15, 2016.
I wrote this post almost two years ago, and it’s been needing an update. In that time, DHHS OCR has sometimes declined enforcement on the basis that the request came from law firms. To my knowledge there’s still no case law nor any changes in the regulation, and in my humble opinion it’s just plain wrong as a matter of the statutes and the regulations, but so it goes, and it’s often not worth the battle.
For what it’s worth, fighting the good fight did end up causing the providers I deal with the most — e.g., the hospitals around me — to give up fighting me on it, and now they routinely charge me only the HITECH rate.
Easiest way to avoid any issues it is to create a letter for your client and to give them an addressed and stamped envelope to the provider to just sign and send off:
[provider’s name and address]
Dear Records Custodian:I am a patient of [provider’s name]. My birth date is [patient’s birth date]. I request copies of any and all of my medical records in an electronic form only. Such records include, but are not limited to, admission records, history and physical notes, operative notes, discharge summaries, nurses notes, radiological films, billing records, and outside records. Please provide the records in electronic form on CD in the Adobe Acrobat PDF format, and send them to:[attorney’s name and address]
SIGNED: [patient’s name]
That method should work, and has worked for me, but, if you want to be doubly-safe, then have the request go back to your client and also give your client an addressed and stamped priority envelope back to yourself for the records once they get them.