Proposed federal rule would improve patient access and cost for medical records

One of the challenges straight out of the gate in a medical malpractice case is getting a complete set of the medical records. I could write a whole series of articles on this topic, including very real hurdles like incomplete production of records and audit trails. Today, though, I’m going to focus to the federally-protected right of access.

I bet that most people don’t think of medical records as a profit center. The truth is, though, that selling copies of medical records to patients has historically been a very profitable business. So profitable, in fact, that in some cases patients might need a second mortgage to pay the fees demanded to get a copy of their own medical records.

The fees that doctors and hospitals to charge for production of medical records were largely dictated by state law. States, such as Texas, allowed healthcare providers to charge a per page fee that was indexed to inflation and, thus, increased every year.

When ordering records on behalf of our clients, Painter Law Firm would routinely receive single invoices of hundreds to thousands of dollars. Although we paid those expenses upfront, the direct cost was eventually paid out of the eventual recovery by our clients. I felt this was unjust to allow such profiteering over patients’ own healthcare information.

Then came along the 2009 Health Information Technology for Economic and Clinical Health Act (HITECH Act). The HITECH Act offered cash incentives for hospitals and other healthcare providers to migrate from handwritten paper medical records to electronic health records. The law also changed the Healthcare Insurance Portability and Accountability Act (HIPAA) right of access requirements to allow patients to obtain a copy of their medical records in electronic format if requested in exchange for a small flat fee of $6.50, or a reasonable fee to cover the cost of labor or fulfilling requests.

Needless to say, this legislation was cataclysmic and disruptive to the cash cow medical record industry. Overnight, the medical record industry went from being able to charge hundreds of thousands of dollars to basically $6.50—if patient and their attorneys knew the correct way to request the medical records.

Many hospitals have outsourced their medical records department to companies such as Ciox and ScanStat. They didn’t want to go down without a fight. In 2018, Ciox filed a lawsuit in federal court challenging the rules adopted by the U.S. Department of Health and Human Services (HHS) to implement the HITECH Act. As a result of the litigation, Ciox Health v. Azar, No. 18-CV-00040 (D.D.C. January 23, 2020) the court ruled that the capped reduced fee for access to medical records didn’t apply when the records were given to third-party rather than to the patient directly.

This led to another sea change, with healthcare providers and medical records vendors such as Ciox and ScanStat reverting to charging sky-high fees to attorneys for patients who request medical records on behalf of patients. This outcome seems nonsensical to me. If a law firm obtained medical records on behalf of its client, who was the patient, then the astronomical fees will apply. Those fees would get passed on to the client at the conclusion of the case. On the other hand, if the same patient obtained his or her own records and provided to the same attorney, the discounted fee applied.

The federal bureaucracy is slow-moving, but fortunately the HHS recently issued notice of a proposed corrective rulemaking notice. The new proposed rule would amend the permissible fee structure for responding to requests of the patient to direct records to third party. If enacted as proposed, the new rule will:

• Reduce the healthcare providers response time to produce records from 30 days to 15 days.

• Limit fees that healthcare provider may charge when a patient requests electronic medical records to be sent directly to an attorney or third-party.

• Eliminates fees when a patient uses a Healthcare Application to make a request for electronic medical records.

Based on our focus on medical negligence malpractice cases, the team at Painter Law Firm pays close attention to laws that affect our clients’ rights. If you’ve been seriously injured because of poor health care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer to discuss your potential case.

Robert Painter
Article by

Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.