The HIPAA law is a detailed regulatory framework that controls many aspects of the creation of medical records, maintenance of medical records, protection of a patient’s privacy and access to medical records. Prior to January 2020, personal injury lawyers would frequently request medical records on behalf of their clients by obtaining a signed HIPAA compliant medical authorization that permitted the lawyer to obtain the client’s medical records. However, in January 2020, a federal district court changed those rules, thereby making it more difficult for patients to obtain their medical records.
The HIPAA law includes a fee restriction that requires hospitals and other users of electronic medical records to make the patient’s records available either through an electronic portal online or in an electronic format, such as a thumb drive or CD-ROM. Prior to January 2020, this fee restriction extended to the patient’s lawyer, who was obtaining the records on behalf of the patient. However, in January 2020, a federal court held that the HIPAA fee restriction only applies to the patient. If a lawyer is involved in any part of the process of obtaining the medical record, the hospital has the right to charge an unrestricted fee. In order to take advantage of this provision, hospitals routinely outsourced the process of fulfilling lawyers’ requests for medical records to private for-profit independent contractors, such as CIOX Health and MRO Corp.
These independent contractors, which are not bound by HIPAA’s fee restriction provisions, charged per-page fees, along with service fees, thus driving the cost of medical records to outrageous amounts. In personal injury and medical malpractice litigation, medical records must be obtained in order to document not only all of the client’s injuries but also their pre-existing conditions and full medical history. In many instances, the medical records may be thousands of pages in length. Lawyers in need of obtaining these records to defend their clients can be forced to pay thousands of dollars just to view the records.
Based on these changes, personal injury law firms began requesting that their clients obtain the medical records on their own behalf in order to take advantage of HIPAA fee restriction provisions. Last summer, however, the CURES Act was enacted. It seeks to alleviate the unfair charges sought by independent contractors against lawyers who request records on behalf of their client. However, these independent contractors continue to fight this battle, arguing that the fee restrictions pertain to access to the electronic record but not the content. Further clarification from the federal government is required in order to restore rational billing practices for patient’s medical records.
Personal injury law firms, including those law firms that handle medical negligence, product liability and wrongful death lawsuits, face other challenges in obtaining their clients medical records. For example, the federal Office of Civil Rights (OAC), which regulates HIPAA infractions by hospitals and other health care providers, recently announced a settlement with the University of Cincinnati Medical Center in Ohio based on its failure to respond to a patient’s lawful request for her medical records. The HIPAA law requires a hospital to not only provide records consistent with the fee restrictions contained in that statute, but also in a timely fashion. All too often, hospitals’ medical records departments lose medical records requests or fail to provide all of the requested records. However, the OAC’s Right of Access Initiative has been focused on improving patients’ access to their medical records. Hopefully, the settlement reached between the OAC and the University of Cincinnati will bring awareness to hospitals that neglect to provide patients with their medical records when lawfully requested in a timely and inexpensive manner.