CHICAGOLAWBULLETIN.COM WEDNESDAY, AUGUST 1, 2018 Volume 164, No. 149 Serving Chicago’s legal community for 163 years Medical records request should cost no more than $6.50 under HITECH etting medical records can be time- consuming and ex- pensive for everyone. But few lawyers (and fewer medical providers) know that federal law now limits how much a provider can charge for records. And, in nearly every case, it is $6.50. produce the records in electronic format. Is it really only $6.50? HITECH grants the secretary of Health and Human Services the authority to adopt the stan- dards and data elements for HITECH. HHS authorizes providers to determine the cost of the records in one of three HITECH requires. That means a patient can request the records and ask that they be sent to his or her lawyer. Components of a request Many medical providers are hesitant to comply with HITECH or try to get around the low costs through various tactics. To avoid this, it is important to properly for- In 1996, the Health Insurance Portability and Accountability Act, commonly known as HIPAA, required that medical providers could only charge the actual cost of copying the records and responding to the request, but no other fees. Still, HIPAA left a loophole. That law allowed the medical provider to charge for paper copies even if the records were already in its system electronically. What is HITECH? In 2009, HIPAA was amended when the Health Information Technology for Economic and Clinical Health (or HITECH) Act was enacted (42 U.S.C. §§300jj et seq.; §§17901 et seq.). The pur- pose of HITECH is to strengthen the provisions in HIPAA by tai- loring them to the advancement of technology. The HITECH Act allows indi- viduals to access their health records in an electronic format ways: • The provider can calculate the actual cost of labor in pro- ducing the records. • The provider can average the cost of labor in producing the records. • The provider can charge a flat rate of $6.50 (including postage and delivery). To use one of the first two methods, the provider must sup- ply actual data to support the cost. It also needs to know an ap- proximate cost to show the pa- tient up front. Then, for example, the amount of time spent on a records re- quest by an employee would have to be documented, presented to the requester and then ap- proved. Even using the average cost method, the provider is re- quired to produce evidence of how they came up with the charge. G. Grant Dixon III is the founder of Dixon Law Office, based in west suburban LaGrange. He can be reached via the firm’s website at attorneysmakingitright.com. Who can get the records? The HITECH Act states, “the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the indi- vidual chooses, to direct the cov- ered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous and specific.” This provision grants the indi- vidual the right to obtain his or her medical records in an elec- tronic format. Federal courts have required that the records request must directly come from the patient to be subject to low costs. mat a HITECH records request. HITECH only applies if the pa- tient asks for his or her records directly. Make sure the letter re- questing the records is signed only by the patient. While not prohibited, the best practice is to put the request in a separate let- ter, not firm letterhead. The request should clearly identify the person requesting the records and to whom the records are sent (Federal Regis- ter, Vol. 78, No. 17, Jan. 25, 2013, p. 5634). It is perfectly accept- able if a patient requests records to be sent to her lawyer instead of her personally. The most important compo- nent of the request is that it must clearly state that the records are requested in an elec- tronic format. Best practice is to add a statement that paper copies are not requested. While the HITECH Act re- quires nothing more, a request- for a low cost. Under HITECH, a health-care provider can charge a patient only for responding to the request for an electronic copy of their health records if re- quested in electronic form. This closed the loophole in HIPAA and disallows copying or re- Under HITECH, a health-care provider can charge a patient only for responding to the request for an electronic copy of their health records if requested in electronic form. ing party can add items such as the following: • Request for the flat fee of $6.50. • Advise the provider they have 30 days to respond. • An e-mail or online service where the records can be sent. trieval fees. HITECH requires medical providers to produce records in an electronic format if the pa- tient requests them that way. If the records are not already maintained electronically, the provider must scan the records into an electronic format agreed upon between the parties. Providers have 30 days to These extra steps are com- pletely avoided if the provider charges the flat $6.50 fee. The onerous documentation require- ment makes it almost impossible for a provider to charge more than $6.50 because most providers either will not have this data readily available or will not want to document these steps. Lawyers acting on behalf of their clients are not protected under HITECH. (See Webb v. Smart Document Solutions LLC, 499 F.3d 1078, 1080 (9th Cir. 2007)). However, the act explicitly states that the patient can direct the records to be sent to a third party. The third party is still pro- tected under the low costs A request that includes these specifics is fully compliant with the HITECH Act. What about Illinois copy charges? Illinois sets a copy charge based on paper copies of records (735 ILCS 5/8-2006). However, the HITECH Act is federal law, so it supersedes the Illinois charges. The difference can be signifi- cant. Take, for instance, a 1,000- page medical record. Under the Illinois Copy Charge Statute, it would cost $1.05 per page for the first 25 pages, 70 cents for pages 26-50, 35 cents per page for the remaining 950 pages, plus a $27.91 handling fee, for a total cost of $404.16. Under the HITECH Act, the total charges for those same records, electronically produced would be $6.50, a savings of $398.66. What if they refuse? A provider who is reluctant to comply with the HITECH Act will cite one of four reasons. First, the provider might claim they cannot produce the records in 30 days. However, the HITECH Act is explicit, not per- missive on the 30-day rule. Fail- ure to produce records in this time subjects the provider to penalties of up to $1.5 million (42 U.S.C. §1320d-5(a)). Second, the provider might re- sist because the letter comes from the lawyer. So long as the patient is making the request (see above), the fact that the lawyer is sending in the request or the records are going to the lawyer is not a valid objection to a HITECH records request. Third, some providers claim they do not maintain electronic records and so they are exempt from HITECH. Almost invari- ably, this is untrue. By 2015, 87 percent of office-based physi- cians in Illinois and 96 percent of all hospitals had implemented certified technology systems in their practice. Furthermore, to receive Medicare or Medicaid reim- bursements, the provider must maintain electronic records (123 Stat. 115 Sec. 2, Div. A, Title IV). Most private insurance compa- nies have similar requirements. Unless the provider refuses all insurance, including Medicare, they have electronic records and must comply with HITECH. Fourth and finally, providers may also refuse to deliver the records electronically. This is an attempt to avoid the limited fees under HITECH. If the patient’s request asks for electronic records, the provider must com- ply (45 C.F.R. 164.524(c)(2)(ii)). The patient can demand that the records be e-mailed, and if the provider wants to deliver the records on a DVD, the patient cannot be asked to pay additional charges. The HITECH Act is enforced by the secretary of Health and Human Services. If the provider fails to comply, the patient (or her lawyer) can file a complaint with HHS on their website. Actual, average labor costs? HITECH does allow a provider to charge for the actual cost or average labor costs to produce the records. If the provider chooses to use the actual-cost method to deter- mine the fee, it must inform the patient before production, pro- vide the approximate fee and then follow up with its calculated fee. The calculated fee would in- clude the time it takes for its em- ployee to send the copy in an electronic form, multiplied by the reasonable hourly rate of the person copying and sending it. The hourly rate must be rea- sonable for that level of skill needed to create and transmit the copy in the manner request- ed. If the provider has calculated reasonable actual costs for previ- ous requests, it can charge an av- erage cost based on those requests. Fees above $6.50 are presump- tively unreasonable. The reality is that an administrative employ- ee for a health-care provider clicks through a few screens on a computer and in mere minutes, records can be e-mailed or faxed to a patient, no matter the num- ber of “pages” the document con- tains. In most cases, the actual cost calculation of labor should be less than $6.50. Make sure to push back against calculations that seem questionable. In the electronic age, medical records are kept electronically. The HITECH Act recognizes that producing electronic records is faster and easier. The patient should not have to pay for paper copies if they want electronic records. Following a few simple guide- lines will ensure pat