Whether representing hundreds of clients in a mass tort, or a single client in a personal injury case, medical records are an integral piece of the puzzle. How many times have you received an invoice for medical records and been shocked by the cost? These invoices often include charges for per page copies, search and postage fees and other facility charges. You simply pay these invoices and consider it a necessary expense as your case is often dependent on documenting an injury, course of treatment or surgical outcome. However, under the HITECH Act, this necessary expense can be drastically reduced and we can save not only our clients, but our firms, a significant amount of money.

What Is the HITECH Act?

The Health Information Technology for Economic and Clinical Health Act (HITECH) was enacted under the American Recovery and Reinvestment Act of 2009. HITECH is enforced by the Department of Health and Human Services—Office of Civil Rights and was implemented as an amendment to HIPPA. Although it was created to aid in the implementation of electronic health records, some of its key provisions have not been widely utilized. Not surprisingly, hospitals, health care providers and medical record companies are not rushing to inform patients that they can obtain their medical records for a fraction of what they may otherwise be charged. There are also many health care providers who are still unaware of HITECH's provisions regarding patient requested medical records. Since the Office of Civil Rights recently provided an FAQ to clarify some of HITECH's provisions, the legislation and its potential benefits have been receiving increased attention.

There is no question that patients are entitled to their medical records. Yet, for years that entitlement has been preceded by a large invoice which effectively prevented some patients from obtaining their records. HITECH has given patients a mechanism to remove that roadblock and quickly and cost efficiently obtain their medical records. It is critical to understand and utilize HITECH's provisions when obtaining medical records to provide our clients with the full benefits available to them.

Requirements Under HITECH

HITECH applies to all facilities/providers (called covered entities) who maintain electronic medical records. Under 42 U.S.C. Section 17935 (e), if a covered entity uses or maintains an electronic health record with respect to protected health information (PHI) of an individual:

• The individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered 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.

Under HITECH, a client may request that the covered entity provide records directly to his attorney. The client's request must be in writing, signed by the client and clearly identify the designated person where the PHI should be sent. See 45 C.F.R. Section 164.524(c)(3)(ii). This must be a patient request and should specify (and possibly note it repeatedly) that the patient is requesting electronic records pursuant to HITECH and not paper copies. If the request does not specify that electronic records are being requested, paper copies and a corresponding larger bill will be provided. The request also needs to clearly indicate the attorney/law firm where the records should be sent and must be dated and signed by the patient/client. This request should not require an accompanying HIPPA as it is coming directly from the patient.

It is also important to note that the request cannot be denied under HITECH simply because it was mailed from an attorney/law firm. If the request is coming from the patient (i.e., directly or forwarded by a third party on behalf of and at the direction of the patient), HITECH is applicable.

How Much Can I Save Under HITECH?

Under HITECH, the fee cannot be greater than the entity's costs in responding to the request, see 45 C.F.R Section 164.524(c)(4). This limits the costs to the actual labor for copying the PHI requested in an electronic format, the actual cost of supplies (i.e., a CD or USB drive) and postage. The invoice cannot include costs such as verification, storage fees or searching for/retrieving the medical records even if such costs are authorized by the applicable state law. Although HITECH allows charges by the covered entity for labor, supplies and postage, it does not include costs incurred by other agents such as a copy service. To the contrary, the covered entity is responsible for any cost of outsourcing their medical records to a business associate. Although HITECH provides a limit on the fees charged, the Office of Civil Rights notes that covered entities should endeavor to provide the patient a copy of their PHI free of charge.

An Example of HITECH Savings

My practice includes handling mass tort cases, so in any particular litigation we often represent hundreds of individual clients. For example, in our Proton Pump Inhibitor cases (medications to reduce stomach acid which have been linked to an increased risk of kidney disease), medical records obtained prior to using HITECH may cost close to, or exceed, $1,000 per client. However, under HITECH we have consistently received bills under $25 per provider for hundreds of pages of records. This is a great savings for our clients but the benefits don't end there. As we all know, sometimes after a medical record review is complete it turns out a client may not have a viable case. In those instances, your firm is absorbing far lower costs under HITECH than previously seen. HITECH provides a benefit not only to our clients but also to our firms by dramatically reducing the cost of medical records.

30-Day Requirement

Another benefit of HITECH is that the records must be provided within 30 days after receipt of the request. If the request cannot be fulfilled within 30 days, the covered entity may extend the time by no more than 30 days but they must provide a written statement indicating the reason for the delay and a date by which the request will be completed. See 45 C.F.R. Section 164.524(b)(2). In fact, the 30-day requirement is considered an “outer limit” and HITECH encourages covered entities to provide the medical records as soon as possible.

Enforcement of HITECH

Failure to abide by the requirements of HITECH can result in hefty penalties and fines. Although you can easily file a complaint for failure to abide by HITECH, informing the covered entity of their HITECH responsibilities and notifying them that a complaint can be filed with the Office of Civil Rights is usually sufficient to get the medical records in a timely and cost-efficient manner. It is also important to note that since a copy service is a business associate of the covered entity, they are also subject to fines for noncompliance.

Update Your Medical Record Procedure

The saying “change is good” is certainly applicable in this situation. When our firm began utilizing HITECH it required taking a fresh look at our medical record procedures, training our staff, educating covered entities as to their responsibilities and implementing new processes. However, the benefits of change are evident every time we save our clients' money by drastically reducing their costs. Firms should not pass up the opportunity to put more money in their clients' pockets while also obtaining medical records quickly and efficiently through HITECH.

Shayna T. Slater, a partner at Anapol Weiss, concentrates her practice on mass tort, products liability and other civil litigation. Her practice involves both pharmaceutical and medical device mass tort litigation. Contact her at [email protected].