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The HITECH Act – a useful tool for patients and attorneys to get medical records electronically and (usually) cheaper

YOU HAVE A RIGHT TO AFFORDABLE ELECTRONIC MEDICAL RECORDS IN GEORGIA UNDER THE HITECH ACT

One of the first steps you should take if you believe you are a personal injury victim is get a full copy of your medical records from your healthcare providers. Sometimes, a doctor will give you your records for free. However, in my experience many doctors’ offices and hospitals will attempt to charge you hundreds, maybe thousands of dollars for your medical records. This can make getting your medical records difficult or costly, especially when dealing with lengthy hospital stays or multiple surgeries at the same facility. Traditionally disability attorneys, workers compensation attorneys, and personal injury attorneys spend thousands of dollars each year obtaining the medical records of their clients using regular HIPAA authorizations.

Luckily, a law called the “HITECH Act” (42 USC § 17935(e)) recognizes this financial burden on patients and gives a cost-effective way for patients to obtain their medical records. The law says that patients shall have a right to get their records in an electronic format, which can be done by a secure e-mail, on a thumb drive, or on a CD/DVD. Basically, under the HITECH Act the doctors’ office or medical practice can only charge the actual labor costs in producing the medical records and cannot charge a per page fee.

Many hospitals and doctors’ offices are unacquainted with this law, so they may try to refuse to produce your medical records under the HITECH rates initially. Others might know about it, but hope that by refusing your request that you will just pay the per page fees. If the provider has ever kept the records in an electronic format, then they must give them to you electronically if so requested under the HITECH Act. However, this does not apply to facilities that do not use electronic medical records and only use paper records and are not able to scan or convert the medical records into electronic format - they can only give you paper copies of your records and can charge per page under state law.

You can see Georgia’s law on per page medical record charges here. Below is a Hitech Act Medical Records sample request.

You Can Download a Sample HITECH Medical Record Request Form Letter Here.

Breakdown of The HITECH Act under HIPAA

HIPAA (the Health Insurance Portability and Accountability Act of 1996) provides data privacy and security provisions for safeguarding medical information.

The Health Information Technology for Economic and Clinical Health Act, known as the “HITECH Act”, provides patients and lawyers with a way to get medical records at significant cost savings. Pursuant to 42 USC 17935(e) (1), if a covered entity maintains electronic health records:

 "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…”

Instead of using a traditional HIPAA authorization, a client can use a HITECH request and direct the medical records be sent to their attorney.

1. Simple and Straightforward. The HITECH medical records request must:

(i) be in writing;

(ii) signed by the Client; and

(iii) identify the third-party (attorney) to send the records.

Click on the HITECH Medical Records Request above for a sample request that you can use. The necessary wording of a HITECH request is simpler than a HIPAA authorization.

2. 30 Days to Produce Medical Records. The medical provider must respond to a HITECH request within 30 days after receipt. (See 45 CFR 164.524 (b) (2) (i)). Compared to no time deadline for a HIPAA authorization.

3. Medical Records Costs. The fees charged to respond to a HITECH medical records request are strictly limited by 45 C.F.R. §164.524 (c) (4). In most cases, the fee will be $6.50. (See HHS FAQ 45 CFR 164.524 page 15). This charge limit also applies to any third-party vendor hired to respond to the HITECH request. (See HHS FAQ 45 CFR 164.524 page 13). Further, the HITECH Act is a federal legislation that supersedes State laws regarding to the cost of medical records.

Limits of HITECH Act Medical Record Requests.

There are two important limitations to a HITECH Records Request that attorneys should be aware of. First, it applies to medical records kept in electronic format. If the health care provider only maintains paper records and those records cannot be readily produced electronically, then the HITECH request does NOT apply. Many chiropractic or physical therapy facilities do not use software or electronic records and instead use handwritten notes on paper. Second, psychotherapy notes are excluded from a HITECH Records Request under 45 CFR 164.524 (a) (1) (i).

When medical provider only maintains paper copies.

The US Department of Health & Human Services (“HHS”) has issued guidance when a covered entity maintains only on paper. The HHS guidance states that “the covered entity is required to provide the individual with an electronic copy if it is readily producible electronically (e.g., the covered entity can readily scan the paper record into an electronic format) and in the electronic format requested if readily producible in that format, or if not, in a readable alternative electronic format or hard copy format as agreed to by the covered entity and the individual.” The HHS Guidance can be found here. This means that if the provider is able to scan or fax, then they must abide by the Hitech Act rates.

Enforcement.

If the HITECH request is denied or you are sent an invoice for medical records that contains a per page charge, then you should contact the medical records supervisor and advise them that the request was pursuant to the HITECH Act. Sometimes a call to the records custodian is required to ensure compliance with the HITECH request.

If the call does not help, then send the records custodian a letter containing citations and attachments of the relevant authority with a 10 day deadline to produce the records or provide a written reason for the denial.

If that does not work, you should file a complaint with the Civil Rights Division of the US Department of Health & Human Services. They will contact the medical facility and investigate.

Practice Pointers.

1.  The patient gets to choose the method for obtaining medical records, NOT the health care provider. (See 45 CFR 164.524 (b) (1) and (c) (2)).

2.  The attorney should NOT send a HIPAA authorization with the HITECH request which might give the covered entity a basis to reject or deny the HITECH fee limitation.

3.  Some health care providers take the position that the HITECH Medical Records Request must come directly from the client. To avoid this roadblock avoid using the law firm letterhead and instead send just the HITECH request form via fax or regular mail to the provider. You may also have the client, fax, mail, or email the request to the provider.

Hitech Act Compliance and Violations

Often medical providers are either unaware or unwilling to abide by proper HITECH ACT requests. Please see our page on compliance HERE. You are able to file a complaint with the Department of Health and Human Services Office of Civil Rights if a medical provider is violating your HITECH ACT request and charging more than the federally allotted rates.

Our Motto and Modus Operandi

We strive to represent all of our personal injury clients effectively and efficiently. All our of medical records requests are HITECH Act compliant. We obtain certified records in every case as we prepare the case for the trial - we are not a settlement firm with easy gimmicks, false assurances, low settlements, and catchy advertising. We believe that the cost savings passed onto our clients helps them to get their maximum recovery. Please give us a call if you or someone close to you has been injured at the hands of someone else - we would be happy to have a free, no strings attached consultation with you. We have helped numerous injury victims recovery just compensation in Georgia and the Southeast. We are honest, communicative, and methodical with our approach to the case and our clients. Fill out our forms below if you are looking for a Georgia personal injury attorney or looking for local Georgia counsel for a personal injury case.