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  • July 13, 2016

    HITECH: Low-cost Electronic Medical Records

    Under 42 U.S.C. § 17935(e)(1), your client has a right to direct that his or her personal health information be sent to you in an electronic format, and you can save them a bundle because the charges are limited to reasonable and cost-based fees. 45 CFR 164.524(c)(4).

    Atty. Bruce R. Bachhuber

    Every lawyer that has been involved in personal injury litigation has expressed dismay and sometimes a lot more than that, over the high cost of medical records. Wis. Stat. section 146.83(3f) allows a person to obtain copies of health care records if informed consent is given and he or she “pays the applicable fees under par. (b).” That subsection sets the basic fees for medical records which are then adjusted annually, effective July 1, by the consumer price index for all urban consumers during the 12-month period ending on Dec. 31 of the preceding year. The 2016 charges were published as a Public Notice by the Department of Health Services.

    Bruce Bachhuber Bruce Bachhuber, U.W. 1983, is a shareholder in the law firm of Hanaway Ross, S.C., Green Bay. His practice is focused primarily on plaintiffs’ personal injury.

    Health care providers may charge $1.07 per page for the first 25 pages, $.79 per page for pages 26-50, $.53 per page for pages 50-100 and $.31 for pages over 101. A certification fee of $8.45 is authorized, as well as a standard retrieval fee of $21.13. Lastly, taxes and actual shipping charges are extra. Thus, five pages of certified records will cost over $34.83 plus taxes and postage. One hundred pages of records will cost $102.58 plus taxes and shipping. It doesn’t take long for these charges to add up – and all of this expense is passed on to the client.

    Most, if not all attorneys involved in personal injury litigation would prefer to receive and store medical records electronically. Rather than request paper copies and pay the excessive charges imposed by the record copying services, request an electronic copy. The federal Health Information Technology for Economic and Clinical Health Act (HITECH Act) will substantially reduce the record costs.

    The Act was signed in 2009 and included incentives for health care providers to accelerate the adoption of electronic health record systems. 42 U.S.C. § 300jj-11. The Department of Health and Human Services has developed a series of regulations to carry out the purposes of HITECH, including conversion to electronic records, which makes it easy to obtain an electronic version of the client’s protected health information.

    45 CFR 164.524(a)(1) states that an individual has a right of access to inspect and obtain a copy of protected health information (PHI) about the individual in a designated record set, for as long as the PHI is maintained. 45 CFR 164.524(b)(2)(i) requires the entity to respond to the request within 30 days. 42 U.S.C. § 17935(e)(1) allows the individual “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.”

    The Act applies to all health care information. 45 CFR 160.103. The definition is so broad that it easily encompasses medical bills. Thus, the clear, conspicuous and specific request of the client to transmit all health care information and all health care billing records to his or her attorney will comply.

    Most beneficial to our clients, who pay the bills, is that 42 U.S.C. § 17935(e)(2) says any fee that the covered entity may impose for providing records in an electronic format “shall not be greater than the entity’s labor costs in responding to the request for the copy.” The enabling regulation, 45 CFR § 164.524(c)(4), provides that upon request for PHI, the covered entity may impose a reasonable, cost-based fee, provided that the fee includes only the cost of:

    1. Labor for copying the protected health information requested by the individual, whether in paper or electronic form;
    2. Supplies for creating the paper copy or electronic media if the individual requests that the electronic copy be provided on portable media;
    3. Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and
    4. Preparing an explanation or summary of the protected health information, if agreed to by the individual as required by paragraph (c)(2)(iii) of this section.

    The client should sign a letter request directed to the health care provider, similar to the following:

    Pursuant to the HITECH Act and section 42 CFR 164.524(c)(3)(ii), I am hereby requesting that you provide a complete and accurate copy of all of my health information and billing records for the time period ** to ** to my attorneys, **. I am requesting that all of the records be produced in an electronic format. Please direct the information to:

              John Smith, Esq.
              Law Firm, S.C.

    If you send the records by email, please send them to Attorney Smith’s email address which is **. If you have additional questions, please direct them to Attorney Smith and his staff. Thank you.

    If you experience resistance to these requests, and the covered entity attempts to assert the charges authorized by the State of Wisconsin, the HITECH act and its regulations are comprehensive, and you may want to remind the covered entity of the principle of federal pre-emption. If that doesn’t solve the problem, the U.S. Department of Health and Human Services Office of Civil Rights will investigate complaints and impose fines for violations. 42 U.S.C. 1320d-5.

    Experience has shown that the cost savings for requests both large and small is extensive – in most cases the cost is a small fraction of the cost of paper copies.

    The downside of this request is that the records are not certified and thus, not self-authenticating within the meaning of Wis. Stat. section 908.03(6m)(b). One could request certification of the records in electronic format at the modest extra expense. However, blending requests under HITECH with requests governed by state law may create an ambiguity and result in a rejection of the request or production of a paper copy of the record set at the fees set under state law.

    In the event it becomes necessary, there are many ways to authenticate the pertinent medical records without a certification. One method is the use of requests to admit under Wis. Stat. section804.11. Another is to have the provider identify and authenticate the record in a deposition. A third method is by stipulation as, outside of medical negligence cases, there are seldom serious arguments over the authenticity of a medical record.

    As stated above, the fees for medical records authorized under state law are adjusted yearly on July 1. The 2016 increase was modest, but an increase nonetheless. HITECH offers all of us an easy way to save our clients some money when making these routine requests for medical records. Once your office system is set up to make the HITECH requests, you will never go back.

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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Heather L. Nelson and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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