The law on HITECH medical records requests has changed due to the recent CIOX Health case.
On January 23, 2020, the United States District Court for the District of Columbia entered a Decision in the case of Ciox Health, LLC v. Azar, Case No. 18-cv-00040 (APM). The Court ruled that the HITECH Act cap on the fee a patient can be charged for medical records does NOT apply to records sent to third parties, such as a law firm.
The decision of the Court can be found here.
In response to this Decision, the US Department of Health & Human Services (HHS) published a Notice on January 28, 2020. This Notice summarizes of the key rulings in the Court, and states
“The right of individuals to access their own records and the fee limitations that apply when exercising this right are undisturbed and remain in effect. OCR will continue to enforce the right of access provisions in 45 C.F.R. § 164.524 that are not restricted by the court order.”
The Notice of the HHS can be found here.
In summary, the HITECH fee cap still applies to patients who request their own medical records, but does NOT apply to medical records sent to a third party.
It is too early to know if HHS is going to appeal the Court’s Decision, simply accept the Court’s Decision, or promulgate new regulations. Regardless of what action HHS takes, the HITECH cap on fees for medical records requested by a patient remains the law of the land.
Therefore, one option still available is to simply have the client (patient) send a HITECH medical records request to the health care provider and then forward the electronic records received to the attorney. While this method is not as convenient, it will work in most cases.
The attorney can assist the client by preparing the HITECH request. A sample form for a HITECH medical records request can be found here. Further, the attorney can give the client a self addressed envelope, with postage prepaid, to provide the client a convenient method to get the medical records to the attorney’s office.
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