ONC’s Final Rule. Are HITECH medical records requests now Obsolete?

In 2018 I wrote an article explaining why HITECH medical records requests were “an excellent tool attorneys can use to obtain medical records at a lower cost”. Click here to see the article.

A lot has changed since 2018.

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. The Court ruled that the HITECH 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. Click here to see my article that discusses the Ciox case.

While the HITECH fee cap still applies to patients who request their own medical records, my experience has been that the majority of my clients simply are not able to obtain their own records and forward those records to my office in a timely manner.

Furthermore, on June 30, 2020 ONC’s Cures Act Final Rule (Final Rule) became effective. These new regulations dramatically change the rules of the game on how patients can access their electronic health records, and what fees can be charged for such records.

First, the Final Rule effectively eliminates the practice used by health care providers and their vendors of charging a per page fee for electronic records.

Second, the Final Rule prohibits fees for electronic health information that result in “information blocking”, AND specifically apply this prohibition to any “person or entity designated by the individual”. Hence, under the Final Rule, the fee limitation extends to attorneys designated by their clients. Given the strong legal foundation for ONC’s Final Rule, it will be very difficult for health care providers to separate the fee limitation provided patients from the attorneys designated by those patients.

Third, and perhaps most important, ONC’s Final Rule requires the health care industry to adopt standardized application programming interfaces. This technology is the foundation of smart phone apps. One objective of the Final Rule is to allow the creation of smart phone apps that patients can use to access their medical records.

For an informative article by attorneys Cynthia A. Haines and Elizabeth M. Hein discussing these new regulations, see ONC Interoperability Final Rule: Impact of Health Care Providers.

As a result of ONC’s Final Rule, patients are going to have access to all their medical records via an app on their smart phone. Patients can then share their records with their attorneys, instantly and at no cost.

Due to the CIOX case and ONC’s Final Rule, HITECH medical records requests are no longer an effective tool for attorneys to use to obtain medical records. I believe ONC’s Final Rule has rendered HITECH requests obsolete.

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ONC's Final Rule

Disability Lawyer David R. Paletta