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Thursday, July 23, 2020

HITECH Medical Records: Post Ciox

Article by Courtney Garrity

                Obtaining one’s medical records has always had a bit of a challenge attached. Whether it means a game of phone tag with a physician’s office, trouble navigating patient portals, or watching the mailbox like a hawk, getting a complete set when necessary can take some work. Under the Health Information Technology and Clinical Health (HITECH) Act, 42 U.S.C. §17935(e), a patient has been provided the means of obtaining low-cost electronic copies of their medical records. In addition to creating an affordable ease of access for patient records under 45 C.F.R. §164.524(c)(4), the HITECH Act also created deadlines under 45 C.F.R. §164.524(b)(2) and the ability for the patient to designate a third-party recipient under 42 U.S.C. §17935(e)(1).

                Used in medical malpractice, personal injury cases, car accident and a plethora of other cases, medical records have the potential to be a crucial piece of evidence. In such cases, counsel often sends records requests on behalf of the clients which now may be in jeopardy given their status as a ‘third party recipient.’

                As of January 23, 2020, upon a decision by Judge Amit P. Mehta of United States District Court for the District of Columbia following Ciox Health, LLC v. Azar, patients and counsel alike may face changes in future records requests. Stemming from the 2016 Guidance issued by the Department of Health and Human Services, third-party requests for records “by an entity or person designated” by the patient, allowed said third parties to receive records at patient rates. As a medical records provider, Ciox Health, LLC had claimed that the 2016 Guidance had “failed to provide notice and opportunity for comment by interested persons pursuant to the Administrative Procedure Act.” They also brought forth the argument that allowing third parties to receive records at the discounted rate may have potentially affected their, and those in a similar business, bottom line.

                So how does Ciox affect the way a patient may receive his or her records?

                The first option would be for the patient to send the HITECH records request and have the files sent directly to them. The second would be for counsel to request them at the non-patient rate, sent directly to them.

                In deference to future cases, having the patient request and receive their records would mean that the patient would be paying out of pocket and then be responsible for mailing and/or delivering said records to counsel. When counsel requests records, the sum of such requests is deducted from funds already provided by clients. If patients request their records, the records contractors could refuse the Keeper of the Records Certification which is needed by counsel. Alongside that fact, it is possible that such records contractors may not offer certified copies at the request of the patient at all. Another possible result would be referral to a patient portal. Should a patient be directed to use a patient portal, there is the risk that they receive incomplete records.

        With so many what ifs, it is necessary to tread carefully along the new use of the HITECH Act. Keeping in mind the restriction to third parties as set forth in Ciox, it will become necessary to know and understand the nuances of the abbreviated Act and the best ways to wield it for your client.

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