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Medical Justice

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Legal

Some Attorneys Behave Like Jerks

07/23/18 9:28 AM

Yes, I know.

The sun rises in the east. Sets in the west.

And 2+2=4.

Most of the time, when an attorney requests a copy of medical records for something like a personal injury case, auto accident, worker’s comp, they are professional, courteous, and offer to pay you the reasonable cost of copying the record. Those fees are generally capped by state law in most, if not all, states.

One Medical Justice member recently received a letter from a disability attorney asking for relevant medical records.

His letter stated he wanted records in electronic format only. He placed a rush job on it. He said he needed it within 3 weeks because a social security hearing was scheduled.

He reminded the doctor that the HITECH Act mandates requests for medical records must be addressed within 30 days.

Then he said, by law, he did not have to pay because he was requesting records in electronic format.

Finally, he said failure to timely respond within the 30 day mandate “subjects your company to significant fines and penalties via formal complaint with the Office of Civil Rights of the US Dept Health and Human Services.”

Is it true that if an attorney demands the medical record in electronic format, he does not have to pay for the service?

Not really.

But, it does appear there is a clash between federal law and state law.

Here’s is what it boils down to:

If you use electronic medical records, and request asks for an electronic format, you cannot charge a per page fee.

If the medical record has never been entered into electronic format and all you have are paper copies, then a per-page fee applies (if your state allows such charges).

If you use electronic medical records and you convert the request into electronic format, HIPAA allows you to: (a) charge your actual labor costs + shipping + the cost of the electronic media; or (b) $6.50.

A provider may calculate its actual labor costs each time an individual requests access, or may develop a schedule of costs for labor based on the average (and HIPAA-permitted types of) labor costs incurred in fulfilling standard types of access requests.  However, a provider is NOT permitted to charge an average labor cost as a per-page fee unless the medical record is: (1) maintained in paper form; and (2) the individual requests a paper copy or asks that the paper record be scanned into an electronic format.  Thus, under HIPAA, a per-page fee is not permitted for medical records that are maintained electronically.  As stated in the Access Guidance, “OCR does not consider per page fees for copies of … [protected health information] maintained electronically to be reasonable” for purposes of complying with the HIPAA rules.   

A provider may also decide to charge a flat fee of up to $6.50 (inclusive of labor, supplies, and any applicable postage) for requests for electronic copies of medical records maintained electronically. OCR explains that the $6.50 is not a maximum, simply an alternative that may be used if the provider does not want to go through the process of calculating actual or average allowable costs for requests for electronic copies. 

Nobody is going to get rich making copies of medical records. It is not a revenue center for most medical practices. So, not sure why the attorney’s opening request included threats. It would have been more civil to point the physician to the rules and regulations governing HIPAA and HITECH rather than come out swinging.

The letter was signed by the Legal Assistant.

What do you think?

Posted by Medical Justice | in Legal | 7 Comments »

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retiredPaul BraceyCarla H Schlissel, DDSMarkMichael M. Rosenblatt, DPM Recent comment authors
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Dr D
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Dr D

I know exactly who this A-hole is in upstate NY.
when I called him to inform him how offensive this was, he refused to take my call and told his assistant to tell me to F— off.

Michael Gorback
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Michael Gorback

I thought you couldn’t charge a copying fee at all for SSDI cases. Most demands I get quote the law.

Then they start bitching about how long we’re taking to provide the records and we tell them about the 30-day part of the law.

Michael M. Rosenblatt, DPM
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Michael M. Rosenblatt, DPM

THIS is what you get when liberal law-makers run-amuck in any Government system. They write volumes of rules and regulations that become FELONIES if not precisely carried out in perfect detail.

Ostensibly this is to “protect” patients and the “public”.

That is a lie. The purpose of these regulations is to control your life and take it over, creating useless employment for useless people.

I respectfully ask you to REMEMBER this when you vote.

Michael M. Rosenblatt, DPM

Mark
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Mark

Are docs allowed to play dumb and make the attorney sweat so when they call being a holes and this and that we can say “me didn’t get no stinkin’ record request maaaaan”

🙂
Dr. Mark C Williams

Carla H Schlissel, DDS
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Carla H Schlissel, DDS

Yes, there are jerks in every profession…However…. Methinks this “Legal Assistant” is too big for his britches and is overly impressed with himself. I wonder if he’s as big a jerk outside of the office as well.

Paul Bracey
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Paul Bracey

The simple solution here is to release the records on the 29th day. Complied with law, but a week late for the hearing. I guess you should’ve requested this a week earlier?? Assholes.

retired
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retired

I just received a request via subpoena for medical records from an attorney’s office representing a trucking company. The trucking company’s truck apparently ran into the patient’s vehicle injuring him and killing his wife. The subpoena came in via certified return receipt mail. There was no medical records release. I sent back a letter regular mail, requesting a medical release. The subpoena deadline date was approaching, but there was no response from the attorney’s office. Fortunately I was able to email the paralegal who drafted all of the paperwork and she told me the patient was due to have the… Read more »