Using the HITECH Act When Seeking Medical Records in Your Case


Each year disability lawyers, workers compensation attorneys, and personal injury law firms – as well as disabled individuals and accident victims – spend hundreds of thousands of dollars obtaining the medical records they need to support their case. Obtaining medical records from your health care providers may even be too expensive for you to pursue. And if you don’t have all the records you need to support your claim, you may be denied the compensation and benefits you need and deserve.


This article explains how to use a new law, the HITECH Act, to obtain your medical records at a reasonable cost. It is important that you read the law and its implementing regulations precisely, or else the health care provider may charge you a higher fee under state law.


If you have any questions about using the HITECH Act to obtain medical records, contact Corey Pollard at 804-251-1620 or 757-810-5614 or by completing our online contact form. We help disabled and injured workers across the state obtain top dollar workers compensation settlements and receive the Social Security benefits they deserve.


HIPAA and Medical Record Requests in Disability and Injury Cases


You need access to your health information not only to help you prevail in your disability, workers’ comp, or injury case, but also so that you can have more control over your health and well-being. When you have access to your private health information, you are better able to monitor your conditions, comply with treatment, and track your progress.


Recognizing this, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) contains a Privacy Rule that gives individuals the legal right to obtain copies of their medical records from HIPAA covered entities. Most health care providers and health plans are HIPAA covered entities.


What Medical Records Am I Entitled to Under the HIPAA Privacy Rule?


Under HIPAA, you have a right to access protected health information in your “designated record set.” A designated record set is defined at 45 CFR 164.501. It is a group of records maintained by or for a health care provider that consists of:


  • Medical records and billing records
  • Enrollment, payment, claims adjudication, and case or medical management record systems
  • Other records used to make decisions about individuals


The designated record set includes clinical laboratory test results; medical images such as X-rays and MRIs; and, clinical case notes.


It does not include psychotherapy notes, which are the personal notes made by a mental health care provider documenting or analyzing your counseling session. You can, however, obtain these records if they are relevant to your disability or workers’ comp claim using other laws and regulations.


How Do I Request Records Using HIPAA?


Traditionally attorneys, disabled individuals, and accident victims have used HIPAA to obtain their medical records. This involves completing and signing a HIPAA authorization form. You’ve probably seen one of these several times.


The HIPAA authorization form is sent to the health care provider, which in turn sends you an invoice that you must pay for obtaining your records.


The Cost of Records When Using a HIPAA Authorization Form


When an individual or third-party, such as an attorney, requests medical records using a HIPAA authorization form, the health care provider may charge whatever fee is allowed under that state’s law.


In Virginia, a health care provider may charge the person requesting the records a fee equal to $0.50 per page for up to 50 pages and $0.25 per page for all additional pages if the copies are maintained in paper format or electronic storage.


If the medical records are kept in electronic format, a health care provider may charge the person requesting the records a fee equal to $0.37 per page for the first 50 pages and $0.18 per page for the additional pages. In addition, the health care provider may charge a $20 fee for search and handling.


The total amount of the charge may not exceed $150 per request.


If you have treated with multiple health care providers, you may have to spend several hundred dollars – or even thousands – to obtain all your records.


But there is a way to reduce the cost: The HITECH ACT.


The HITECH Act – Reducing the Fee for Medical Records in Virginia and Across the Nation


The Health Information Technology for Economic and Clinical Health (HITECH) Act, which was signed into law in 2009, provides attorneys and clients with a new way to obtain medical records at a lower cost. Under 42 USC Section 17935(e)(1), an individual:


shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, 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 …


Instead of using a HIPAA authorization, an attorney can ask a client to sign a HITECH request. The HITECH request has several advantages over the use of a HIPAA authorization:


1. It’s Simple.


The HITECH request does not have to contain as much information as a HIPAA authorization. All it needs is:


  • To be in writing
  • To be signed by the client
  • To identify the attorney and where to send the medical records
  • To state the records should be sent in an electronic format


2. It Puts a Deadline on When Medical Records Must Be Received.


Under the HITECH Act, the health care provider must respond within 30 days of the date it receives the request. This is not true with a HIPAA authorization, though state law does mandate a response.


3. It Reduces Fees for Medical Records.


The HITECH Act limits the amount that health care providers can charge for medical records. Health care providers can charge only a reasonable, cost-based fee.


Per page fees are not permitted for paper or electronic copies of protected health information maintained electronically. In fact, the U.S. Department of Health and Human Services has stated that it does not consider per page fees for copies of protected health information maintained electronically to be reasonable.


Further, health care providers may not charge the attorney or patient for costs associated with searching for and retrieving the protected health information.


As a result, records received through the HITECH request are often much cheaper than those received using a HIPAA authorization. In fact, providers fulfilling HITECH requests can charge just $6.50 per request, unless they go through the process of calculating their actual labor costs to fulfill the request.


4. It Applies to Third-Party Medical Record Vendors


Many large hospitals and health care providers contract with business associates to act on requests for protected health information. These business associates, such as CIOX and Cardone, must comply with the HITECH fees.


5. The Health Care Provider Must Notify You of the Charge in Advance


Under the HITECH Act, a health care provider or its business associate much notify you in advance of any fees that it plans on charging for the records. This gives you an opportunity to negotiate and contest the fee for your medical records.


6. It’s Enforceable.


If your HITECH request is denied, you may file a complaint with the US Department of Health and Human Services. The health care provider may have to pay fines and fees.


Get Help with Your HITECH Request and Injury or Disability Case


Need help obtaining medical records to build your personal injury or disability case? We are here for you. Call, text, or email us today for a free consultation.


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