HOW CIOX V. AZAR HAS CHANGED THE PERSONAL INJURY LANDSCAPE
Rappaport, Glass, Levine & Zullo
The delivery of medical records to patients and their attorneys has undergone seismic changes in the last few decades. Federal and state HIPAA laws created strict standards governing patient privacy. In New York, Public Health Law Sections 17 and 18 required health care providers to turn over medical records at a cost not to exceed $0.75 per page. In 2009, Congress passed the Health Information and Clinical Health Act (the Hi-Tech Act)which required medical providers to provide patients with an electronic or digital copy of their medical records ata special “patient rate,” which was essentially the provider’s cost-if those records were maintained in electronic format.
HHS issued a “Guidance” in 2016 entitled “Individuals’ Right under HIPAA to Access their Health Information 45 C.F.R. § 164.524.” The Guidance made clear that the patient should have access to the medical record irrespective of whether the request by the patient emanated from a third party (like an attorney’s office) or was to be sent to the patient’s attorney’s office. More specifically, HHS declared that the special patient rate applies “when an individual directs a covered entity to send the (medical record) to a third party.”. “This limitation,” HHS said, referring to the Patient Rate, “applies regardless of whether the individual has requested that the copy of PHI be sent to herself, or has directed that the covered entity send the copy directly to a third party designated by the individual (and it doesn’t matter who the third party is).”
Attorneys who were in need of their client’s medical records soon began to realize that they could obtain their entire client’s medical chart, in an electronic format, at the providers’ cost of delivering the record, which was a fraction of the usual $0.75 per page maximum rate under New York State law. The attorney’s best practice was to send a letter to the health provider signed by the patient requesting that an electronic record be forwarded to the attorney, as agent of the patient. In the last few years, it became commonplace for the personal injury attorney to receive a several thousand page hospital record for a minimal cost, usually between $6.50 and $20.00. Needless to say, the Hi-Tech Act Guidance was not welcomed by the large national record copying companies like CIOXX, IOD and VERISMA, who were losing millions of dollars every year in record copying revenue and who felt the reduced rate for medical records should only apply if the records were truly for the personal use of the patient.
Enter then, the recent decision in CIOX Health LLC v. AZAR, No. 18-CV-00640 (APM); 2020 U.S. Dist. LEXIS 12801 (District Ct. District of Columbia Jan. 23, 2020). CIOXX arose out of a challenge to a Department of Health penalty against a hospital serviced by CIOXX for the failure to provide records at the special patient rate to a patient who directed the records be sent to her lawyer. CIOXX argued the agency Guidance under the statute requiring CIOX to send the records at the special patient rate to the attorney was invalid on procedural grounds. The Agency issued the guidance, CIOX argued, without ever following the notice and comment requirements in the federal Administrative Procedures Act (APA),which governs when and how agencies can issue final legislative rulings. The Court agreed, holding that the Agency failed to follow appropriate rulemaking procedure under the APA. In dicta, the Court went further and suggested that the agency Guidance was erroneous, even if the rulemaking notice and comment statute had been followed.
CIOXX, and every other major record copying company, immediately began rejecting the patient’s third party attorney requests for medical records under the Hi-Tech Act and sent the attorneys large bills for copying the records at the standard $0.75 per page (in New York) rate. As of this writing, HHS has not appealed the ruling.
So, what should personal injury attorneys do while we await a legislative solution to the CIOXX decision? It remains undisputed that individual patients have a right to an electronic copy of their medical records at cost. Attorneys should immediately revise their Hi-Tech request letters so that the request clearly comes directly from the patient. The request should direct that the records be sent in electronic format directly to the patient, instead of to the lawyer’s office. The added complication, of course, is that the patient then has to provide access to the electronic copy to his/her attorney. That is, however, a small price to pay to obtain access to the client’s medical records at an affordable rate while we await a more permanent solution.
”(A)ny fee that the covered entity may impose for providing such individual with a copy of such information . . . if such copy. . . is in electronic form shall not be greater than the entity’s labor costs in responding to the request for the copy.” 42 USC § 17935(e)(3)}.
“[I]n the case that a covered entity (a medical health records provider) uses or maintains an electronic health record with respect to protected health information of an individual . . . the 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.” 42 USC Sec 17935(e) (1). The regulation under the statute similarly stated: “If an individual’s request for access directs the covered entity to transmit the copy of [PHI] directly to another person designated by the individual, the covered entity must provide the copy to the person designated by the individual.” 45 C.F.R. § 164.524(c)(3)(ii).
On the legislative front, HSS and CMS recently issued regulations for public comment under the 21stCentury Cures Act. The Cures Act was signed into law during the Obama administration and was meant to accelerate research into cures for various illnesses. Recent final rulemaking proposed by HSS and CMS under the Cures Act would require electronic medical record software companies to make their electronic medical records software more compatible with one another and easier to download into a smartphone application for patient use. Language in the proposed regulations much like language in the Hi-Tech Act, supports the argument that the patient can require that the electronic medical information be sent to a “designated third party.” The proposed regulation does not specifically mention attorneys or attorney requests for records. If approved after public comment, the procedural grounds of the decision within CIOX Health LLC v. AZAR, Case No. 18-CV-00640 would arguably be overturned. However, the more substantive question of whether Department of Health deviated from its statutory authority, in promulgating a rule requiring records be directly sent to third parties (including attorneys) at the preferential rate, would still remain an open question. See