The HITECH Act to getting Medical Records

    The HITECH Act [45 C.F.R. §164.524] provides for individual patients to demand health care providers produce electronic copies of their medical records and sets time and fees/costs limitations. Enacted in 2013, there was an open question as to whether the Act applied to requests made by “third parties on behalf of a patient, rather than the patient him/herself.”  On January 23rd, the District Court in DC answered the question, finding that requests under the HITECH Act from third parties (such as attorneys or insurance carriers) are not subject to the act’s limitations. The Court did confirm the right of individuals to access their own records and the fee limitations apply when exercising this right are undisturbed and in effect.  The decision in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020) can be found HERE.

    Practical Tip: Consider having a client sign HITECH request letters at the time of retention that can be used to make direct requests to providers from the individual. Production is generally done by CD-ROM via US Mail and there appears to be no reason the delivery address could not be yours. If done by secure email service from the provider (as Kaiser does), coordinating to have the email forwarded to your office for retrieval would seem to be workable. There is at least one district court that has found such a request subject to the HITECH limitations. See Rios v. Partners in Primary Care, P.A., Slip Copy (W.D. Texas, San Antonio Division. February 15, 2019)

    In sum, a change in policy/practice as to obtaining medical records using the HITECH Act could result in substantial costs saving. This does not solve the cost issues related to obtaining copies of records subpoenaed by opposing counsel for matters in litigation – but we have other tools to deal with that!