In January 2020, the United States District Court declared unlawful and vacated the 2016 Office for Civil Rights (OCR) Guidance which extended the Patient Rate to third-party directives. In other words, the cap on the fee a patient can be charged for medical records does NOT apply to requests for records that are sent to third parties, such as law firms, insurance aggregators, and APS companies.
In response to this ruling, the US Department of Health & Human Services (HHS) published a Notice on January 28, 2020, that summarizes this ruling. Click here to see this summary: NOTICE
Be Aware of Third-Party Requester Tactics
Unfortunately, some requesters still try to pressure hospitals, provider clinics, and their release of information partners to provide the capped patient fee rate to them. These tactics can take the form of:
- Multiple phone calls threatening to file complaints with OCR regarding a lack of adherence to the 2016 OCR Guidance, even though the Patient Rate to third party directives had been declared unlawful.
- Multiple letters quoting various penalties that can be assessed for HIPAA, Privacy, and HITECH non-compliance if the patient fee rate is not extended to them. These types of letters create confusion, angst, and often result in the third party getting the records in an unethical manner, because the organization thinks they are being non-compliant.
- Letters stating that a complaint has been filed with the OCR including official sounding language. Anyone can file a complaint with the OCR. If the OCR decides to investigate, you will receive an official letter from them. Again, the intent is to create confusion and make you think you are not in compliance.
What you, your staff and patients need to know
The fee limitation set forth in 45 C.F.R § 164.52 (c)(4) will apply only to an individual’s request for access to their records and does not apply to an individual’s request to send records to a third party. When a patient directs the records to be sent to third parties such as law firms, insurance aggregators, and APS companies, the patient fee cap does not apply and instead is governed by state statutes.
How can you help patients understand the importance of fee setting and using the right partners for ROI?
- Continue to educate your patients about access and privacy related to their medical record requests.
- Encourage them to utilize a HIPAA compliant authorization and share how it protects the privacy of their health data when authorizing the release to a third party.
- Encourage them to release only what is necessary to address their needs.
These steps save your organization’s time and ensure your patients get their records in a timely and compliant manner.
Let the Experts Help with Your Release of Information Needs
Sharecare prides itself on knowing the law and following the law, cooperating with the Office for Civil Rights, and protecting our clients from unscrupulous practices sometimes employed by requesters to obtain medical records.
Because we stay current with the laws governing our industry, we always seek opportunities to educate and provide support for our clients with pertinent news that can impact their daily operations related to release of information. We are your HIPAA and Privacy watchdog!