Our clients pay thousands of dollars for medical treatment—and then have to pay hundreds or thousands more to send their records to their lawyers. But there’s a way around that $1.50 per page charge: the HITECH Act of 2009. It allows patients to request their electronic health records at a capped rate. This often means that you won’t pay more than about $10 for your client’s medical records. There are a few caveats, discussed below.
The HITECH request must come directly from the client.
The HITECH request must be from the patient to the provider. If the client is requesting that their provider send the medical records to their attorney, the request has to be in writing and signed.
The request may get denied if the provider believes that a lawyer sent it. When drafting the letter, make it simple—avoid legal jargon or citations. I recommend having your client sign a form HITECH request letter with the rest of their intake documents, for you to easily send out to medical providers when needed. You can find a sample at the bottom of this page.
The client CAN request that their records be sent directly to their attorney.
If the client request for medical records directs the medical provider to transmit a copy of the medical records to another person designated by the client, the medical provider must provide them with that copy. The client’s request must be in writing, signed, and clearly identify the person and where to send the copy of the medical records.
The medical provider may charge actual cost, average cost, or a $6.50 flat rate.
$6.50 is not the maximum amount that can be charged to provide the client with a copy of their records. The medical provider can charge (1) actual allowable costs to fulfill each request; (2) average allowable labor costs to fulfill standard requests; or (3) a flat fee not to exceed $6.50 (inclusive of labor, supplies, and postage).
The “reasonable, cost-based fee” covers only certain limited labor, supplies, and postage costs. This means the labor of copying/scanning the records, the cost of supplies (i.e., the cost of a CD), and postage. Other labor costs, such as search and retrieval, may not be charged—even if authorized by state law.
Realistically, this should not come out to more than $30. In a small case, it can come out to less than $6.50, so the medical provider will opt to charge the flat rate.
You don’t have to attach a HIPAA authorization…
…But you can. The Department of Health and Human Services does not require you to send a HIPAA authorization. Doing so is a bit of a double-edged sword. If you attach it, the medical provider will suspect that the request came from an attorney. If you don’t, the medical provider will probably request it before sending anything, which just prolongs the process. At our firm, we typically opt to attach it.
Form Request Letter
Below is a form HITECH request letter. Again, I suggest having your client sign a blank one with the rest of their intake documents for you to use at will.
To Whom It May Concern,
I request all MEDICAL and BILLING records relating to my treatment and care from [dates of treatment] per the HITECH Act of 2009. Please either (1) upload my medical and billing records to a CD and send to the address provided below, or (2) e-mail my medical and billing records to [your email].
My attorneys will pay the HITECH charges for these records. I have attached a HIPAA authorizing you to disclose my health information to my attorneys. If you have any questions, please contact [your firm name & number]. Thank you for your assistance.
Form Response Letter
There is a good chance you’ll receive pushback when ordering records for less than $10. In the event that you receive a ridiculous bill—despite using the HITECH request letter, here’s a form response.
To Whom It May Concern,
Our office has received your invoice of [$0.00] for the medical and billing records of [Client.] Under the HITECH Act, the fee that any covered entity may impose for providing a copy of electronic health records “shall not be greater than the entity’s labor costs” in responding to the request. 42 U.S.C. § 17935(e)(3).
This is limited to the cost of labor of copying the records, supplies [(here, the cost of a CD)], and postage. 45 C.F.R. § 164.524(c)(4)(i)-(iii). The US Department of Health & Human Services permits you to charge $6.50 as a flat rate or calculate the average cost for providing these electronic records. “Basic fees” and “search and retrieval fees” are not permissible under HIPAA.
If the cost is based on the actual cost in producing records, please provide the record of time of the employee who collected these records and the calculations you used to arrive at your actual cost. If the cost is based on the average cost in responding to this request, please provide your calculations for arriving at the average cost. Alternatively, we will pay the $6.50 flat fee.
Please provide our office with an invoice that complies with the law and we will promptly pay it. Thank you for your attention. If you have any questions, please do not hesitate to contact our office at [number].