In our last post, we explained how, in the wake of the Ciox Health, LLC v. Azar opinion, there’s been a shift to using state laws to calculate fees for medical records sent via third-party directive. In Florida, that means the $1.00 per-page rate under Rule 64B8-10.003, Florida Administrative Code (“the Rule”) now applies to many of those directives. As it stands now, the Rule isn’t exactly patient-friendly, particularly when the patient is also a personal injury plaintiff. And, believe it or not, the recent proposed changes to the Rule would make it go from bad to worse. Here’s why.
The Rule applies to requests for medical records from medical doctors and other healthcare practitioners. It’s promulgated by the Florida Board of Medicine, and it was drafted in 1987. At that time, it included only one per-page rate that applied to all requesters: $1.00 for the first 25 pages, and $0.25 for all pages in excess of 25 (we’ll refer to this as the “patient rate”). In 2009, the Rule was revised so the foregoing rate applied only to patients and governmental entities. The Board also created a separate rate – $1.00 per page for all pages – to apply to all other entities (we’ll refer to this as the “other entities rate”). These rates remain in effect today.
In 2012, the Board proposed to amend the Rule to specifically address fees for medical records stored in electronic form. This means that, when it set the per-page rates in 1987 and 2009 – i.e., the ones that still apply now – the Board was considering only paper records. Unfortunately, in response to this proposition, the Board went in an unexpected direction; rather than create separate fees for paper and electronic records – you know, to incorporate the cost-effectiveness of the latter – it proposed to set forth a single fee to apply to “the reproduction of medical records stored and delivered in any format or medium.”
The problematic decisions didn’t stop there. Once the Board decided not to distinguish between paper and electronic records, it then had to decide which per-page rate would apply to both forms – the lower patient rate or the higher other entities rate. It shouldn’t surprise you that the Board went with the latter. That’s right – the Board chose to eliminate the patient rate altogether. This means that the fee for 500 pages of medical records would more than triple, going from $143.75 to $500.00.
Fortunately, we can let out a collective sigh of relief at the fact that these changes remain only “proposed” at this time. In order to take effect, they must be ratified by the Legislature. And although they’ve been sent to the Legislature on multiple occasions, no action has been taken on them yet; they remain “adopted, but not effective”.
But if you still can’t help but worry about these proposed changes, the following PSA is for you: at its meeting on October 2, 2020, the Board will decide whether to send the proposed changes to the Legislature for the 2021 session. (Also, the Board itself invites “interested parties” to provide comments on matters before it.)
Update (and good news): we’re happy to report that, at its meeting on October 2, 2020, the Board of Medicine voted not to send the proposed changes to Rule 64B8-10.003 to the Legislature for the 2021 session.