In case you couldn’t tell from our previous posts, the Ciox Health, LLC v. Azar opinion has inspired us to take a deep dive into Florida law governing fees for medical records sent via third-party directive – in particular, Rule 64B8-10.003, Florida Administrative Code (“the Rule”). Believe it or not, the Rule has spurred litigation since 2012, largely because it’s inconsistent with Section 456.057, Florida Statutes (“the Statute”). It’s important to explain that complicated relationship before we get to the good stuff (i.e., the litigation, of course).
The Statute governs the ownership, control and disclosure of medical records and identifies the persons who are entitled to mandatory disclosures. Specifically, under subsection (6), a healthcare practitioner must furnish a patient’s medical records upon the request of the patient or her legal representative. Thus, the Statute explicitly recognizes the authority of the legal representative to request and receive the patient’s medical records on behalf of the patient.
Subsection (17) of the Statute permits a fee for furnishing medical records. It starts off well, limiting the fee to “no more than the actual cost of copying, including reasonable staff time . . .” And if the legislature had stopped there, we’d probably be in a better position now!
But it didn’t. The Statute adds, “. . . or the amount specified in administrative rule by the appropriate board.” These 11 words have caused 8 years’ worth of litigation and counting. Indeed, using the authority granted therein, the Florida Board of Medicine promulgated the Rule; but, in doing so, the Board failed to recognize the authority of the patient’s legal representative in the same way that the Statute does. This failure makes the Statute and the Rule inconsistent enough to have caused at least 3 lawsuits thus far.
Specifically, in the Rule, the Board created 2 per-page rates that apply to different groups of recipients. The lower rate is “for patients and governmental entities,” and the higher rate is “for other entities.” You’ll notice that neither rate explicitly applies nor refers to legal representatives.
Further complicating the issue, the Board went on to define “legal representative” in a separate rule, where they defined it specifically “for the purpose of Section 456.057” – i.e., the Statute, which authorizes the patient’s legal representative to request and receive the patient’s medical records. Again, the Board did this without identifying which rate applies to legal representatives.
So what does all this boil down to? Well, in short, you should fall into 1 of 2 camps: (1) you read the Rule in a vacuum and maintain that, because the patient rate does not explicitly apply to “legal representatives,” they’re subject to the other entities rate; or (2) you read the Rule in conjunction with the Statute and maintain that, when legal representatives request and receive their clients’ medical records, the records are “for patients,” and thus legal representatives are entitled to the patient rate.
We know what camp we’re in. Read our next post to find out where Florida judges are camping.