In our last post, we discussed an unintended yet inevitable consequence of the Ciox Health, LLC v. Azar opinion – the prohibitive effect of excessive fees for medical records on personal injury lawsuits. This effect is due, in large part, to the post-Azar shift to using state laws to calculate fees for medical records sent via third-party directive, coupled with the outdatedness of those state laws. In this post, we’ll explain what this shift means in Florida.
As a result of Azar, there’s no longer any federal guidance as to the fees for medical records sent via third-party directive. In the absence of such federal guidance, state laws have taken center stage. Indeed, since Azar, release-of-information (ROI) companies have been consistently applying state-mandated rates to third-party directives. But because federal law has preempted state law in this arena for years, many state laws are outdated, particularly from a technological perspective.
Florida is a great example. There’s a handful of laws and rules that govern fees for medical records, but the most commonly applicable ones are Section 395.3025, Florida Statutes, which applies to hospitals, and Rule 64B8-10.003, Florida Administrative Code, which applies to medical doctors (and other healthcare practitioners). The portions of Section 395.3025 and Rule 64B8-10.003 that set forth fees for medical records were drafted in 1992 and 1987, respectively, and haven’t changed much since then. So, on average, they’re about 3 decades old!
Here’s another indicator of their age: Section 395.3025 refers to “nonpaper” records in the form of microfiche and microfilm . We’re willing to bet that some attorneys reading this post are too young to know what microfiche and microfilm are! But we digress. What’s important to note is that, for third-party directives, both Section 395.3025 and Rule 64B8-10.003 permit fees to be calculated at $1.00 per page.
At first glance, $1.00 per page doesn’t seem that bad. People will happily pay $1.00 for a lot of things, like coffee from a fast food joint. But, unlike subpar coffee, medical records add up quickly. For instance, in one of our client’s cases, a single hospital stay resulted in more than 40,000 pages of medical records! Put simply, the per-page rates can get out of hand with just one request.
But here’s the other (and harder) kicker – the $1.00 per-page rate applies even if the medical records are maintained and sent electronically. So you better believe that, even when the 40,000-plus pages of medical records were sent through an online portal, the ROI company still charged more than $42,000 for them (including sales tax and other fees, of course). Despite that the $42,000-plus fee shocks the conscience, it’s nevertheless lawful in Florida now.
Unfortunately, it looks like we may be stuck here for a while. In fact, although changes have recently been proposed to both the Statute and the Rule, they did not affect the $1.00 per-page rates. Stay tuned for more on these proposed changes in our next post. Until then, we’d love to hear your thoughts – contact us or give us a call.