In our last post, we told you about the Florida Board of Medicine’s proposed changes to Rule 64B8-10.003, Florida Administrative Code (“the Rule”), which sets forth fees for medical records. Importantly, the proposed changes eliminate the lower “patient rate.” As a personal injury attorney, you may wonder how these proposed changes could affect you and your clients, particularly in a post-Azar world. We have some thoughts on that.
First, an important clarification: the elimination of the patient rate is irrelevant if your clients will make individual requests for access, and the records will be sent directly to them. That’s because, for such requests, the patient rate under HIPAA would apply and preempt the Rule. So, if your strategy in response to the Ciox Health, LLC v. Azar decision is to use such individual requests for access, then maybe the proposed changes to the Rule won’t trouble you as much.
In our experience, however, using individual requests for access is not a workable solution in the personal injury context. As such, using third-party directives will remain the primary and preferred way to get your clients’ medical records. Unfortunately, the elimination of the patient rate could affect the fees that apply to such directives.
To explain, we’ll need to go back in time – specifically, to the time before the enactment of the Department of Health and Human Services rule that was invalidated in Azar (as we unfortunately live in a world without that rule again). During that time, when a personal injury plaintiff asked her physicians to send her medical records to her attorney, the physicians applied the higher other entities rate to calculate the fees. Their theory was that, since the attorney is using the records, and the attorney is not the patient, the records must be for “another entity,” and thus the higher rate applies.
Based on the post-Azar invoices we’ve seen, Florida physicians are once again employing this theory. And if this theory makes sense to you, then you may still be wondering why the elimination of the patient rate is a big deal.
Well, this theory was successfully challenged in Allen v. Healthport Techs., LLC (which we’ll analyze in greater detail in a future post). In short, the court ruled that, when the patient asks her physician to send her medical records to her “legal representative,” the records are for the patient, and the lower patient rate applies. (Hallelujah!)
While the Allen rule unfortunately has no precedential effect, it’s nevertheless a promising step in the right direction, and (fingers crossed!) it may prove to be persuasive in a pending case in Palm Beach County (check out Mathews v. MD Now Medical Centers, Inc., Case No. 2013CA009428). But, since there’s a chance that this rule could one day apply to your clients’ third-party directives, the Board’s proposed elimination of the patient rate should raise some red flags.
Finally, an interesting tidbit: the Allen case was filed on August 20, 2012. About 2 months later, the Board proposed the changes to the Rule. We’ll let you draw your own conclusions.