In this series of blog posts – inspired by the recent Ciox Health, LLC v. Azar opinion – we previously discussed how Azar has adversely impacted the viability of many personal injury lawsuits by eliminating the ceiling on fees for medical records sent via third-party directive. This unintended yet inevitable effect has sent plaintiffs’ attorneys scrambling for solutions, and many have put their faith in the Final Rule of the 21st Century Cures Act. While the Final Rule will increase access to electronic health information (EHI), it won’t necessarily decrease the fees charged for such access.
The Final Rule was published on June 30, 2020. It prohibits “information blocking,” which is a practice that’s “likely to interfere with, prevent, or materially discourage access, exchange, or the use of electronic health information.” Surely, the practice of charging excessive fees for medical records that contain EHI should constitute information blocking under this broad definition. Indeed, the drafters recognized this possibility and addressed it by creating a Fees Exception.
Specifically, the Fees Exception allows fees that are “reasonably related to the costs of providing the type of access” to the EHI that was requested (among other types of fees). On the other hand, the Fees Exception does not allow fees prohibited by 45 C.F.R. § 164.524(c)(4) – which authorizes only “reasonable, cost-based” fees – or fees “based in any part on the electronic access of an individual’s EHI by the individual, their personal representative, or another person or entity designated by the individual.”
This last fees exception is the peg upon which plaintiffs’ attorney are hanging their hats. And we can see why – it seems so promising! If the client designates the attorney to access the EHI, and the attorney does so electronically, then voilà – no fee.
If only it was that easy. The definition of “electronic access” is the hurdle here. We won’t bore you with the details, but suffice it to say that the typical third-party directive process does not fit comfortably within the definition (think square peg, round hole).
And the hurdles don’t stop there. According to AHIOS, the Cures Act is deferential to the HIPAA Privacy Rule, meaning that the Cures Act does not operate to restrict fees otherwise allowable under the HIPAA Privacy Rule (and, by extension, the Azar ruling). Thus, charging such allowable fees will not result in information blocking. Of course, per Azar, those allowable fees now include the per-page rates that state laws permit healthcare providers to charge when patients direct the electronic transmission of their EHI to third parties.
Ultimately, the number and nature of these hurdles make us skeptical that the Final Rule is the silver lining to the dark cloud that is Azar. But we’re hopeful that you’ll find some inspiration from our other posts. And, of course, we’d be happy to brainstorm solutions with you. Just give us a call.