“Adopted But Not Yet Effective” Rule On Charges For Medical Records

Personal Injury

Daniel R. Fernandez and his attorney, Dax J. Lonetto, Sr., have taken their appeal of an administrative decision on the cost of medical records to the Florida Supreme Court in Fernandez v. Department of Health, et al., SC17-1165.

This case began when Healthport Technologies, which is a company that almost exclusively provides copies of medical records on behalf of medical providers to patients, attorneys, and insurance companies who request such records.  The dispute involved in this case is whether the maximum amount that they can charge is $1.00 per page for all pages (because of a recent amendment to the rule) or whether the old rule must be followed until the Florida Legislature approves the amendment ($1.00 per page for the first 25 pages and $0.25 per page thereafter).

“Adopted But Not Effective” – What Does That Mean?

Partially in response to the HITECH Act, which was supposed to allow patients and their lawyers to obtain electronic copies of medical records for the mere cost of placing those records on a CD or disc, the Florida Board of Medicine adopted an amendment to rule 64B8-10.003, F.A.C.  This amendment sets the price of obtaining a copy of medical records in any format at $1.00 per pages for all pages from anyone who may request such records.  As mentioned above, this amendment increases the costs of medical records by $0.75 per page and can be very significant depending on the number of records that exist.

However, in order to become law in the State of Florida, administrative rules that increase regulatory costs are required by section 120.541, Fla. Stat. to be ratified by the Florida Legislature as clearly defined by the following language in the statute itself:

“…the rule may not take effect until it is ratified by the Legislature.”

So far, the Senate and House have not ratified this rule.  Therefore, this rule has been adopted by the Board of Medicine but is not supposed to be effective because the Legislature has not exercised its statutory authority to approve of the rule due to the costs involved.

Despite HITECH, section 395.3025, Fla. Stat., continues to authorize hospitals in the State of Florida to charge $1.00 per page with no limit to anyone requesting records (However, a patient whose records are copied or searched for the purpose of continuing to receive medical care is not required to pay a charge for copying or for the search.)

Medical Records Have Become A Cottage Industry

This makes requesting medical records a very expensive endeavor for personal injury plaintiffs who need those records to prove their cases.  It is becoming more and more common for a simple ER visit to have 100 or more pages of records.  Therefore, getting the records for a simple ER visit can cost $100 or more and has been funding the cottage industry of copying medical records.

In Florida, all medical providers are legally required to make written records for treatment that has been provided.  In many hospitals and medical offices, the records are created electronically and are never printed for purposes of placing them in a file.  Such records are frequently never printed until a patient or legal representative requests a copy for purposes of bringing a lawsuit or insurance claim.

When that happens, companies such as Healthport have contracts that allow them to paginate and print records (as well as to charge) to give to the patient.  At $1.00 per page, this is lucrative business as many of the pages are merely filler and are meaningless.  Out of a stack of 100 pages of ER records, meaningful information is probably only on 5-10 pages while the rest are boilerplate, repeat information, or white space.

Appeals To First DCA and Florida Supreme Court

Following the administrative law judge’s decision, the First DCA took an appeal (case number 1D16-0050) of this issue and decided that the amendment to rule 64B8-10.003, Florida Adminstrative Code was “within the Board [of Medicine]’s rulemaking authority…” despite the clear requirement in section 120.541 that requires legislative ratification.  Mr. Fernandez and his attorney have boldly appealed this decision to the Florida Supreme Court for the good of the public and are to be commended for their courage on this issue.

Impact Of Decision By The Florida Supreme Court

“Adopted but not effective” has a ring to it much like “separate but equal” from the landmark U.S. Supreme Court decision in Brown v. Board of Education and overruling Plessy v. Ferguson.  Just like “separate” cannot be “equal,” “adopted” cannot be the same as “effective” if the Legislature must vote to make it effective.  These are fundamental checks and balances within our system of government.

Medical records are a multi-million (if not billion) dollar business.  These medical records companies are making big money from medical records and are paying hospitals and medical offices for the privilege of being the exclusive provider of their medical records.  In other words, selling medical records is a benefit to doctors and hospitals.  This is why the Board of Medicine has gone to such lengths to protect the right to charge so much for medical records.

This is yet another example of low-publicity corruption within the institutions of government.  This is not the type of issue that you will see people protesting in the streets about or politicians debating in the next major election.  However, the law clearly states that the Legislature gets the final say on administrative rules that create regulations that have a significant to comply with.  Further, the federal HITECH act was passed so that the cost of obtaining medical records would be reasonable for patients and attorneys.

So Why Is This Happening?

Loopholes in the law allow doctors and hospitals to skirt compliance with HITECH and the spirit of the law only to go back to the business of charging by the page for these records.  Most modern hospitals and medical practices have already switched over to electronic medical records.  The cost of producing a CD, disc, flash drive, or a link/portal on a website for medical records to download costs very little after the infrastructure to do so is already there.  This is why change needs to occur so that people can have reasonable access to their medical records.

So What Should Be Done?

The $1.00 per page rule should be completely eliminated altogether to solve this problem.  As mentioned above, most hospitals already have an electronic medical records system and can easily generate a PDF file or create specific login credentials so that patients can privately access their medical records.  The cost of doing so is merely the cost of an employee to click a mouse to authorize that the request for records is legitimate.

Access to patient records are necessary for patients to bring lawsuits and insurance claims for personal injury, car accident, product liability, and medical malpractice cases.  Without these records, you cannot have an expert determine whether there was a breach in the standard of care in order to meet medical malpractice pre-suit notice requirements.

Copies of medical records are usually considered a “cost” for purposes of litigation.

It is also necessary for insurance companies to conduct audits for improper billing and eliminating fraud.  For a person who has stayed several months in the hospital, with hundreds of pages being generated every day, may have 10,000 or more pages of medical records.

Contact An Attorney If You Need Help With Your Claim

You should not let the cost of medical records deter you from bringing your claim.  If you are unable to obtain your medical records that you need to bring a claim, you should contact a personal injury attorney to get the help you need.  There have been occasions where an objection to the bill for copies or pointing out where these companies have not complied with the law will cause them to give you the records for very little or no cost.  Your records might also be obtainable without cost if you can establish a basis that they are necessary for continuing medical care.  Contact us today for your free personal injury or medical malpractice consultation.

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