Trial Magazine

Obtaining your clients’ medical records is usually expensive, but the Health Information Technology for Economic and Clinical Health Act (HITECH) allows you to procure them for the actual cost of production. HITECH applies to traditional medical providers and contracted copying entities, but it only covers electronic medical records—not psychotherapy records. Here’s how you can streamline the request process under HITECH.

Request letter. You can be designated to receive the records, but the written request should come directly from and be signed by the client. The letter should not be on your letterhead. Have your clients sign multiple HITECH requests, and be ready for unexpected additional requests. Many providers try to give you paper copies so they can charge higher fees—reiterate that the records should be in electronic format with no encryption. Ask the provider to notify you immediately if the records are only available in hard copy.

Thirty-day rule. The provider must turn over the records within 30 days of receiving the request. If a ­provider goes back and forth with you about the ­production format, charges, or other issues, it is wasting its 30 days.

Guide the process and follow up. A provider may argue that it needs a detailed HIPPA release, but HITECH is a direct patient request. If the provider or copy service says that it will only send records to the patient directly, refer to §(e)(1) of HITECH. If you have not received the records after two weeks, call to ask about the status.

If the provider refuses to produce the records electronically or asks for prepayment beyond a reasonable cost, send a letter that references the act’s key language. You also may want to speak to someone in upper management who may appreciate the penalties for noncompliance or file a complaint with the U.S. Department of Health and Human Services, Civil Rights Division.

Tiana Hinnant is an attorney in Pawleys Island, S.C. She can be reached at tianamhinnant@gmail.com.