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A lawsuit has been filed against HealthAlliance Hospital and Ciox Health, its health record management vendor, for denying a widow from obtaining her deceased husband’s medical records.
Sherry Russell, 62, from Woodstock NY, lost her husband of 42 years to lung cancer in October 2020. Mr. Russell visited HealthAlliance Hospital: Broadway Campus for a chest x-ray in March 2017 but lung cancer was not diagnosed. The cancer diagnosis came two years later when the tumor was 2 inches in diameter and it was too late to provide treatment.
Mrs. Russell believes the radiologist failed to identify the tumor on the x-ray, resulting in a misdiagnosis. Had the tumor been found earlier, it is possible that treatment could have been provided in time to save her husband’s life.
Mrs. Russell requested a copy of her husband’s medical records from HealthAlliance Hospital in order to obtain a copy of the chest x-ray report to support her malpractice lawsuit against the hospital over the failure to diagnose lung cancer; however, she has been unable to obtain a copy of the report.
Under HIPAA, patients are allowed to obtain a copy of their medical records from their healthcare providers. The HITECH Act of 2009 amended 164.510(b) of HIPAA to “permit covered entities to disclose a decedent’s protected health information to family members and others who were involved in the care or payment for care of the decedent prior to death, unless doing so is inconsistent with prior expressed preference of the individual that is known to the covered entity.”
When a request is made to obtain a copy of a person’s medical records from a healthcare provider, copies of paper records and electronic records must be provided. The provider can charge a reasonable, cost-based fee for providing copies, which should be provided in the format of the patient’s choosing, if it is technically feasible for a provider to release records in that format. Hospitals can receive thousands of requests for copies of medical records, so many choose to use a health record management vendor to manage those requests, in this case, Ciox Health.
The medical records lawsuit claims that under the federal HITECH Act of 2009, Mrs. Russell is entitled to a copy of her husband’s medical records and that the hospital and Ciox are only permitted to charge $6.50 for providing those records. The lawsuit also alleges both parties have been unresponsive and have been difficult to deal with. When both parties did respond to requests, Mrs. Russell was informed that it was only possible to provide a copy of paper records, not any electronic health records, and Ciox said it charges 75 cents per page for providing those records.
“[Mrs.] Russell can’t even determine the name of the correct physician liable for wrongdoing, without the medical records,” said Sherry Russel’s lawyer, John Fisher. “HealthAlliance Hospital, the very entity that has wronged her, is continuing to wrong her by stonewalling her.” Due to the statute of limitations in New York, the malpractice lawsuit must be filed by Friday this week. Fisher said that the malpractice lawsuit would be filed, even if the medical records are not provided.
Fisher is also seeking class action status for the medical records lawsuit against HealthAlliance Hospital and Ciox Health and claims he has dozens of clients that have similarly faced difficulties exercising their HIPAA Right to obtain medical records from HealthAlliance Hospital and Ciox Health.
The issue of charging excessive amounts for copies of medical records was addressed by the HHS in guidance on fees issued in 2016. The HHS confirmed that a $6.50 flat fee can be charged for providing copies of medical records, although it is also possible to charge average labor costs or actual costs for providing a copy to a third party. The HHS also recently launched a HIPAA Right of Access Initiative to vigorously enforce compliance with this important right of HIPAA, and has already issued two financial penalties over the failure to honor this right.
Ciox Health is no stranger to legal action over medical record access. A federal lawsuit was filed against Ciox Health and 62 hospitals in Indiana over the falsification of records and for participating in a kickback scheme involving overbilling for releasing patient EHRs, although the case was dropped. In 2018, Milwaukee-based Aurora Health Care and Ciox Health settled a class-action lawsuit alleging overcharging for medical record requests. A predecessor company of Ciox Health had charged an average fee of $22.58 for providing copies of health records. A $35.4 million settlement was proposed and Alpharetta, Georgia-based Ciox Health agreed to make the funds available to cover claims submitted by patients.
In January 2018, Ciox Health filed a lawsuit against the HHS to stop HHS enforcement of the HIPAA Right of Access Rule based on the 2016 changes, claiming the HHS updates were “irrational, arbitrary, capricious and absurd.” Ciox argued, “a $6.50 flat fee that was drawn from thin air and bears no rational relationship to the actual costs associated with processing such requests.”
In January 2020, a federal judge ruled against the HHS stating that the fee limitations only apply to an individual’s right of access, and not to requests for copies of medical records from third parties, such as attorneys.