Clarifying the HITECH Act and Answers to Frequent Questions

Following our recent article on the HITECH Act, we have received lots of questions about the federal HITECH Act and how it applies in Washington State for healthcare providers responding to patient requests for electronic records.

Since the HITECH Act was implemented in 2010, there has been widespread public uncertainty about how to implement it.  The U.S. Department for Health and Human Services (DHHS) has worked several times to clear up key pieces of the law, but unfortunately this has sometimes to lead to more confusion, not less.[1]  Our article last month may have raised further questions.  We are here to clarify.

We understand and share the frustration felt by many healthcare professionals and their administrators regarding the rule changes in responding to records requests directly from a patient.  Please understand that we did not create the law and are only delivering the message.  In other words, “Don’t shoot the messenger!”

First, here are a few key principles:

  1. HITECH only applies to records requests from a patient, when the request comes from the patient directly and is in writing;
  2. HITECH does apply when the patient requests that their medical records be sent to a designated representative, including the patient’s attorney;
  3. HITECH does not apply when an attorney requests the patient’s medical records;
  4. When the request is in writing from the patient, the healthcare professional must comply with HITECH and its rules
  5. When the request is from any other source, HITECH does not apply, and the healthcare professional can charge under state law and its rules, including the previously standard handling fee and per-page charge.

Here are the questions we have received and our responses:

  1. I have a request from a patient asking for a copy of their records in electronic format. Can I charge the patient a handling fee and per-page copy fee?

No.  The HITECH Act is a federal law, and federal law preempts state law.  The HITECH Act states that you can charge a flat fee of $6.50.  Alternatively, a provider can charge a “reasonable, cost-based fee” for producing electronic records when it is requested directly from the patient.  That means the labor cost to you of producing records, which would be your labor cost to put the records onto a CD, plus postage.

In our answer to the question below, we give an example of what the costs look like, and why many providers are using the $6.50 flat fee charge and not working with the alternative.

  1. The patient requested electronic records, so I scanned the paper records and put them on a CD. What can I charge for this?

Whether you have to scan paper records into an electronic version, or drag and drop already-electronic records onto a disc, you may only charge the patient a flat fee of $6.50.  HITECH does give you a second option, which is to charge a “reasonable, cost-based fee” instead of the $6.50, for the actual labor cost to produce the electronic records.  This would involve the labor-related cost to your business in scanning the paper record, uploading the record to a cloud-based system, or time spent creating and sending out a CD.  For example, if you pay someone on your staff $20.00 an hour to process records requests and they spend 10 minutes on the request, the labor cost to you is $3.33. Then, you can add on the cost of the CD, which is about .20 cents,[2] and postage.

However, if you intend to charge something other than the flat fee, you must disclose those charges to the patient before sending the records.  That is why most providers are choosing to charge the flat $6.50 fee for all requests, as it is simpler and more cost-effective to have one unified procedure for all requests. [3]

  1. The patient letter also asked for a verification that I have produced all the records. Can I charge the State administrative fee for preparing that?

No. The HITECH Act does not allow a provider to charge for the verification of the patient’s electronic record. DHHS has expressly stated that a provider cannot charge and administrative fee to verify the patient record.

  1. I don’t keep my records in electronic form, so I can charge the old state per-page and handling fees, right?

Here is another answer you will not like: no.  The HITECH Act requires you to comply with a request for records in electronic format if it is readily producible electronically.  That means you must scan the paper records (typically into .pdf form) and transfer them onto a CD or flash drive.

If you have absolutely no ability to produce the records in any kind of electronic format, then (and only then) can you provide the patient with a hard copy of the record.  Even in that case, you still must comply with HITECH in how you charge the patient.  You cannot charge the handling and per-page fee allowed under state law.  You may only charge for your actual labor costs and the cost of supplies.

  1. I have seen this patient for quite some time and have both paper records and electronic records. Can I charge the patient a handling fee and per-page copy fee for copying the paper records? 

No.  Under the HITECH Act, the patient has a broad right to all records maintained by the provider, and the provider must scan any paper records into electronic format at the patient’s request.  You cannot charge a per page fee to scan your paper records.  Nor can you make copies of the paper records if you are able to scan those records as a .pdf.

  1. I got a letter from the patient asking for their records in electronic format, but what do I do about x-ray films? I can’t scan those.

In this situation, it would be acceptable to charge the client the cost to you of reproducing the films and putting them onto a CD because the Act states that the records be “readily producible” in the manner requested.

Our “best practices” recommendation is to get a quote for this cost from a vendor and then advise the patient of the cost and get their approval before you proceed.

  1. The patient (and not the patient’s attorney) sent me a letter asking for their records in electronic format, but there is no HIPAA form. Do I have to comply?

Yes.  When you receive a letter signed by the patient asking for records, the patient’s signature serves as the authorization.  No HIPAA release is required.

  1. I outsource all of my records requests so I don’t have to deal with this issue. I can charge the patient for the cost to me for the third party vendor to copy the records, right?

No.  HITECH does not allow you to pass the costs of a third party vendor to copy/scan records on to your patient.

  1. I received a letter signed by the patient asking that I send the electronic record to his/her attorney. Is this legal?

This is indeed legal.  A provider must send the records to wherever the patient designates, even your patient’s attorney.  However, the patient’s request must be in writing and signed by the patient.

  1. My patient wants me to email her electronic records directly to her attorney, but I am worried this is not secure. What if the data is breached or hacked?  Am I responsible?

You are not responsible for disclosure of information while in transmission to the person or entity requested by the patient.  You are also not responsible for safeguarding the information once it is delivered.  However, you are responsible if you type in the wrong email address when transmitting the information.

  1. What is the deadline to respond to a request for electronic records?

You have 30 days to comply with the request.  If you cannot comply within this time period, you have another 30 days, but must notify the patient of the reason for the delay within the initial 30 days.

All health care providers should anticipate that attorneys and their clients will be requesting electronic records per the HITECH ACT.

If the information in this article does not answer your questions, then email us at info@adlergiersch.com.  We welcome other questions and will continue to share our information with the health care community.

 


[1] DHHS has added and modified their FAQ page several times this year, most recently in May of this year.  See: https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html

[2] You can get a 100 pack of CDs on Amazon for less than $20.00 or .20 cents per CD.

[3] Beware, as an ominous opinion from DHHS is that as technology advances, the labor costs to the provider for complying with a request should dwindle down to nothing.

How Social Media Sites Can Be Used To Damage a Personal Injury Case

Social.Media.Personal.InjuryJacob W. Gent, Attorney at Law

According to a recent study by the Pew Research Center, eight out of ten American adults online have used social media websites such as Facebook, Instagram, Twitter, and LinkedIn at some point in their lives.[1]  Social media and networking sites allow users to stay connected with family, friends, and professional colleagues and keep informed on current events.  Nearly half of American users relied on social media as a news source for information regarding the 2016 presidential election.[2]  Two out of three adults online have a profile on at least one social media site.[3]  Whether we are posting about personal events with family and friends, seeking employment, or using social media to simply take a mental break from work, Americans are sharing a lot of personal information online about ourselves, our loved ones, colleagues, and acquaintances.

Increased use of social media has led to a rapid decline in the user’s relative anonymity and privacy.  Social media makes it easy to share intimate details of all aspects of life, so using social media without considering how it could be used by big business can be potentially harmful.  This is particularly true for people who have an open personal injury claim.  More and more, we see social media data being used and exploited by insurance companies against people who are recovering from traumatic injury.  As a result, social media is playing an increasingly influential role in litigation involving personal injury cases.

Be aware that when you post online, you do not retain possession or control of the information once posted.  According the terms and conditions of use for most social media sites, any information posted online becomes the property of the website or app.  Once posted, a site may share or release the information with a third party, including an insurance company.

Information posted online is not protected by assurances of privacy from the social media website or the attorney-client privilege.  Insurance adjusters and defense attorneys will use anything they can find to attack the credibility of an injured person and undermine their claim.

Even before a lawsuit is filed, insurance adjusters routinely troll the internet searching for photos and status updates showing the injured party engaged in physical demanding activities (think: dancing, hiking, rock climbing, and even playing with grandchildren).  This can become fodder for the insurer to try to discredit the injuries claimed.  Comments and posts by friends or family may also be used to embarrass the injured person or demean their character (think: references to partying, goofy photos, or angry or emotional status updates).  Websites and apps such as Foursquare and Facebook that track an individual’s movement or lets them “check-in” to locations can also provide information about a person’s activities that can be used to question the validity of their injuries.

Since most social media sites save and archive all information posted by the user essentially forever, comments about a sore neck or back made any time prior to the injury can be used to undermine a claim.  What’s more, after a lawsuit is filed, a defense attorney can obtain a court order requiring an injured person to turn over all archived social media data, giving the defense attorney and insurance company unfettered access to your archived online shopping habits, personal contact with friends and family, and comments on other’s photos and posts.  Even private messages are fair game.

While certain sites like Facebook permit users to control and restrict the availability of their personal information online through the use of privacy settings, many users don’t take the necessary steps to protect themselves and most are challenged when it comes to managing those settings.   About half of all social media users report at least “some difficulty” in managing privacy controls.  Interestingly, users with higher education (college graduates and above) are more likely to report difficulty in managing the privacy controls for their online profiles, while those with less education report less trouble.[4]  Regardless of an individual’s privacy settings, any personal information, including pictures, status updates, comments, shared links to other websites, and so on, may be accessible to third parties like insurance companies, without the user’s knowledge or consent.

For our clients who use social media, we advise the following:

  1. “Go dark” – refrain from using social media entirely while your claim is open. Ask friends, family, and co-workers not to tag you in photos or mention you in comments until your case resolves.  Encourage them to also increase their own privacy settings as a good way to keep their own information private.
  2. Set your privacy settings to the highest levels, where only the people you allow can see your information. (For example, select “Only Friends” under the “Search Visibility” profile option on Facebook, remove your “Interests,” and uncheck the box for “Public Search Listing” in your internet privacy settings for Google.)
  3. Do not delete social media accounts or any you information posted prior to retaining an attorney. Insurance defense attorneys may accuse you of destroying potential evidence in the case.
  4. Do not post or send messages or photos about your injuries, treatment, or the cause of your injuries.
  5. Do not accept friend requests from anyone that you do not know until the case resolves. Defense attorneys have been known to use persons not directly involved in the case to gain access to an injured person’s social media sites through “friend requests” and the like.
  6. And finally, adopt our motto: “Dance like no one is watching. Post on social media like it will be used against you in court.”

[1] Pew Research Center, November 2016, “Social Media Update 2016”

[2] Id.

[3] Pew Research Center, February 2012, “Privacy Management on Social Media Sites.”

[4] Id.

Medical Records Copy Fees in Washington State Increases

By Melissa D. Carter, Attorney at Law

RCW 70.02.010(37) allows health care providers to charge fees for searching and duplicating health care records.  The law requires a biannual adjustment on those rates, and the Department of Health recently adopted new rates that become effective on September 7, 2017.

WAC 246-08-400 states that the fees a provider may now charge cannot exceed the fees listed below:

(1) Copying charge per page:

a. No more than one dollar and seventeen cents ($1.17) per page for the first thirty pages;

b.No more than eight-eight ($.88) cents per page for all other pages.

(2) Additional charges:

a. The provider can charge a twenty-six ($26.00) dollar clerical fee for searching and handling records;

b. If the provider personally edits confidential information from the record, as required by statute, the provider can charge the usual fee for a basic office visit.[1]

These new rates do not overrule or bypass the HITECH law, which prohibits a health care provider from charging the per page fee in Washington for paper copies if the electronic format is available.  At Adler Giersch PS, our offices have transitioned into an electronic record system and much prefer receiving records in an electronic format.  It saves time for us and money for our clients.

If you have any questions concerning the production or records, the new rates or how best to proceed with a request for records, please send us an email at info@adlergiersch.com.


[1] The revised law also discusses HIPPA-covered entities and what they may or may not charge under federal HIPAA.  The US Department of Health and Human Services offered guidance on what these allowable charges are here:https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html#newlyreleasedfaqs

[2] RCW 70.02.010 (37); WAC 246-08-400.

New Medical Study Connecting CTE to Sports Concussion

By Arthur D. Leritz, Attorney at Law

The law firm of Adler Giersch has been at the forefront of brain injury awareness and advocacy for many years with its founding partner, Richard H. Adler, as a local and national advocate for safety in youth sports.  He drafted legislation and organized a strong local coalition of doctors, sports organizations, insurers, and many others that led to the Zackary Lystedt Law, named after his client, the nation’s very first law designed to prevent traumatic brain injuries in student athletes by requiring school districts and nonprofit organizations using school facilities to adopt policies for management of concussion and head injury in youth sports.   Following the passage of Washington’s Lystedt Law, every state followed its core principles and now all 50 states have a mandatory removal and managed return to play protocol in place that is aimed at protecting youth athletes from sustaining life threatening head injuries while playing sports.

A recent medical study published in in the Journal of the American Medical Association (JAMA) shows that there remains ongoing need for awareness, education, implementation and enforcement of player safety to prevent traumatic brain injuries from youth sports to professional athletes.

On the professional sports level, the recent study looked at the brains donated for research by former NFL greats such as Hall of Famer Ken Stabler to journeyman lineman. We have all heard about Tiaina “Junior” Seau, former linebacker for the San Diego Chargers, Miami Dolphins, and the New England Patriots, who died May 2, 2012, from a self-inflicted gunshot to the chest.  Not to mention Terry Long, Andre Waters, Shane Dronett, David Duerson, and Ray Easterling, all of whom also ended their own lives.  Most recently, there was 31 year old wide receiver James Hardy, who died June 7, 2017, when he drowned in a river.   Hardy was a second round pick for the Buffalo Bills in 2008.  His death was recently ruled a suicide.[1]  While it has yet to be determined if Hardy had CTE, what is true for all the other athletes above is that autopsies confirmed the presence of CTE in every one of them.

Chronic traumatic encephalopathy (CTE) is a progressive neurodegenerative disease that has often been associated with repetitive blows to the head.  Early symptoms can be mild disorientation and headaches and progress to memory loss, erratic behavior, dementia, depression, and thoughts of suicide.  While this was commonly associated with boxing initially, research is showing that this is not just boxing but also football and other sports as well.

The new study published in JAMA suggest that participation in football may be related to the development of CTE.[2]  The researchers examined 202 brains of former deceased football players.  What they found was the presence of CTE in 177 players, or 87% of those studied.[3]  Of those studied, researchers found the most common cause of death for participants with mild CTE pathology was suicide (27%) and for those with severe CTE pathology was neurodegenerative (47%).    The study also found that cognitive problems were common in those diagnosed with CTE, with symptoms occurring in 85% of the mild cases and 95% in the severe cases.  Language and visuospatial symptoms occurred in 66 of the mild cases and 54% in severe cases.[4]

The donors to the brain bank program were primarily college and professional level players, even though there are many more players who only played on youth or high school teams.  Particularly noteworthy is that the severity of CTE pathology was distributed across the highest level of play from high school to professional players. All former high school players involved in the study had some level of CTE pathology, and the majority of former college (56%), semiprofessional (56%), Canadian Football League (86%), and NFL (86%) players had severe pathology.[5]

This study is important as it continues the public’s discussion about traumatic brain injury and roads that can lead to prevention and safety. Sports related head trauma is one cause of neuro-cognitive changes but so are other causes such as falls, motor vehicle crashes, bicycle, and pedestrian mishaps. It is clear from this study and others that rule changes are needed to make football and other sports that are known to cause brain injuries, such as girls’ soccer, more safe. The problem of brain damage showing up in NFL players later in life begins with youth sports.  This is why parents, athletes, coaches, and school administrators need to more fully embrace and enforce the core principles of Washington’s Lystedt Law.

 


[1] As reported in USA Today, July 19, 2017.

[2] Mez et al., “Clinical Evaluation of Chronic Traumatic Encephalopathy in Players of American Football,” JAMA. July 25, 2017;318(4):360-370. doi:10.1001/jama.2017.8334

[3] Ibid.

[4] Ibid

[5] Ibid.

Cold, Hard Math: The Rise of Artificial Intelligence in Insurance Claims Handling

By Steven J. Anglés, Attorney at Law

Recovering from a traumatic injury is often a slow process that unfolds in ways patients often can’t anticipate. The full extent of an injury, or the effectiveness of treatment might not be fully known for a long period of time, and only after the patient’s life has seen a roller coaster of personal and professional changes. The same can be said of navigating the insurance claims process. Coordinating insurance benefits, interpreting insurance contracts, and hoping for the end of health care, returning to full activities, and trying to find closure in an ongoing insurance claim can take years and test the patience of even the most reasonable people.

Recent technological changes are attempting to take all of these human variables and generate insurance claim outcomes in seconds, without involving humans at all. Over the past decades, insurance adjusters have increasingly used computer programs to settle personal injury claims in an attempt to save money and increase the speed of the claims process. But, the latest attempts to automate the claims process have gone much further by eliminating the need for claims adjusters through the use of artificial intelligence[1]. While this may seem like a reasonable approach for both insurance companies and patients, the use of artificial intelligence is likely to result in an extremely one-sided and arbitrary claims handling process that will undoubtedly reduce costs for insurance companies, while leaving injured patients with claims that aren’t evaluated in a meaningful way, or a way that fully takes into account how humans would respond to such a claim to resolve it.

In May of 2017, Zürich Insurance announced it was deploying artificial intelligence to evaluate personal injury claims after testing showed claims processing could take years’ worth of information and reduce it to a single decision in a matter of seconds. Insurance companies in Japan and Great Britain have begun doing the same, replacing staff members with sophisticated computer algorithms to perform the work previously done by humans.[2]  Computers using artificial intelligence, such as IBM’s “Watson” will be capable of reading medical documentation in order to collect information necessary for paying medical bills using factors such as medical histories, length of hospital stays, and surgical procedure names.  Cognitive technology could be used to review medical reports for evaluating personal injury claims-reducing review time of 10-100 page documents from 58 minutes down to five seconds.[3]  The system would also be able to check insurance claims against their corresponding insurance contracts to determine whether there are any coverage problems that need to be raised against customers.[4]

Large insurance companies are not the only businesses interested in the idea of expanding the use of artificial intelligence in the processing of claims.  There are an estimated 2,000 start-up companies centered around artificial intelligence, many of which are developing software and apps in order to replace human actuaries, reduce labor costs, and allegedly make more accurate predictions.[5]  Lemonade, for example, is a property and casualty insurance company funded by corporations such as Google that touts it can insure homeowners and renters in 90 seconds and pay out claims in 3 minutes through an app using a smart phone.[6]  Tractable is a London-based artificial intelligence corporation that promotes its ability to streamline automobile property damage repair payments by comparing uploaded photographs and repair estimates, reducing the cycle time from days and weeks to minutes, without involving a human claims handler.[7]  Yet another startup company, RightIndem, looks to put the injured party in charge of the entire claims process for motor vehicle collisions by inviting customers to make and process claims at “their pace” using their smart phone, tablet, or personal computer.[8]  The one constant among all of these companies is the promise to reduce claims “leakage,” a term used to describe the dollars lost through claims management “inefficiencies” that raise costs and lower profits for insurance companies.

While the use of artificial intelligence to process personal injury claims has been described as a “focused set of initiatives to improve customer experience and… effectiveness in [the] claims” function,[9] serious doubts remain about the ability of artificial intelligence to appreciate the very human impact, and unique nature, of each traumatic injury on the individual.  This artificial process also cannot replace or replicate the human behaviors, emotions and experiences that impact a judge or jury tasked with evaluating a personal injury claim in court. Even insurance adjusters at times have been forced to acknowledge the inherent limitations of mathematical formulas and computers in successfully evaluating and resolving personal injury claims.  In short, artificial intelligence is unlikely to fully appreciate the nuances that are part of each and every personal injury claim, and unique to each patient.  The attorneys and staff at the law firm of Adler Giersch remain committed to ensuring that our clients are never seen as just names and numbers on a piece of paper.  If you, your staff, or your patients have any questions regarding the processing of insurance benefits, feel free to reach out to us.

 


[1] “Artificial intelligence”, or, “machine learning”, is the theory and development of a computer system able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translating between languages. Oxford Dictionaries.

[2] An”algorithm” is a mathematical instruction that allows a computer to process information. As more and more algorithms are calculated, the computer can begin to learn on its own and propose solutions. Deangelis, Stephen F. “Artificial Intelligence: How Algorithms Make Systems Smart.” Wired, September 2014.

[3] “AI and Insurance: Are Claims Jobs in Danger?” Management, January 9, 2017.

[4] http://mainichi.jp/english/articles/20161230/p2a/00m/0na/005000c

[5] Nanalyze. “10 Artificial Intelligence Startups in Insurance.” Nanalyze, May 21, 2017.

[6] https://www.lemonade.com/faq#policy

[7] https://tractable.ai/products/insurance

[8] https://rightindem.com/

[9] “AI and Insurance: Are Claims Jobs in Danger?” Management, January 9, 2017.