When you represent the injured our investigation always begins with the medical records. That sometimes means a battle with health care providers to provide the records. It’s not uncommon for patients, their family members, or estate representatives to get the run around, be ignored, or simply lied to about whether the law allows them to provide the records. When this happen it’s no surprise people become quickly frustrated. Some folks simply give up. Remember that’s what the nursing home or hospital wants. Next time this happens to you, let us show you how to make a medical records request in Tampa, Lakeland, Winter Haven or Orlando. The good news is that both the law and the suggestions apply anywhere in Florida.
ROAD BLOCK ONE – YOU ARE NOT AUTHORIZED TO REQUEST THE RECORDS
First, let’s arm you with the law in case someone tries to steer you in the wrong direction. The most common complaint we receive from our Lakeland, Winter Haven, and Orlando nursing home clients is when they wish to request their loved one’s nursing home medical records after they have passed away. To many times, whether it’s through a lack of knowledge or intentionally, a records custodian at a nursing home will tell a family member they need to open an estate in order to request the records. In Florida, that’s simply not the case. The next time someone at a facility suggests that’s the case you can quote from this statute:
Florida Statute 400.145 Copies of records of care and treatment of resident.—
SECTION 1
(1) Upon receipt of a written request that complies with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and this section, a nursing home facility shall furnish to a competent resident, or to a representative of that resident who is authorized to make requests for the resident’s records under HIPAA or subsection (2), copies of the resident’s paper and electronic records that are in possession of the facility.
The facility shall provide the requested records within 14 working days after receipt of a request relating to a current resident or within 30 working days after receipt of a request relating to a former resident.
Section 2 is the important section for those requesting records for a loved one who passed away in a nursing home. It allows a family member to request the medical records if one they were named in the last will as the executor or they are a surviving spouse, child or parent. Often the person designated in the death certificate as the nearest relative will also qualify.
SECTION 2
(2) Requests for a deceased resident’s medical records under this section may be made by:
(b) A person designated by the resident to act as his or her personal representative in a last will
(c) If no judicial appointment has been made as provided in paragraph (a) or no person has been designated by the resident in a last will as provided in paragraph (b), only the following individuals:
1. A surviving spouse.
2. If there is no surviving spouse, a surviving child of the resident.
3. If there is no surviving spouse or child, a parent of the resident.
ROAD BLOCK TWO- HIGH COSTS OF MEDICAL RECORDS
Now that we’ve tackled their first road block, let’s talk about the second. We represented a family in a Nursing Home Neglect case in Winter Haven who requested their medical records from the facility. They received a bill for several hundreds of dollars. We’ve had clients who received the same sticker shock from Lakeland nursing homes as well as Orlando nursing homes. Faced with a bill they can’t possibly pay many families end their quest for answers. Don’t.
Less than 10 years ago Congress passed the HITECH Act. The law requires nursing homes and hospitals to provide every resident, patient, or authorized person a copy of the patient’s electronic health records, in a format of their choice, at a reasonable cost. Additionally, the law allows patients to direct their health care provider to send a copy of their electronic health record to any party they designate, including their attorney. HITECH Act, 42 USC 17935(e).
Here’s the good news. Where before the nursing homes in Orlando, Winter Haven and Lakeland would use sticker shock to stall neglect investigations, now they can only charge the labor for copying (not locating records), supplies (such as portable media), and postage. Providers may also charge a flat fee of $6.50.
A nursing home medical records custodian who does not know the law may still argue that Florida law allows them to charge $1 per page. The HITECH Act, however, overrules this Florida law.
ROAD BLOCK THREE- NOT THE CORRECT AUTHORIZATION
The last and by far the most frustrating delay tactics is you did not provide the correct authorization or the authorization is missing information or you have to use their authorization. Thankfully the law provides the minimum necessary to get around these stall methods.
All that is required is
- The individual’s letter must be in writing,
- clearly designate the recipient of the records,
- be signed by the individual.
(HITECH Act, 42 CFR §17935(e))
Here is an example that you can use to assist you in pursing investigation on behalf of your loved one if you suspect they suffered nursing home neglect in a nursing home in Tampa, Lakeland, Winter Haven or Orlando.
Once they receive a HITECH medical records request a nursing home or hospital must respond within 30 days after the request is received. See 45 CFR 164.524 (b) (2) (i).
SAMPLE
HITECH RECORDS REQUEST
Re: XX [patient name]
DOB: XX [patient date of birth]
Dear Records Custodian [name of health care provider]:
Use applicable [I am a patient of XXX] or [I am a family member of XXX and am authorized under Florida law].
I request copies of all of medical records covering the following time period.
FROM: XXXX TO: XXXXX
Please provide all records in electronic format only using Adobe Acrobat pdf format.
Please send the electronic records to my attention at the following address:
Use Your Address or Your Attorney’s Address
_____________________ ___________________
CLIENT Date