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By now most healthcare professionals have been forced to deal with attorney requestors misusing the HHS/OCR guidance on Right to Access in order to obtain copies of their clients’ medical records for litigation purposes at the nominal rates allowed under the Privacy Rule. The Right to Access medical records does not provide attorneys the right to receive an executed Custodian of Records Affidavit that is intended for litigation purposes.

The spirit and intent of HIPAA-defined Right to Access is to maintain high access and low costs for patients – not attorneys.  The unfortunate consequence of this misuse is an increased volume of calls from attorneys threatening medical practices when it is the attorneys who do not understand the intricacies of HIPAA, the HITECH Act, and the time and energy invested into producing compliant records.  Ultimately, when attorneys misuse the right granted to patients for a copy of their records, someone has to pay the costs to produce those records, and medical practices and providers are left taking a loss on the unpaid portion of the bill.

Since the HHS/OCR guidance in 2016, the health information management industry has seen an increase in attorneys requesting records under the guise of Right to Access and then contacting medical offices asking where the missing Custodian of Records Affidavit is located.  They often say “didn’t you read my request!?”.  These requests are familiar to medical staff because they are litigation requests with a twist – they include all the traditional elements of an attorney request with an additional letter from the attorney masquerading as a patient letter because it has been signed by the patient.

But what is a Custodian of Records and what’s the purpose of the affidavit? The Custodian of Records is the person designated by the Covered Entity responsible for keeping records in the ordinary course of business.  In litigation, business records, such as medical records, are often allowed into evidence at trial with an affidavit signed by the Custodian of Records which states that the records are true and accurate, complete and maintained in the ordinary course of business.  This affidavit is standard and similar across most jurisdictions.  This Custodian of Records Affidavit saves the attorney the time and expense of hauling the Custodian of Records into Court to state under oath the same statements listed within the text of the affidavit.  However, most attorneys demand this affidavit be completed and signed before a Notary Public when there is no pending court case or when the case will not actually go to trial (and the records will never be seen by a judge or jury).

Completion of a Custodian of Records affidavit takes additional time and resources.  It is not appropriate for attorneys to submit requests for an affidavit accompanied by a request under the guise of a Right to Access request truly for the patient.  The nominal Right to Access fees allowed under the guidance do not begin to cover the actual costs of producing records, nor additional work like completing affidavits.  With per physician operating losses growing by 7.5% from 2016 to 2017 alone, it is irresponsible to expect practices and providers to shoulder the additional burden of this cost when HIPAA allows for reasonable fees under a compliant authorization from attorneys.

Supporting reasonable and responsible PHI exchange, like a patient’s right to access their medical records and interoperability, is not mutually exclusive with requesting attorneys follow proper established channels for their litigation requests.  DataFile will continue to monitor HHS/OCR guidance and will provide updates as more information is released.

If you’d like more information, check out our website for more articles on Right to Access or our White Paper on the burdens Right to Access creates for providers and practices.  If you’d like more information on getting rid of the time and energy burden of these requests all together, request a demo today.

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