The ACA provided enormous relief to individuals seeking access to their medical records. Under the ACA, providers are required to produce records in an electronic fashion and may only charge the cost of the media required for production. Previously, a medical record request for a patient with many records could cost thousands of dollars. That same request, under the ACA, typically cost twenty dollars - if a provider decides to charge at all.
Lately we have noticed many providers use third party contractors to produce their records. That is acceptable. However, those contractors are bound by the same law as the providers.
Despite that, CIOX Health, one of the largest medical record contractors, has taken to ignore the ACA and is demanding payment in hundreds if not thousands of dollars for a request. They are doing that based on one - only one - trial court decision in the District of Columbia. In that decision, the trial court found that a patient's request that the provider send their records to a third party (their own attorney) takes the request outside of the ACA and the patient may be charged for their own records without limit. The trial court did that - not because that is what the ACA says - but because more recent guidance issued by HHS to that effect was issued without following the procedures of the APA. (Administrative Procedure Act).
However, in the 9th Circuit, the states encompassing, Washington, Oregon, California, Arizona, Hawaii, Alaska, Idaho, Guam, Montana, and Nevada, the current state of the law is very clear: A patient can ask that their records be sent to their attorney and is entitled to the lower production fee under the ACA. The 9th Circuit in Webb v. Smart Document Solutions, 499 F.3d 1078 (9th Cir. 2007) held:
Our holding, however, in no way precludes attorneys from assisting their clients in accessing and obtaining their medical records without triggering the hefty fees… [I]t is circuitous, if not downright silly, to require an individual to request his own medical records and having received them, hand them to his lawyer.
Id. at 1089.
It is important to note that although Webb is a 9th Circuit (Federal) case, it is binding authority on the ACA in state court. Keep in mind, the ACA is Federal law. The 9th Circuit's interpretation of Federal law, is binding in the 9th Circuit and the states within it. Any objection that Webb only applies in Federal court is incorrect.
It may be that CIOX Health and other companies can rely on the DC trial court decision in states that are not in the 9th Circuit. However, the law of the 9th Circuit is the law of the 9th Circuit until it is not. Until CIOX or some other company successfully challenges Webb, it remains good law in the 9th Circuit.
This link will bring you to a letter we recently wrote on behalf of a client to CIOX on this issue. We express no ownership over that letter. Please feel free to copy or use it as you see fit to communicate to these third party billing companies that their practices of over-billing in the 9th Circuit are not appropriate.