HealthAlliance Hospital and its health record management vendor, Ciox Health, are facing a lawsuit for refusing to give a widow the medical records of her deceased husband.
In October 2020, the husband of Sherry Russell, age 62, from Woodstock NY, died of lung cancer at age 42. Last March 2017, Mr. Russell went to HealthAlliance Hospital: Broadway Campus to get a chest x-ray, however, there was no lung cancer identified. It was only two years after when the cancer was diagnosed. The tumor was already 2 inches in diameter and treatment was too late.
Mrs. Russell is convinced the radiologist’s failure to find the tumor on the x-ray led to a misdiagnosis. If the tumor was identified sooner, the treatment provided could have saved her husband.
Mrs. Russell asked for a copy of the medical records of her husband from HealthAlliance Hospital to get the chest x-ray report as a support document for the malpractice lawsuit she’s filing against the hospital for failing to identify cancer. But she did not get a copy of the x-ray report.
HIPAA gives patients the right to get a copy of their healthcare records from healthcare organizations. The 2009 HITECH Act amended 164.510(b) of HIPAA so that covered entities are allowed to share the protected health information (PHI) of a decedent to family members and anyone who was engaged in the care or payment of bills of the decedent before death, except if doing so is not consistent with the stated choice of the person that is recognized by the covered entity.
When a person requests a copy of his/her medical records, the healthcare provider must provide copies of paper records and/or electronic records. A reasonable fee can be charged for providing copies in the format the patient chooses, if available. Hospitals can get countless requests for medical records copies, and so Health Alliance Hospital chose Ciox Health, a health record management vendor, to take care of those requests.
The lawsuit alleges that the federal HITECH Act of 2009 entitles Mrs. Russell to have a copy of her husband’s healthcare records for which the hospital and Ciox should only charge $6.50. The lawsuit additionally alleges the two parties were unresponsive and hard to deal with. When they responded to Mrs. Russell’s requests, they said they could not give electronic health records, just paper records for which Ciox charges 75 cents per page.
Russel’s lawyer, John Fisher, said that because HealthAlliance Hospital, the entity responsible for doing wrong to her, is stonewalling her, the malpractice lawsuit had to be filed, even without the medical records.
Fisher additionally wants a class-action status for the medical records lawsuit versus HealthAlliance Hospital and Ciox Health. He claims he has a bunch of clients that have in the same manner faced difficulties asserting their HIPAA Right to get copies of their medical records from HealthAlliance Hospital and Ciox Health.
The HHS addressed the matter of overcharging for copies of medical records in the guidance on fees released last 2016. The HHS affirmed that a flat fee of $6.50 can be charged for giving copies of medical data, though average labor costs or exact costs for preparing a copy may be charged to a third party. The HHS additionally recently introduced a HIPAA Right of Access Initiative to strongly implement compliance with this very important HIPAA right. Two financial penalty charges had been issued for violating this right.
This is not the first time Ciox Health is facing legal action related to medical record access. Ciox Health and 62 Indiana hospitals in Indiana faced a federal lawsuit for falsifying records and taking part in a kickback scheme that involves overcharging for providing patient EHRs, though the lawsuit was dismissed. In 2018, Aurora Health Care in Milwaukee and Ciox Health resolved a class-action lawsuit related to excessive charging for medical record requests. A forerunner company of Ciox Health charged $22.58 on average for providing copies of medical records. Ciox Health in Alpharetta, Georgia paid $35.4 million to settle patient claims.
In January 2018, Ciox Health submitted a lawsuit versus the HHS to halt HHS enforcement of the HIPAA Right of Access Rule as per the 2016 amendments, saying the HHS updates were unreasonable and ridiculous. Ciox contended that a $6.50 flat fee does not represent the actual costs of processing requests for copies of medical records.
In January 2020, a federal judge decided against the HHS saying that the fee simply covers a patient’s right of access. It does not cover third party requests for copies of medical records.