Since 1996, federal statutes under the Health Insurance Portability and Accountability Act (HIPAA) have mandated patients’ lawful right of access to their healthcare records. This includes treatment progress notes, radiographs, CT scans, billing records, and more.
Providers or their clinics have a 30-day time limit to provide records, with very few exceptions, especially for dental records. Patients may request records for themselves, a specialist, their legal counsel, another provider, professional peer review, a regulatory board, or other parties they deem appropriate.
Under very limited exceptions, a provider may extend the 30-day period through a review appeals process. Further, some states’ statutes have shortened that 30-day timeframe.
The public has not only been informed of their rights to access their healthcare records by government agencies, but also by the media. Generally, the public knows about these rights, and misrepresentations and obfuscation by healthcare violators may not be perceived well.
Source providers should retain and maintain original records as their property for the proscribed time period under state laws. Original records should never be relinquished except by a lawful court order.
However, record copies (not the original records) should be transferred upon patient request. Notes should be legible, and radiographs and CT scans should be of diagnostic quality. Forwarded radiographs via fax machine or blurred photocopy lab records are unacceptable. In fact, such acts may be viewed as “red flags” by potential investigators and draw unwanted attention.
A nominal fee may be charged patients for the labor of photocopying, materials, postage, and other costs. Nothing may be charged for labor in the search for records. Additionally, some states have a set proscribed fee for record copy and transfer under their laws.
Regardless, charging patients an excessive processing fee for record copies is expressly prohibited under federal HIPAA statutes. In fact, many healthcare providers deliver this service for gratis in the interest of patient welfare.
The law also outlines seven invalid reasons for not forwarding patient records:
- The patient may have an outstanding account balance.
- The provider is concerned about a potential legal action or regulatory board investigation.
- The patient has failed to pay an excessive fee for record copies and transfer.
- The provider requires the patient to physically come into office to demonstrate proof of identity.
- The patient is required to enter a website portal for their records request.
- The patient is required to mail in the records request.
- The healthcare provider requires patients to produce and reveal their reasons for record copies.
Realities
Most dental facilities fully comply with patients’ rights when it comes to accessing to their records. Unfortunately, some do not.
In fact, failure to forward patient records upon patient request in a timely manner is a very common complaint received and reviewed by state dental boards. In many states, this violation goes beyond federal HIPAA rules and regulations and specifically into state administrative codes.
State regulators under state dental boards impact dental licensure standings. Further, a few state dental boards also regulate non-dentist owners of dental practices. Such dental board complaints extend from solo practioners to isolated group practices and into certain dental service organizations (DSOs).
If records aren’t forwarded to the next provider, possible harm may not only come to patients, but to provider colleagues as well. These practitioners are often placed in a difficult position, especially if they are a credentialed Medicaid or preferred provider organization (PPO) doctor.
For example, the new provider may seemingly have the option of taking new images or examination for gratis, as the time period for payment allowance by the patient’s plan will not compensate for added images or exams. This may be financially untenable in clinics with tight operational budgets.
Patients might be required to pay out-of-pocket for current images, even though recent images are theoretically available from a previous provider. This charge to patients may be in breach of the current provider’s participation contract.
As too often happens, the newest provider may limp along with inadequate diagnostic records and images, and an incomplete treatment plan, until plan policies remunerate for updated records and images. While a plan’s failure to compensate for necessary services may promote the interests of the insurance industry or Medicaid budgets, this policy fails to adequately serve patients or doctors.
Enforcement
Rules and regulations are meaningless without vigorous enforcement. In fact, failure of enforcement of statutes generally enables and promotes lawlessness. In effect, a paucity of regulatory enforcement is consistent with a tacit government policy of “crime pays.” For years since the passage of HIPAA in 1996, federal enforcement of patient rights of record access has been grossly remiss.
Then lightening struck, and it struck twice in Florida in 2019 when the US Department of Health and Human Services (HHS) Office for Civil Rights settled two separate cases involving a healthcare entity’s failure to properly and lawfully forward patient records.
Korunda Medical and Bayfront Health entered into formal resolution agreements with HHS. Neither healthcare group admitted wrongdoing. Each is required to spend the time, effort, and expense of compliance with a formal Corrective Action Plan. Each is also to remit a sum of $85,000 to HHS.
Conclusion
Many organizations have been advising the dental profession about patient rights relating to the transfer of dental records since the passage of the federal HIPAA statutes in 1996. This includes the federal government, the ADA, state dental boards, and state dental associations. Until recently in Florida, few alleged violations of consequence have been prosecuted.
Ignorance of these laws will offer offenders a poor legal defense. Finally, patient rights relating to transfer of their healthcare records are today being enforced with a vigor and emphasis not witnessed previously.
Dr. Davis practices general dentistry in Santa Fe, NM. He assists as an expert witness in dental fraud and malpractice legal cases. He currently chairs the Santa Fe District Dental Society Peer-Review Committee and serves as a state dental association member to its house of delegates. He extensively writes and lectures on related matters. He may be reached at mwdavisdds@comcast.net or smilesofsantafe.com.
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