Medical Records Release – Protocol to Follow, and Some Misconceptions

Physicians’ offices receive medical record requests via personal requests from patients, their non-attorney representative, or attorney representative. The records may also be requested via subpoenas for legal purposes. The physician or medical record custodian is expected to provide a complete and unchanged copy of the patient’s medical records. Medical records are important in personal injury, workers’ compensation, product liability, and medical malpractice cases. When obtained for such cases, attorneys have them reviewed by an experienced medical review company. This is with a view to gather the required medical evidence that will help develop the case.

In this blog, we first look at the protocol physicians need to follow when releasing patient medical records, and then go on to highlight some misconceptions related to medical record release.

There is a protocol that physicians need to follow when they receive medical record release requests such as the above.

• First and foremost, a written authorization or form is needed for the release of medical records. This form should include the signature of the patient, printed name, date, and the records needed.
• The language of the record release request should allow the practice to release the medical records via mail, telephone, and/or fax.
• Each record request must be made in a separate, signed authorization form.
• A valid record authorization must meet specific language requirements to release records to anyone other than the patient.
• If the records are to be released to the patient, only the patient’s handwritten, signed request is needed.
• It is important to release only a copy of the records, not the original.
• Typically, depending on state laws, a cost-based fee may be charged, though there may be exceptions to this fee.
• If the patient allows, the physician can prepare a summary of the medical record.
• If another healthcare provider’s records are there within your record set, they may be released, especially when required to develop a treatment plan.
• There are specific laws that require additional specific authorization with a view to protect the medical records related to diagnosis and/or treatment of patient conditions such as HIV, minors, alcohol/substance abuse, psychiatric/mental health conditions and so on. If the patient doesn’t authorize the release of such information, the physician’s office must declare the same in writing – that the medical record set does not contain patient medical information that is protected by special state and/or federal confidentiality laws, and which cannot be revealed without specific written consent.

Now, here is a look at some misconceptions medical practices have about medical record release, as highlighted in a Psychiatric Times article.

• Physicians are not Required to Provide Patients Access to their Entire Medical Record: A patient is entitled to access all the contents in his or her medical record, which include the physicians’ notes, lab and test results, and so on. Physicians do have some right not to disclose certain records such as those related to mental health or other records if they believe that such disclosure could be harmful to the patient.
• HIPAA always Governs the Disclosure of Medical Records: HIPAA details a patient’s right to receive his or her medical records. At the same time, there are state laws that govern the disclosure of medical records. If state laws and HIPAA conflict, HIPAA generally controls. If state law addresses a particular issue regarding which HIPAA is silent or does not conflict, physicians must comply with state law.
• A Non-Custodial Parent doesn’t have the Right to Access a Minor’s Record: A non-custodial parent maintains parental rights allowing access to his/her child’s medical records, unless a court order dictates otherwise or there is some related state-specific law.
• Physicians are not Required to Provide their Patients Directly with a Copy of their Records: Unless limited by law, a patient is entitled to receive a copy of his or her medical records. A physician may not refuse to provide the record directly to the patient in favor of forwarding to another provider.
• Medical Record Requests can be Honored even Without a Patient’s Signature: This is sometimes false. HIPAA allows disclosure of medical records for “treatment, payment, or healthcare operations” in the absence of a written request. But most state laws require the record requests to be signed by the patient.
• If the Patient owes Money to the Medical Practice, the Record Request can be Refused: This is not true because there is no legal basis for refusing to release the patient’s medical record if he/she owes money to the practice. Most federal and state laws give the patient the right to access his/her medical records. The only money that can be required are the medical record copying fees as mandated by law.
• Physicians can Charge Patients a Flat Fee for the Medical Records: This is not true. Some states allow physicians to charge handling fees for medical records. HIPAA allows providers to charge a reasonable, cost-based (labor, copying and postage charges) fee for the medical records, with a state’s per-page copy charge considered presumptively reasonable. HIPAA that trumps state law, doesn’t allow charging a “handling” fee for processing or retrieving the records.

When record requests are made by patients, their attorneys, or medical review companies, physician practices may falter or fail to respond properly. This could lead to non-compliance and liability issues. It is important therefore to review all forms and policies of the practice and ensure that they are legally compliant.

Disclaimer: The content in the above blog is sourced from reliable internet resources and is meant for informative purposes only. For a professional opinion on the same, please consult an experienced attorney.