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Lawyers, Patients Fight Cost of Records

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Doctors used to give patients a copy of their medical records for free. But that service is waning, as today's large group practices shed the hassle and risk by outsourcing the record-handling.

For-profit companies in the new "release of information" or "disclosure-management" industry include HealthPort Technologies LLC in suburban Atlanta and Bactes Imaging Solutions LLC in San Diego.

They say it is costly to process record requests in compliance with patient privacy laws. In Florida, they get $1-a-page for hospital records, whether the copies are on paper or digital.

For doctors' records, the price is likewise $1 a page in most cases.  The only price breaks are for patients, who pay a quarter a page after 25 pages, and government agencies.

The Florida Board of Medicine has been debating whether to do away with the exceptions and have a $1-a-page maximum charge for everyone. A hearing is now scheduled for October in South Florida.

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Jan McDavid of HealthPort Technologies

HealthPort Technologies' General Counsel Jan McDavid says most people don't understand why the industry wants the charge to be the same for copies in electronic and paper format; they think a download should be less expensive. But what's costly isn't the paper, she said, it's the personnel.

"There are about 32 steps involved" in processing a document-copy request," she said. "It takes a lot of training; it's a very highly regulated environment."

Most of those who request copies of records are insurance companies or lawyers of all kinds -- not just medical malpractice and personal injury, both plaintiff and defense,  but also disability determinations, workers' compensation and more.

At HealthPort, only 5 percent of the requests for copies come from patients themselves, General Counsel Jan McDavid said.

But that's a sticky issue. At least two class-action suits against HealthPort and Bactes are under way in Florida on behalf of patients from Hillsborough and Broward counties who didn't get the patient price break because their records request was submitted by their attorneys. At least $1 million in overcharges is at stake, according to Scott Jeeves of St. Petersburg, one of the lawyers bringing the class-action cases.

HealthPort recently settled a class-action case on behalf of Florida lawyers who said they had been overcharged for copies of hospital records. In that case, the overcharge was not related to the per-page cost but was an add-on fee.

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Credit Jeeves Law Group
The Florida Channel
Scott Jeeves

McDavid says the reason that the cost is the same for electronic and paper copies is that the major expense is personnel. It takes a lot of training to process the documents in accord with all state and federal laws and protect confidential information from mistaken release, she said.

HealthPort extends the patient price break only to those categories listed in the 1996 Health Insurance Portability and Accountability Act, better known as HIPAA.  That includes a parent or legal guardian, or the designated health-care surrogate, who holds the patient's "durable health care power of attorney."

The patient's lawyer is not one of the categories listed in HIPAA as meeting the definition of personal representative, McDavid said.

Jeeves argues that under Florida law, patients' attorneys who hold signed authorizations to obtain medical records are acting on behalf of the patient and thus should receive the price break.  The patients have to pay their attorneys back for the records so it is the patients' money at stake, he said.

One of the class-action plaintiffs, Barbara Allen of Tampa, said she couldn't do that, as she was in bed with a rod in her leg in a rehabilitation center for three months. Mrs. Allen, 69, signed a legal authorization for Jeeves to get a copy of her records, related to a bad slip-and-fall in a store two years ago.

HealthPort's charge for copying the 217-page medical record was $240  – a dollar a page plus shipping and sales tax. Jeeves protested that Florida patients are supposed to pay only a quarter a page after the first 25 pages, so the price should be  $73, plus postage.

HealthPort refused to release the documents until he paid the "ransom," as Jeeves described it. He couldn't wait; Mrs. Allen's medical bills were mounting and doctors needed to be paid. He wanted to begin mediation with the store owner but couldn't without her records.

So Jeeves' firm paid for the records; later, Mrs. Allen reimbursed him. But she was irked that the charge was more than three times what she felt was justified. "What they're doing's not right," she said.

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Credit Florida Court System
The Florida Channel
Hillsborough Circuit Judge William Levens

Recently, Hillsborough Circuit Judge William P. Levens agreed with Jeeves. HealthPort should have charged the patient price for the records, since Jeeves was acting on the patient's behalf, the judge ruled.

HealthPort plans to appeal Levens' ruling to the 2nd District Court of Appeal in Lakeland later this summer. Until a final decision, attorney McDavid says, HealthPort will keep charging lawyers $1 a page.

Sorting out copying charges could take years because of the complexity:

  • Florida has one set of regulations for obtaining records from hospitals and another for records from doctors. That's in part because two separate agencies regulate them: the Agency for Health Care Administration (hospitals) and the Department of Health (doctors).
  • DOH doesn't handle changes to medical record ruless; it defers to the state Board of Medicine. That board has been debating the issue for years, with some members urging adoption of the flat $1-a-page fee that AHCA uses, but others protest that such a policy is a hardship on the sickest patients. The board has scheduled several hearings and discussions, but keeps postponing a decision. The next hearing is set for October. Dr. Zach Zachariah, a board member from Fort Lauderdale, said at a discussion in April that he wondered "if we are going to get a decision on this in my lifetime."
  • The Board of Medicine can't raise the price on record copying without conducting a Statement of Estimated Regulatory Costs (SERC). The Florida Legislature ordered that such a study takes place when a change in rules is expected to cause a substantial financial impact on small businesses. Debra Henley of the Florida Justice Association, which speaks for trial lawyers,  said there is no question most law firms qualify as small businesses. A preliminary SERC performed for the medical board by DOH staff suggested the cost to law firms of a flat $1-a-page fee to all might have a $7 million impact. That means it would require legislative ratification.
  • Florida laws and the federal HIPAA law are not in perfect synch and don't use the same phrasing.

Because of the delays and confusion, Florida patients who want to be sure to get the price  break for medical records are advised to put a request for their records in writing and give it or send it to the physician's office themselves.
--Health News Florida is a service of WUSF Public Media. Contact Carol Gentry at 813-974-8629 (desk) or 727-410-3266 (cell).

Carol Gentry, founder and special correspondent of Health News Florida, has four decades of experience covering health finance and policy, with an emphasis on consumer education and protection.