I am often astounded when physicians and other healthcare providers tell me that they routinely ignore record requests. No need for any attorneys they say. They start digging the hole that as their attorney, I must help dig them out of. Record requests should NOT be ignored! Of course, the source of the request will govern the response. The smart provider, calls his or her attorney upon receiving such a written request. Let’s take the various types of requests one at a time:
- Your state licensing board requests a medical record or two. Depending upon the state, you are required to provide the patient records within a certain amount of days. Usually, the letter that accompanies the request states how many days you have. A failure to provide the records within that amount of days is itself a violation of the state regulation that can and does result in license sanctions. Often, an initial letter of representation by your health care attorney, stops the clock. You want to make sure that if the state only asks for certain days, that the material you are sending provides a certain context. Failure to supply consultation reports, lab results, intake notes and other records, may not serve your interests. Consult with your attorney first!
- An attorney, in a malpractice or personal injury suit may request your records. Unlike a state board request, these must be accompanied by a HIPAA compliant for, signed by the requesting patient, for a copy of the records. If you think that may be the first step of a malpractice action, notify your insurance carrier in writing. Save a copy. Many policies require this. If you fail to do this, your insurance carrier could disclaim coverage.
- If an insurance company that you participate in requests records, you must provide them according to your signed agreement with the carrier or plan that you participate with. Assuming that you are about to be audited, contact your health law attorney at once, prior to sending the records. When you are a participating provider, no HIPAA signed form by the patient is required for you to provide the records.
- If you are a non-participating provider, you can still be audited and the company can still request patient records. However, although this is somewhat controversial, I would ask for signed, HIPAA compliant permission be provided by the requesting company from your patient. Again, contact your health care attorney prior to sending anything.
Criminal cases and investigations have a different set of rules. Suffice it to say, immediately call your attorney and say nothing, other than you are represented by an attorney who will contact you (whoever you is) as soon as possible.
Larry Kobak, Esq.