Release of Information Guidance Created More Confusion Than Clarity

The Office for Civil Rights’ (OCR) guidance on patient access fees released earlier this year muddied the waters for providers and complicated the release of information (ROI) process, experts at the October 15–19 AHIMA national convention in Baltimore agreed.

At the October 15 roundtable discussion Access, Amendments, Fees/Charges, experts discussed the unresolved questions surrounding OCR’s guidance and the operational challenges it presents to a standing-room-only crowd. Experts and attendees alike shared their experiences and advice for handling a piece of guidance even OCR said is flawed, says Rita Bowen, MA, RHIA, CHPS, SSGB, vice president of privacy and HIM policy and education with MRO in Norristown, Pennsylvania.

The guidance, which stated that organizations may charge a patient either a flat fee of $6.50 or follow a specific methodology for calculating the cost of making a copy of the requested records, created unexpected confusion among attorneys. “There are so many attorneys who are reading into that thinking they are representing the patient, so, therefore, they are the patient representative and they should get that rate,” Bowen says.

An attorney can act as a patient representative but the attorney must be specifically designated as a representative for healthcare purposes, she says. Simply acting as an individual’s legal counsel or representing an individual in legal proceedings is not the same thing. Even if the patient signs an authorization giving the attorney permission to request and view the patient’s medical record, the attorney’s request is a third-party request and it will be billed as such. But attorneys are pushing back and pointing to OCR’s guidance as proof they should be charged the patient access rate, she says.

“I think there’s a lot of the membership that’s saying, please, help us get this word out, help us legislate this so there’s a better understanding,” Bowen says.

Some providers may have had policies that differed from OCR’s guidance, Debi Primeau, MA, RHIA, FAHIMA, president of Primeau Consulting Group in Los Angeles, a co-sponsor of AHIMA’s Privacy and Security Institute, says. The guidance may have caused some initial confusion among providers and ROI organizations that previous used different methodologies to calculate fees. However, while those organizations have changed their policies to reflect OCR’s guidance, attorneys continue to misinterpret the agency’s intentions. Attorneys have pushed back against organizations that charge them the third-party access fee, saying their requests fall under patient access. Charging attorneys the same rate patients are charged not only deviates from OCR’s guidance but will have a serious impact on the healthcare industry.

“That costs facilities money and also that can impact the release of information industry, who is very proactively fighting this,” she says.

Representatives of other HHS agencies admitted the initial guidance wasn’t clear. During the October 15 Office of the National Coordinator of Health IT (ONC) update session, Lucia Savage, Esq., the ONC’s chief privacy officer, said additional guidance will draw clear lines between patient access and third-party access by an attorney.

“They’re trying to figure out how to segregate it out and they’re finding it to be very difficult,” Primeau says. “It’s really something that’s meant to be used for the patient and not for litigation purposes.”

OCR did not specify when additional guidance would be available. Until then, providers and ROI organizations should carefully review ROI requests from attorneys and clearly communicate the difference between patient access and third-party access.