Handling Medical Records Requests for Illinois Workers Compensation in the EMR Era. Educational Whitepaper

Transcription

1 Handling Medical Records Requests for Illinois Workers Compensation in the EMR Era Educational Whitepaper

2 Handling Medical Records Requests for Illinois Workers Compensation in the EMR Era For more than a decade, workers compensation (WC) attorneys have relied on the precedent set by the Clayton v. Ingalls Memorial Hospital ruling to guide their way in getting their clients medical records for arbitration. However, with the onset of electronic medical records, this ruling has become outdated necessitating attorneys to adjust their business practices. With no new law or updates to the current ones to account for subpoenaed medical records in electronic formats, medical providers find themselves in a unique position: do they cave to attorney pressure and provide copies of the original records to avoid a court appearance (and swallow the cost in the process), or do they expend the effort to educate the attorney and negotiate a reasonable fee for the extra copying and handling costs? Either way it s a headache. In this white paper, you will learn the background that has created the confusion surrounding medical records and workers compensation cases; why the Clayton v. Ingalls ruling has become antiquated in the electronic medical record (EMR) era; guidelines for meeting a reasonable copying fee; ways medical providers can avoid the difference of interpretation discussion all together; and information on the building momentum for legislation reform on this subject. Here s the Deal Over the past decade, the Clayton v. Ingalls ruling has caused confusion for workers compensation attorneys, adjusters and healthcare providers alike. Established in 2000, this ruling was originally intended to offset the grossly inflated cost of medical records copying which healthcare entities were charging attorneys. So, the Clayton ruling was devised with this objective: the provider office would appear in court with the original paper copy of the medical record, wherein the requesting attorney could either review the record or make a copy with his or her own photocopy equipment. For the trouble of appearing in court with the original paper records, the ruling stated the provider was entitled to a $20 witness fee plus mileage, but was not entitled to copying charges (retrieval or per page fees, also known as copying and handling fees.) However, with the onset of electronic medical records, the game has changed. It simply isn t possible for providers to show up in court with the original records when they only exist in electronic form; they can only show up with a copy. Many workers compensation attorneys have made the claim the $20 witness fee is a payment for medical record copying costs. Standard practice has come that attorneys will mail healthcare providers subpoenas with a $20 check which is intended to imply if you d rather just send a copy of the record, we ll allow this and save you the trouble of appearing in court. 2

3 This generally accepted practice has revealed an obvious problem in the application of outdated laws to the world of electronic records. The Clayton ruling does not state a copying and handling charge for original records. Furthermore, no provision in the Illinois Workers Compensation Act or Rules provides a number or value for copying and handling records either (it too was drafted prior to the invention and proliferation of photocopying machines and hasn t been updated). So does that mean medical providers must swallow the cost? No. The Holtkamp Trucking v. Fletcher ruling (2010) established that original medical records are the property of the physician or hospital, which gives the provider the right to request a reasonable fee (over and above the standard $20 witness fee) for the duplication and mailing of said records. If an attorney issues a subpoena duces tecum (or subpoena for production of evidence) requesting that a healthcare provider bring original medical records to court, the healthcare provider doesn t have to make unlimited free copies in response to the subpoena. Antiquated Laws Don t Work in the EMR Era Clayton v. Ingalls applies to paper medical records. Since 2000, medical records have evolved through new EMR technology, allowing for 100% paper-free record keeping. This evolution has led to most healthcare practices converting to electronic medical records That means medical records often aren t kept on paper and can t be copied. In fact, it is impossible to appear with an original copy of the electronic medical record. Per Clayton, the medical practice would have to appear with the proper secure network access via remote device (i.e. a laptop). The technology requirements needed to accomplish the secure connection (per HIPAA) and navigation of the EMR in order for an Arbitrator to inspect the ORIGINAL record is impossible to calculate. The only way to get copies in the case of electronic records is to have the practice print the records at their offices and bring or send the printed and certified copies to the Commission or attorneys office. The Illinois State Comptroller s website has a published per page charge for copies of printed pages from electronic records. It is half the cost of photocopying paper records. The per page charge includes the cost of each CD Rom, DVD or other storage media. When you do the math, the copying cost is more than $20: Illinois Annual adjustment of copying fees as required under 735 ILCS 5/ Copy Fee File Retrieval Fee Handling Fee Copy Pages 1 through 25 Copy Pages 26 through 50 Copy pages in excess of Base 2013 Adjustment (for Paper) $20.00 $25.55 $ Charge for Printed Copies of Electronic Records $0.75/page $0.97/page $0.49/page $0.50/page $0.65/page $0.33/page $0.25/page $0.32/page $0.16/page Cost for Printing Electronic Records by File Size *Calculations use Illinois 2013 rates 25 Pages 50 Pages 100 Pages 500 Pages File Retrieval $25.55 $25.55 $25.55 $25.55 Fee Handling Fee Copy Pages 1 $12.25 $12.25 $12.25 $12.25 through25 Copy Pages - $8.25 $8.25 $ through 50 Copy pages in - - $8.00 $72.00 excess of 50 TOTAL $37.80 $46.05 $54.05 $

4 The Typical Workers Compensation Subpoena Story Meet Attorney Mike Jones. He is representing Bill Smith in a workers compensation arbitration. To provide proof for the court of Bill s injuries, Attorney Jones orders medical records from Bill s doctor, Sue Adams. Under the Clayton v. Ingalls regulation, Jones mails Bill s doctor a subpoena for his original medical records and candidly expects to pay only $20. Attorney requests medical records for $20 Notifies attorney about EMR & how $20 does not cover costs Cites Clayton v. Ingalls, mentions subpoena Informs Attorney a subpoena must be hand-served Spends time & resources delivering subpoena Sends letter informing attorney law is outdated and request is impossible Attorney realizes situation and negotiates deal for medical record Both parties waste time and resources in an unnecessary process. Bill s doctor uses an EMR platform to manage all her patients medical records. Being an expert at what they do, and having read the Clayton v. Ingalls regulation, Dr. Adams s practice kindly alerts Attorney Jones that under that regulation, he must hand-serve the subpoena -- so technically, Dr. Adams doesn t have to comply. They also inform him that since Bill s records are in electronic form, the $20 fee is not enough to cover copying costs. Attorney Jones hand-serves the subpoena, but no additional funds to cover the copying costs. At this point, the practice realizes Attorney Jones isn t letting up and may not understand why Dr. Adams still doesn t have to comply with his request for just $20. They send him an informational letter: Thank you for hand-serving the subpoena, but we still can t do what you re asking for only $20. The regulation you are trying to hold us to in this case is antiquated since Bill s original records are in electronic form and not paper, and thus cannot be applied in the same way. The Clayton v. Ingalls regulation states that the provider must show up with the original medical record in order for you, Attorney Jones, to bear the expense of making your own copy. We realize that is why you sent $20. However, since Bill s original medical records reside in our EMR, this task is simply not possible. We can show up in court or at your office, but since we can t physically show up with our network server to produce Bill s original electronic medical file, we aren t going to have the records and this will only delay your trial. The only reasonable solution is for us make a paper copy of the electronic records for you at a fair copying fee so you have them in-hand in time for your trial. Attorney Jones comes to his senses and realizes his difference of interpretation isn t worth arguing over $20 and that Dr. Adams is right. He calls the provider s office and they negotiate a reasonable fee based on the size of Bill s record. 4

5 Ease Your Burden All Together As seen in the story above, there is often a difference of interpretation when it comes to the Clayton v. Ingalls regulation pertaining to original medical records residing in the EMR. Attorneys simply aren t aware it usually takes medical providers more than $20 to copy records from the EMR (although the calculations above show it costs more than that) and sometimes try to scare the provider into swallowing the extra copying cost by throwing legal jargon at them. But just like the attorney couldn t force you to make unlimited copies of your family photo hanging above your fireplace at home for $20, he also can t force the medical provider to make unlimited copies of the patient s medical records from the EMR for $20. Bottom line the regulation consistently cited by worker s compensation attorneys has become irrelevant due to the proliferation of electronic medical records. They re using a law for a system that simply doesn t exist anymore. As you know, HIPAA mandates a 30 day turn-around on release of medical records. And as you can imagine, the situations similar to the Attorney Jones example absorb weeks and hours of valuable time and resources that might put you in violation of the 30 day timeline. One way to eliminate all this back and forth with attorneys, and make sure your practice isn t in violation of the court or HIPAA, is to simply offload release of information to a business associate. Under HIPAA, you transfer your liability to a business associate for release of information requests. And when that business associate is versed in the latest regulations and is an expert at what they do, like DataFile Technologies is, you have a trusted advocate on your side. When you are a DataFile client, we handle, negotiate and advocate on your behalf so you don t have to deal with the headache of interpreting antiquated laws and negotiating fair and relevant fees for your release of information workflows. We pride ourselves on handling these situations so our clients don t have to. DataFile has found an efficient and fair way to get workers compensation requests done that is legal and protects our clients (and our business) from being taken advantage of. We will contact the attorneys. We will negotiate a fair price on your behalf. We are fair in our requests and act as your advocate so you don t get underpaid or abused by workers compensation requests. DataFile fulfills workers compensation subpoena requests daily in the state of Illinois. Furthermore, 95% of the legal firms we work with resign themselves to paying our $40 proposed fair fee for these services after realizing that DataFile s position is both legitimate and reasonable. Please know that we pick our battles carefully in this arena. If it s an infrequent requestor of medical records, we accept their $20 payment and move along. Similarly, if our clients have a specific attorney group relationship they d rather not disturb, we will comply and accept their $20 as long as the volume is analyzed and agreeable. Our rule of thumb: if an attorney appears to have a volume of more than 4 requests per month, we must engage and attempt to come to a civilized Gentleman s agreement. 5

6 Legislation Change is Overdue and We re Fighting For It In practice, the Court has set the landscape as follows: If medical record-keeping staff is subpoenaed, they will have to bring the original medical records to the hearing and then take them back after inspection; The requesting party can pay for photocopies of original medical records per the State Comptroller s published rates; We can all agree to a reasonable path to get records copied at a reasonable cost; so the sole cost of photocopying and mailing copies isn t dumped on doctors and hospitals. DataFile Technologies understands that attorneys offices are running a business. They are seeking to protect both their client and the patient while avoiding unnecessary expenses. However, the precedent of only paying providers a $20 witness fee and expecting unlimited copies of original medical records stored in the EMR is outdated, and shifts an unfair financial burden to the provider. It is preposterous to expect a medical provider to make copies of 500, 1,000 or 10,000 pages of original medical records for only $20. As a result, some practices are feeling bullied by workers compensation attorneys when they try to come to a fair agreement over copying charges simply because there stands to be a difference of interpretation in how to apply Clayton v. Ingalls in an EMR environment. This situation clearly illustrates that there are many unresolved issues surrounding subpoenas, the copying of medical records and the associated fees as they relate to worker s compensation cases. Expedient change is required to better define the legislation which governs these issues. DataFile is pioneering the initiative seeking legislative change which will have meaningful impact on healthcare providers and their medical records management. We are one of several entities in the past few years that have approached the Illinois Workers Compensation Commission to define current, relevant language on this issue. Although the arbitrations have thus far ended in a stalemate, we are confident progressive change is around the bend. DataFile is your go-to resource on HIPAA, Illinois workers compensation issues and fighting for your rights as a medical provider. Contact us with any questions you have and see how we might be able to help you with your release of information situation. 6