In a previous blog, we discussed medical records and the important role they play when it comes to patient health and safety. This includes the use of medical records in helping health care providers understand patient health history, arrive at accurate diagnoses, treat patients effectively, coordinate care with other specialists, and minimize the risks for preventable harm, in addition to how even minor medical record errors can have major consequences in terms of patient injuries and medical malpractice.
Because medical records are such a critical aspect of health care, and because many patients have questions about their rights when it comes to their health records, our legal team at Levinson Axelrod, P.A. wanted to provide some important information about medical records and access.
How is access to medical records regulated?
Medical record access is carefully regulated by both state and federal laws. Generally, these laws are intended to protect the privacy of a patient’s medical information and personally identifying information (such as the nature and dates of their treatment, diagnoses and medical opinions, medications, and more) by ensuring any disclosure is authorized by a patient or their personal representative. However, they may also regulate mandatory reporting requirements in certain situations, such as suspected child abuse. These laws also focus on how health care providers must maintain medical records and how they must provide them to patients upon request (including format and fees).
Federal Medical Record Regulations & HIPAA
Most people are familiar with the term HIPAA, or the Health Insurance Portability and Accountability act. This important federal law (Public Law 104 -191) has a few key components:
- Health care providers (from physicians to hospitals and their staff) and health care plans are required to keep patients’ medical records confidential unless the patient provides their consent to disclosure.
- HIPAA as a few exceptions to confidentiality, including one main exception when a patient needs immediate medical assistance and is unable to consent to their disclosure. In this situation, a physician may speak with a patient’s family, or may speak with the individual who is specified in a living will or health care power of attorney.
- Patients have a right to request access to their medical records maintained by or for providers and plans subject to HIPAA, including billing and payment records, insurance information, test or imaging results, and more, and can request their records in either paper or electronic form, as long as providing those records electronically is reasonably feasible. Federal law requires providers to provide patients with medical record within 40 days of a request.
- Under HIPAA, patients do not have the right to access psychotherapy notes, which are the notes mental health providers take during conversations with patients. These records are classified separately from medical and billing records. HIPAA also prevented non-authorized disclosure of psychotherapy notes.
New Jersey Medical Record Regulations
In addition to federal law, New Jersey state law also regulates access to patient records, as well as any costs associated with providing those records. Under the New Jersey Administrative Code (NJAC 8:43G-15.3), important state regulations include:
- Medical records must accurately reflect provided services and treatment and billing history, and be maintained for at least 7 years from the most recent entry.
- Patient medical records can be prepared and maintained electronically when the records meet certain qualifying criteria, such as records that must at least two forms of identification, are signed by a physician using their confidential personal code, are prepared using a system that logs all entries and automatically prepares back-up copies, and preventing changes to existing entries by requiring corrections to be noted in a new entry.
- A patient’s medical records must be provided to the patient or an authorized representative within 30 days of a request. Upon request, providers must also obtain authorization, ensure the release is consistent with the request, and identify those records as confidential.
- Providers cannot refuse to provide a patient with their medical records on the basis that the patient still owes medical fees or has any unpaid balance when records are needed by another medical profession in order to provide care.
- Confidentiality must be maintained except under certain circumstances. These generally include subpoenas issued by the Board of Medical Examiners or Office of the Attorney General, when required to disclose by law (i.e. reporting suspected child abuse, gunshot wounds, or communicable disease), under the judgment of a provider in order to assist another provider, and when the patient is believed to pose a danger to themselves or others due to a mental or physical condition.
Permitted Charges for Medical Records
Charges and fees for medical records are regulated by state and federal law, which means there are things providers can and cannot charge for. Below, we outline a few key points about permitted charges for medical records:
- Providers are permitted to charge reasonable fees for preparing a summary or copy of medical records. In New Jersey, any reproduction of records cannot exceed $1.00 per page or $100 for an entire record, whichever is less. Providers can charge up to $10 for postage when records are less than 10 pages. For records containing over 100 pages, a copying fee of no more than $ 0.25 per page may be charged for pages in excess of the first 100 pages, up to a maximum of $ 200.00 for the entire record
- Patients cannot be charged for a copy of medical records when the patient has been affirmatively terminated from its practice or when a provider leaves a practice they were formally associated with and the patient continues care with that provider. New transcriptions, due to illegibility or being prepared in a language other than English, must be provided at no cost.
- Federal law regulates fees for patient medical records to ensure they are reasonable. Fees may only include (1) costs of labor required to copy medical records (paper or electronic), (2) supplies for creating paper copies or electronic media (such as a CD or USB drive), and (3) postage (when patient’s request them to be mailed), and (4) any requested explanation or summary when agreed to by the patient.
Electronic Medical Records
The health care industry is constantly evolving and adopting the use of new technology to streamline patient care and recordkeeping. As such, there are unique regulations that apply when it comes to electronic medical records (EMR). Some of these include:
- Under the 2009 federal HITECH Act, there are a number of regulations that apply to electronic medical record (EMR) systems. This includes various requirements for keeping electronic record logs, such as recording any time a patient’s records are accessed, showing who viewed and / or changed any information, and from when and where records were access or changed.
- Mandatory audit controls that log a tail of any manipulation to a patient’s EMR, such as every instance of a viewing, editing or deleting, downloading, exporting, and printing.
- Mandatory use of safeguards to protect electronic medical records.
- Regulations to ensure confidentiality and availability of EMRs. This means requiring health care providers to implement a system for periodically reviewing records and audit logs, and maintain records of hardware and electronic media when any copies are provided.
- By law, even if a provider only keeps records on paper, they are required to provide a patient who requests an electronic copy of their medical records with that electronic information if they have the means to do so. Providers may only charge reasonable fees for the costs and supplies associated with providing the electronic information, such as when records are provided on a CD or USB drive.
Privileges and Reporting
In some situations, including certain lawsuits and criminal cases, physicians may be required to disclose medical information. However, in New Jersey, health care providers can asset a privilege to not testify about a patients’ mental health or mental history.
In addition to this privilege, there are certain circumstances that would require a provider to disclose a patient’s medical information. This includes situations involving child abuse, venereal disease, AIDS (though HIV/AIDS records containing personally identifying information are confidential), and pertussisus vaccination.
Corrections to Medical Records
Exercising your right to access your medical records can help you identify any error or inaccuracies, including even seemingly small errors (like misspelling) that can have big consequences as we discussed on our previous blog. If you think information in your medical or billing record is not correct, you have the right to request a change. By law, your provider or your health plan must respond to your request, and if they created the incorrect information, must change it to be accurate.
Why is accessing my medical records important?
Patients’ rights to access their medical records are important for several reasons:
- It empowers patients to be more in control of health care decisions.
- Patients can better monitor chronic conditions, follow treatment plants, identify and correct medical record errors, track disease management and treatment progress, and contribute important information to help their doctors.
- New innovations in medical records, including electronic information, can help provide real-time information when it is needed.
Protect Your Health & Your Rights
Understanding your rights when it comes to health care and your medical records is important to your health, and to making the informed decisions that can help you better manage your wellness. It can also help you identify mistakes that may very well lead to harm and preventable consequences caused by errors that could and should have been avoided, or other forms of medical malpractice. If you have additional questions or would like more information about your rights to medical record access, you can learn more on the U.S. Department of Health & Human Services website.
At Levinson Axelrod, P.A., our New Jersey medical malpractice attorneys have extensive experience protecting the rights of patients and families when preventable errors lead to injuries, illnesses, and adverse health consequences. If you have questions about a potential case and your rights, our legal team is readily available to help. Contact us to speak with an attorney today.