Monday, August 15, 2016

The Office of Civil Rights: The Tale of a Medical Records Renegade

According to Wikipedia, the Office for Civil Rights (OCR) is a sub-agency of the U.S. Department of Education that is primarily focused on protecting civil rights in federally assisted education programs and prohibiting discrimination on the basis of race, color, national origin, sex, sexual orientation, gender identity, handicap, age, or membership in patriotic youth organizations.  What has that got to do with charging individuals for medical records?  Apparently, a whole lot. 

Recently, I received a letter from OCR that a patient reported my practice for not agreeing to mail (for free) all medical records as requested.  There are basic rules in place as part of HIPAA and HITECH for everyone’s protection:  a release of records must be signed and include a copy of photo identification to protect from a security breach.  The individual requesting a file refused to submit a signed release form, and was unwilling to provide a copy of photo identification; rather the Office of Civil Rights was contacted and opened an investigation against us for discrimination. 

I am a pediatrician, so the patient in question is a child.  I have never laid eyes on the particular parent who was requesting records and have never seen a picture either.  I do not know their race, color, national origin, sex (it is a gender-neutral first name), sexual orientation, gender identity, handicap, age, or status of membership in a patriotic youth organization.  Could someone please tell me how I can discriminate against them?  

Charges for copies of medical records vary state to state. Our malpractice insurance company mails out a postcard each year, updating the allowable fees according to the law, and my office follows the rules to the letter.  Washington State allows $1.12 per page for the first 30 pages, $0.84 per page thereafter, and a $25 clerical searching and handling fee.  I turned all the necessary records over to OCR for review. 

Today, an email received from my “equal opportunity specialist,” informed me charging patients one per-page fee for the first 30 pages and a different (cheaper) per-page fee for the remainder does not appear to be a cost-based calculation, in his opinion. It is not compliant with the Privacy Act; therefore, I must change my policy.  Now is he an accountant or lawyer, cost-based calculation is a matter of opinion right?  Currently, thirty-three (33) other states have the exact same rule, with variable “per-page” charges.  How can so many states be getting away with this?  Side note, what on earth does this have to do with Civil Rights?    

Additionally, the $25 “fixed fee”, may not include costs associated with verification; documentation; searching for and retrieving the PHI; … even if such costs are authorized by State law.  The “searching and handling fee” is apparently not permissible either.  Being the thorough investigator that I am, I discovered twenty-seven (27) of 50 states charge a “search fee.”  In all fairness, one calls it a “certification” fee.  The very broad interpretation of the law by OCR supersedes 60 state statutes which are now out of compliance.  

My response to my very busy OCR lawyer/stalker was to respond with the Omnibus Rule, effective 9/23/2013, which "allows for the identification of labor costs for copying protected health information (PHI), which can include a reasonable cost-based fee for time spent creating and copying the file".  Our new policy now has a $25 clerical labor fee for staff time needed to copy records.  Take that, OCR.  No dice. My captor will not allow that on grounds “changing the name of the fee” in principal does not change its purpose.  Seriously, I could not make this stuff up.  When did we physicians give up our freedom and basic right to earn a living?  

There are 650 lawyers at the Office of Civil Rights.  Does anyone else feel our tax money is being wasted chasing down medical record renegades charging illegal “search” fees?  I figured out their angle.  Every case must appear to be a civil rights issue, and then these lawyers have job security.  My practice just happens to be their current victim.   

In my opinion, there are a lot of important civil rights issues playing out in the rest of the country right now.  Those issues need attention, time, and care.  We should demand OCR is a good steward with tax money that supports them.  What happens if an important governmental figure finds out all 649 lawyers are not necessary to keep OCR up and running?   Lawyers at OCR would rather take on namby-pamby stuff, like harassing a rural primary care physician’s office with nothing better to do than save lives and treat children. 

Bring it on, OCR; I have more in store for you.  If it is that easy to open a case, I am fully prepared with a complaint of my own.  I happen to have been born and raised in Washington State.  I am Irish Catholic with a Middle Eastern last name.  I am married to a man who is half-Scottish and half-Hispanic.  We have four children who are Irish, Scottish, French, Dutch, Spanish, Arabic, and Turkish.  After the rigidity demonstrated by the lawyer from the Office of Civil Rights, I feel harassed and discriminated against based on my “ethnicity” and am thinking of filing my own case of harassment.  That should prevent OCR lawyers from focusing on real civil rights issues in America.  Do you agree job security is their goal now? 

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