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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