The Centers for Medicare and Medicaid Services (CMS) can make a multitude of decisions that negatively affect providers. These could range from denying payments for inappropriate coding to terminating the provider's agreement with CMS entirely. However, providers have recourse when these events occur: they can appeal the decision.

 

Appeals run through several levels. The first few levels involve administrative appeals. These involve hearings and decisions internal to the Department of Health and Human Services and its contracted companies.  To put this in perspective, at these levels, the agency that ruled against you initially is now responsible for deciding whether it was correct to do so. While providers often have difficulty winning at these levels, it is only after appealing through these levels that providers can appeal into federal court.

 

There are strict filing timeframes and procedures that must be followed by providers, or they may lose their right to appeal. Providers should review all information received from the government or the government's contracted companies. They will generally explain the timeframes and procedural requirements for appealing. After documentation is exchanged and the provider explains why the original decision was wrong, a hearing may be held, after which the hearing officer or judge will render a decision. Eventually, if you appeal your case will be heard in federal court, before a federal judge who is not a part of the Department of Health and Human Services.

 

A backlog has formed within the administrative hearing process, with one stage expected to require two years alone. So, providers should prepare for a potentially long process. The process is also complicated, and providers with questions should contact Brandon Goldberg, Esq. at bgoldberg@barmak.com or 609-454-5351.

 

As with almost all things healthcare related, the amount of money that healthcare providers are permitted to charge patients for a copy of their medical records is governed by regulations. Specifically, New Jersey regulations address what a hospital may charge patients and what "licensees," or people or entities who are licensed or authorized to engage in a health care profession regulated by the Board of Medical Examiners, may charge.

 

Hospitals:

The regulation provides, in relevant part, that if a patient requests a copy of his or her medical record, the hospital must provide the patient with a legible, written copy of the record at a fee based on actual costs within 30 days of the request. Thus, the fee charged for copying records may not exceed $1.00 per page or $100.00 per record for the first 100 pages. If the records contain more than 100 pages, the hospital may charge a copying fee of no more than $0.25 per page for pages in excess of the first 100 pages, up to a maximum of $200.00 for the entire record. A hospital may also charge a search fee of no more than $10.00 per patient per request, and for the actual costs of mailing the medical record to the patient.

 

Licensees and Non-Hospital Healthcare Facilities:

The regulation provides that a licensee or healthcare facility may charge a fee for the reproduction of records, but the fee may not exceed $1.00 per page or $100.00 for the entire record, whichever is less. Additionally, if the record requested is less than 10 pages, the licensee may charge up to $10.00 to cover postage and the miscellaneous costs associated with retrieval of the record.

 

Please note that federal HIPAA regulations also address fees that are permitted to be charged for copies of medical records. Those regulations state that a healthcare provider "may impose a reasonable, cost-based fee, provided that the fee includes only the cost of:

 

(i) Labor for copying the protected health information requested by the individual, whether in paper or electronic form;

(ii) Supplies for creating the paper copy or electronic media if the individual requests that the electronic copy be provided on portable media;

(iii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and

(iv)Preparing an explanation or summary of the protected health information, if agreed to by the individual."

 

Arguably, pursuant to the above federal HIPAA regulation, healthcare providers cannot charge fees that are not cost-based. Consequently, even if a state statute would permit a healthcare provider to charge more than is reasonable and cost-based for medical records, such a state statute may be contrary to, and indeed preempted by, the federal HIPAA regulation.

 

If you have any questions regarding this article contact Aaron Rubin, Esq. at (609) 454-5351 or at arubin@barmak.com. 

 

 

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.

   

Representative Clients: 

Entities:  Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.

 

Providers: Physicians; Therapists; Orthotists and Prosthetists

 

Suppliers:  Durable medical equipment; Long-term care pharmacies; Retail pharmacies.

 

Businesses: Billing; Management service organizations; Independent provider associations

 

Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).

 

Transaction Issues: General Counsel Services; Contracts.
          
Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.

  

Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.
  
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This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

  

For more information, please contact:

David S. Barmak, Esq.

Telephone (609) 454-5351
Fax (609) 454-5361

www.barmak.com