21st Century Cures Act clears up any doubt that existed in interpreting “Patient Rates” Aspect of the HITECH Law

On May 1, 2020, the U.S. Department of Health and Human Services issued a new regulation, 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program.    This new regulation, deals with any request for electronic health records, whether coming directly from the patient themself, or from a designated representative on behalf of the patient, e.g., their attorney, and it states these requests are subject to the “patient rates” which are specified in the Health Information Technology for Economic and Clinical Health (HITECH) Act that was enacted in 2009.  The HITECH default price is $6.50.

This May 2020 regulation, does not allow attempts by healthcare providers or their third-party vendors to charge inflated fees for electronic medical record requests.  If they do charge inflated rates these providers or vendors can be penalized for what is  now classified as “information blocking” under the 21st Century Cures Act. Additionally, the regulation clarifies and expands the “patient rate” to any “person or entity designated by the individual”, not just the individual’s “agent” or “personal representative”.

Although the 21st Century Cures Act went into effect on June 30, 2020, the Department of Health and Human Services announced this Act will not be enforced until February 2021, in terms of penalties, due to the COVID-19 pandemic. However, while healthcare providers and their third-party vendors will not be fined until after February, they must still be in compliance with this May 2020 regulation now.

Significantly, attorneys who obtain medical records for their clients are permitted to challenge higher fees that do not act in accordance with the 21st Century Cures Act.

We point out that the federal court decision made in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020) — which may have  barred the Department of Health and Human Services (HHS) from expanding the “patient rates” to a patient’s attorney or some other representatives under the HITECH Act — does not affect the rules put into place more recently by the 21st Century Cures Act promulgated by HHS in May 2020.

The Cures Act effectively AMENDED the HITECH Act to clearly state that the HITECH rates do, without any doubt anymore,  apply to any person, or any entity designated by the patient,  and not simply the patient’s agent or personal rep.

Typically electronic medical records are available through the patient portal provided by the health care provider or one maintained by the patient’s representative allowing downloading of electronic medical records. Alternatively, patients can obtain their records through separate applications available to smartphone users or by electronic delivery through other means, such as a PDF attachment to secure email or by compact disc “CD” (the cost is usually $6.50 per disc).


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