Another dose of legal action in medical records copying battle

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Attorneys representing doctors and “release of information” companies are poised to challenge in administrative court the state’s rule capping what can be charged for copying medical records.

Jacksonville attorney Michael Fox Orr notified Board of Medicine Acting Executive Director Chandra Prine in writing on October 31 that the rule –64B8-10.003 — is vague and/or too broad on its face and that it is unconstitutional.

Orr wrote in his letter to the board that his clients would not challenge the rule if the Board of Medicine makes modifications to it before the end of the year. Ed Tellechea, an attorney with the state Attorney General’s Office and the board’s counsel, was copied on the letter via email.

The Attorney General’s Office did not respond to comment and deferred comment, instead, to the Florida Department of Health.The Florida Department of Health did not immediately respond to a request for comment.

Charges for copying medical records in Florida have been bifurcated for the last five years. The rule allows doctors to charge patients $1 per page for the first 25 pages and .25 cents for anything thereafter. Every other entity, is charged $1 per page under the rule.

A proposal backed by Florida doctors and release of information companies would delete the bifurcated system and, instead, allow doctors to charge $1 per page regardless of who is requesting the information.

The proposal would delete the ambiguity of what attorneys should be charged for seeking medical records on behalf of their clients. Attorneys say they should be charged at the patient rate but the doctors and ROI companies claim only the patient should be charged the lesser rate and that attorneys should be charged the higher amount.

The Board of Medicine has been considering the proposed change for more than one year. The Board will “discuss” the rule at a teleconference meeting this week and a committee of the board will take public testimony on the rule in Tampa on December 4. The full board will be updated on the rule again at its December 5 follow up meeting.

“We are not aware of any legal requirement that we provide the Board with advance notice of our potential contention and alternative position that (the rule) is vague and ambiguous or unconstitutional as applied to attorneys seeking records from physicians,” Orr’s letter reads. “However, in an abundance of caution and in case such notice is required in the context of challenging the constitutionality of an administrative regulation, please accept this letter as providing such notice. Should the board within 60 days from the date of this letter clarify the language of the Rule to address potential ambiguities … physicians and ROI companies would not be forced to challenge the rule as vague and ambiguous in court.”

Here is a copy of Orr’s letter.

The rule is the crux of a class action lawsuit in Hillsborough County Court, Webber v Bactes Imaging Solutions, Inc. Orr filed motions in that case on November 4, asking the judge to allow the defendants to amend their affirmative defense and argue that the rule is unconstitutionally vague and over broad on its face and, additionally, that it is unconstitutionally applied.

The judge has not ruled on the motion.