David Camp, NOSSCR CEO and General Counsel

Update on Medical Records Costs Advocacy

NOSSCR has been advocating for reduction or elimination of the costs of medical records for several years, with increased activity over the past year. There are several approaches to the solution, but first it is helpful to summarize the problem. We call it the “Disability Tax” because those patients/claimants who are less impaired have easy and free access to their medical information using portals, while those who are more impaired and need a helper (appointed representative, attorney, social worker, family, etc.) are no longer protected by the current regulatory structure, and thus costs, delays, and barriers are imposed. Being more disabled incurs a cost, while being more functional avoids the cost. This is the fundamental framing of the problem–NOSSCR’s members are advancing costs for medical records that will ultimately be borne by the claimant–costs that are created by a Disability Tax that only impacts those who struggle to use portals for health information.

While federal statute and regulation changes are necessary, they are also slow. Instead of waiting, NOSSCR is advancing a multi-pronged approach to yield meaningful change on a faster timeline, bringing necessary relief to our clients and our practice area.

One approach is to update state statutes. NOSSCR has been tracking and assisting state-by-state, with local NOSSCR members doing amazing work. Consider Virginia, where Joanna Suyes was instrumental in a legislative update to Code of Virginia § 8.01-413(B)(7) to provide one free copy of a patient’s medical records to any representative in a Social Security claim (effective July 1), or Maryland where Andrew Sindler recently provided written and oral testimony before the state House and Senate committees, prompting them to add language to Code of Maryland, Health–General § 4-304(c)(5) to ensure that attorney requests for records were afforded the same complimentary status as those from a claimant, their personal representative, or a non-profit agency. (Andrew is co-hosting the workshop “How to Advocate for Improved State Medical Records Costs” in San Diego with Emma Webb, who was key in improving Tennessee’s medical record law last year–make plans to attend to learn how you can make changes in your state).

Another approach is to work with the Department of Health and Human Services (HHS) for a determination that the charges imposed–while permitted under state law caps–are nevertheless unreasonable in this context, given the stark difference between the records’ access for patients with the capacity to access portals versus those without.

Yet another approach is to frame these problems as what we know they often become in practice: “record blocking.” The costs borne by those with greater impairments, who are less capable of navigating a complex technological web, prevent full access to representation on SSI and other claims, and sometimes prevent full and proper consideration by SSA as a result.

Finally, we have been working closely with Epic Systems and Social Security’s IT executives to further Commissioner Bisignano’s strong support for expansion of the HIT integrations–where evidence is transmitted directly from health systems to SSA without cost to claimants or delay. This engagement still sits at less than 20% of evidence, but it is growing and we believe there are ways to accelerate that growth in coming months.

To foster these several efforts, we rely on you as members. Please continue to update us on state-level activity where bills are being considered (such as in Missouri), and help us by visiting the Hill and educating your elected officials about the problems your clients face. We’re working with several teams on our approaches to HHS officials, and already have the strong support of SSA and the private sector. We will reach a point in coming years where NOSSCR members’ need to advance payment for medical records is rare, not the norm; where the properly authorized sharing of health data with the agency can be done cost-free, just as happens now between hospitals. We’re not there yet, but we’re making progress. Join us in this fight–together we can bring real change.