A. After you have complied with legal requirements, you can file a direct request with the nursing home, and they must get you the records within a certain period of time.
One of the most important pieces of evidence in your case against the nursing home will be your loved one’s medical records. These will form the basis for any conclusion that they have suffered an injury and will be the documentation as to the extent of the injury that has been suffered. In other words, they will help your case both on the merits as well as when it comes to the damages phase of your case.
However, it is not always easy to obtain your loved one’s medical records. Nursing homes will not want to give you the records that can form the basis for future litigation against them. Next, your loved one’s medical records will be voluminous and, while they are now generally in electronic format, you will still have to make arrangements to get the printed copies. This means that you will likely be responsible for paying for photocopying costs for thousands of pages.
The biggest obstacle to receiving your loved one’s nursing home records are privacy statutes. Specifically, your family member’s records are governed by HIPAA since they fall under the definition of “medical records.” This will drastically shrink the universe of those who are able to access these records. While some states have tried to pass laws that allows certain people to access nursing home records, the federal courts have struck down these statutes as preempted by HIPAA. In other words, HIPAA is the exclusive law that governs nursing home records and any state laws are disregarded since states cannot legislate in these areas.
However, this does not mean that HIPAA makes it impossible for you to obtain your loved one’s medical records. Instead, it means that you must follow the procedures that HIPAA enumerates in order to receive these medical records.
The first prerequisite is that you must be an authorized personal representative in order to request the records. This is where HIPAA will generally defer to state law in figuring out the definition of who is an authorized representative. This may be different from state to state. The personal representative may not be designated through HIPAA, but rather will be designated through the relevant state law. However, once the authorized representative has been designated, all HIPAA requirements must then be followed.
Assuming that HIPAA is complied with, nursing homes have to promptly release your loved one’s records to you. Then, there are state laws that govern how quickly the nursing home must turn over the records to you. If the resident is receiving Medicare or Medicaid funding, there are federal regulations that govern access to the records and the timeline in which they must be provided. Nursing homes can face penalties if they do not release the records to you within a certain period of time.
This does not necessarily mean that a nursing home will follow the law without you needing to apply pressure. Before requesting the medical records, it is vital to know your legal rights to these records in order to remind the nursing home of these obligations if necessary.
If you have a loved one in a nursing home, it is crucial to designate an authorized representative who can access these medical records if necessary. Even if you do not have any current possible legal issue with the nursing home, it is best to have this in place in case you ever need it. An elder law attorney can help you fulfill the legal requirements for this appointment. Similarly, if you are experiencing any issues in receiving medical records from a nursing home, you can consult with an attorney to find out your next steps. Regardless, the nursing home can be held accountable if they attempt to stonewall you in this area.