Slow Progress In Obtaining And Analyzing Medical Records Via IT

      From a recent report by Social Security's Office of Inspector General (OIG):

Despite spending more than 10 years trying to increase the number of medical records received through health IT, SSA still receives most records in paper or ERE format. In the Fiscal Year (FY) that ended on September 30, 2020, SSA received only 11 percent of medical records through health IT. 

SSA experienced a decreasing trend in adding new health IT partners from 56 in FY 2018 to 12 in FY 2021 (as of August). During this time, SSA reduced the number of staff and contractors involved in health IT outreach and did not fully fund projects to increase electronic medical evidence. Also, expanding the number of health IT records by adding new partners is not a unilateral decision made by SSA, as prospective partners must be willing and able to meet SSA’s technical requirements, and COVID-19 was a factor. In October 2021, SSA informed us it was (a) working on Memorandums of Understanding with 3 entities to exchange health IT records with over 30 large health IT organizations and (b) adding more staff to develop and implement strategies to expand health IT.

Challenges in expanding the number of health IT records include some partners’ inability to send sensitive medical records, acceptance of SSA’s authorization form to release records to the Agency (Form SSA-827), and medical industry-wide differences in patient-identifying data fields. 

Additionally, SSA has had limited success analyzing medical records because MEGAHIT is limited to analyzing only structured data. MEGAHIT generated data extracts on only 7.3 percent of the 1.6 million health IT records SSA received in FY 2020. The extracts assist SSA disability examiners in making accurate disability determinations. Since 2018, SSA has been developing and testing the Intelligent Medical-Language Analysis GENeration application with new capabilities for reviewing medical records. As of August 2021, SSA was still testing and rolling out this application to its offices. ...

Is This A Good Idea Or Just Too Intrusive?

     From a posting by Social Security on SAM.com:

This is a Request for Information (RFI). This RFI is for informational and planning purposes only and shall not be construed as a solicitation or as an obligation or commitment by the Government.  ...

The Social Security Administration (SSA) is conducting market research to identify potential vendors capable of providing record locator services to help identify interactions between a disability claimant and the healthcare system (e.g., physician visits, hospitalizations). ...

During the application process [for Social Security disability benefits], claimants may spend a great deal of time gathering information and trying to remember dates of medical treatment and provider details.  The process relies solely on claimant recall for the names and addresses of medical providers and dates of treatment.  As such, the body of medical evidence assembled for evaluation may be incomplete and omit information that could be critical in making an accurate determination of disability. ...

Technical Requirements:

• The service shall support the ability to accurately identify a patient based on key demographic information supplied by SSA, such as patient name, date of birth, gender, address, and Social Security number.
• The service shall support the ability to provide an encounter/treatment history within a specified timeframe for an identified patient, which consists of a list of treating facilities/providers, including address information, Medical Record Number (MRN), date of encounter, and conditions that were treated or evaluated.
• The service shall support the ability to provide a list of active medications within a specified timeframe for an identified patient, including the prescription date along with the prescribing doctor, facility, and address.
• The service shall support the ability to identify the electronic address of a specific patient’s electronic medical record based on key demographic information supplied by SSA.  ...
• The service shall support the ability to notify SSA when specific patients, identified by key demographic information supplied by SSA, have had medical encounters, and provide information about the treating provider or facility, the date of the encounter, and the electronic location of where the associated electronic medical record could be found.

      I really want for Social Security to have a complete medical record on my clients. I try hard to figure out who they've seen and to help complete the record set that Social Security has. Contrary to what some would think, the problem isn't claimants trying to conceal medical sources they've seen. I don't think that's what this RFI is even about. The problem is that medical histories get complicated and claimants forget. Still, this RFI seems a bit creepy to me. Do we really want the government to have the power to troll across all medical records to find every last bit of records on an individual? To be able to construct a list of prescribed medications at any given moment? Would you want the government having this kind of power to gather your medical records?

SSAB Roundtable On Medical Evidence Collection

     From the Social Security Advisory Board (SSAB):

On Thursday afternoon, July 29, from 12:45 to 4 pm EDT, the Board will bring together state Disability Determination Services managers and staff, a claimant attorney, and former Social Security executives for a roundtable on the agency’s medical evidence collection.

Register Here

The roundtable will cover an introduction to the evidence collection process and state approaches to collecting evidence.

Participants:

• Bob Emrich, Senior Technical Consultant SSA Portfolio, Peraton; former Director, Federal DDS, SSA (retired)
• Marjorie Garcia, President, National Association of Disability Examiners (NADE); Disability Analyst, Oregon DDS
• Paul Kreger, Medical Professional Relations Officer, Iowa DDS
• Jennifer Nottingham, Legislative Director, NADE; Operations Manager, Nevada DDS
• Marjorie Portnoy, Managing Partner, Portnoy Disability Practice in Radnor, Pennsylvania
• Teresa Sizemore-Hernandez, Professional Relations Team Leader, Virginia DDS
• Melissa Spencer, former Deputy Associate Commissioner, Office of Disability Policy, SSA (retired)
• Sara Winn, Immediate Past President, NADE; Program Specialist, Louisiana DDS

Class Actions On HITECH Violations? Sounds Good To Me

     From a blog post on JD Supra:

In the wake of the 2019 United States Department of Health and Human Services, Office of Civil Rights (“OCR”) enforcement actions against Bayfront Health St. Petersburg (“Bayfront”) and Korunda Medical, LLC (“Korunda”) pursuant the HIPAA and HITECH Right of Access Initiative—for violations of the rights of patients to obtain access to their medical records promptly, without being overcharged, and in the readily producible format of their choice—private lawsuits have been on the rise to enforce patients’ right to access.

Of most recent note, the matter Russell v. Healthalliance Hospital Broadway Campus, and Ciox Health, LLC, 1:20-cv-01204 (USDC No. Dist. of NY), seeks not only monetary damages for failing to grant access to the medical records of the deceased husband of the Plaintiff, but also certification of a class action on behalf of those similarly situated. ...

Given the fact that 42 U.S.C. § 1320d-5 provides for penalties of $50,000 per violation and up to $1,500,000 in fines per calendar year, the prospect of class actions under this law are to be taken very seriously. ...

     If you work at Social Security, you may wonder why I post this. If you represent claimants, you know all too well. Almost all larger medical providers and some who aren't all so large have entered into contracts with outside companies, such as Ciox, to handle medical records requests for them. It's obvious that these companies, if not the medical providers, regard responding to medical records requests as an opportunity to gouge the requesters. It's a monopoly situation. If my client was treated at a particular hospital or medical practice, there's only one place I can go to get those medical records. There are supposed to be limits on this, provided by HITECH and state laws but these companies try to evade the limits with ever more inventive explanations for why they're allowed to charge more than the law allows. They know in the end we need the records now and we'll have to pay up. We file complaints with the OCR but those take time and the medical records companies involved are almost never punished for their outrageous behavior. The situation has devolved into almost hand to hand combat. Class actions sound like a good idea to me.

Congressmen Ask For Review Of Phone Service And Process For Obtaining Medical Evidence

     From The Observer of Dunkurk, NY:

House Ways and Means Social Security Subcommittee Chairman John B. Larson and Republican Leader Tom Reed have sent two letters to Social Security Administration Inspector General Gail S. Ennis asking for a review of SSA’s telephone service during the COVID-19 pandemic and SSA’s process for obtaining medical evidence for disability claims.

Big HITECH Setback

     An e-mail message from the Department of Health and Human Services (HHS) Civil Rights Division listserver:

On January 25, 2013, HHS published a final rule entitled “Modifications to the HIPAA Privacy, Security, and Enforcement Rules Under the Health Information Technology for Economic and Clinical Health Act, and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules.”  (2013 Omnibus Rule).  A portion of that rule was challenged in federal court, specifically provisions within 45 C.F.R. §164.524, that cover an individual’s access to protected health information.  On January 23, 2020, a federal court vacated the “third-party directive” within the individual right of access “insofar as it expands the HITECH Act’s third-party directive beyond requests for a copy of an electronic health record with respect to [protected health information] of an individual  . . . in an electronic format.” Additionally, the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.

The right of individuals to access their own records and the fee limitations that apply when exercising this right are undisturbed and remain in effect.  OCR will continue to enforce the right of access provisions in 45 C.F.R. § 164.524 that are not restricted by the court order.  A copy of the court order in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020), may be found at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0040-51.

     This means that Ciox and other similar companies are now bound only by state laws limiting how much they can charge. It's nearly hand to hand combat against these ripoff artists.

Are Electronic Medical Records A Good Thing? It’s Complicated

     If you spend a lot of time reading medical records, and I know that, like me, many of you do, read this New Yorker piece by Atul Gawande, Why Doctors Hate Their Computers.

Be Careful What You Ask For

     I just uploaded a 500+ page medical report on one of my clients. This isn't unusual these days. Electronic medical records have led to explosive growth in the quantity of medical records. The hearing offices are drowning in medical records. Why do I have a feeling that Social Security's next Ruling will urgently demand that I not submit lengthy medical reports, that I somehow cull out what's not really important?

I'm Not Joking

     Social Security is in the pilot phase of developing DeDoop, a program that is supposed to remove duplicative medical records from the electronic files of Social Security disability claimants.

Be Careful What You Ask For

     I heard recently from an attorney who requested some medical records on his client from a hospital. The hospital sent the attorney a good deal more than he requested but it was all on his client. It came to 12,000 pages. If we didn't have regulations requiring that EVERTHING be submitted, the attorney would have culled out the records than hadn't been requested, records that weren't material to the determination of disability such as nurses notes, medication records, endless lab tests, etc, but he can't do that now. He's submitting the whole thing.

Ever Heard Of HITECH?

     If you work at a hearing office, you probably already know that Social Security disability claim files have been getting longer over the last few years. Let me explain why this is happening and why it is going to get worse over the next year or two. Also, I'll explain why this has major implications for the Social Security Administration.

     The most important reason files have been getting longer is electronic medical records. It has become easier for medical providers to create and store medical records. When they were storing medical records in physical files, medical providers had incentive to keep the records concise. How do you store a 2,000 page physical file? How does a physician make use of such a huge physical file? Once things went electronic, medical files started ballooning. Medical records systems used in many physician offices and at some large providers, including the VA, regurgitate almost the entire medical history as a new medical record every time a patient sees a physician. With VA records in particular, the new material gets lost in a mass of repetition.

     Because of electronic medical records, Social Security hearing files are exploding. Files of 1,000 pages or more used to be rare. Now, they're common. Files of 2,000 pages or more were almost never seen in years past. Now, I see them on a regular basis.

     This is going to get a lot worse because of a statute that I'll bet that almost no one at Social Security has heard of -- the HITECH Act. HITECH stands for Health Information Technology for Economic and Clinical Health Act. The Act was designed to encourage physicians to convert to electronic medical records. HITECH happens to address, in passing, a couple of problems that attorneys representing Social Security claimants have had -- slow processing of requests for medical records and excessive charges for providing those records. HITECH puts a time limit on responding to requests for medical records and prohibits providers from charging more than what it actually costs them to provide medical records as long as the records are provided in an electronic format. Attorneys are rapidly switching over to making their requests for medical records under the HITECH Act. It's cutting our costs significantly and making the turnaround time on medical records requests shorter.

     Before HITECH, attorneys were careful to specify exactly what they wanted because they would be paying for each page of medical records. Now, that's no longer important. One thousand pages of medical records are no more expensive to obtain than ten. Even when an attorney makes a narrow request for medical records, providers often send far more than was requested. If you don't have to print out the records and you're not able to charge for each page, why bother sorting out exactly what the attorney requested? Just send the whole thing. And once an attorney receives medical records, even if they are records the attorney didn't ask for he or she has no alternative but to send everything to Social Security. EVERYTHING. That's what agency regulations demands. If you don't do that, you get in trouble. I recently submitted more than 850 pages of medical records recently covering about ten months of outpatient treatment for one of my clients and the medical care she was receiving wasn't all that intensive.

     So why is this important for the agency? It takes a lot longer to review a 2,000 page file than a 300 page file even if most of the 2,000 page file is of zero consequence for the disability claim. Administrative Law Judges cannot be expected to hear 40-50 cases a month and know what they're doing if they have to deal with such huge files. There's no technical fix for this. Exhorting employees to work harder isn't going to help. Social Security is running headlong into a brick wall on this one. And those foolish regulations demanding that attorneys submit EVERYTHING are just making things worse. I told you that you were trying to go after a fly with a sledgehammer but you wouldn't listen.

Regulations On Evaluation Of Medical Evidence Advance

     The Office of Management and Budget (OMB) has cleared Social Security's proposed final regulations on evaluation of medical evidence. Here is the agency's summary of the regulations:

We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to evidence, revising our list of acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising who can be a medical consultant (MC) and psychological consultant (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These proposed revisions would conform our rules with the requirements of the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive primary medical care, simplify and reorganize our rules to make them easier to understand and apply, allow us to continue to make accurate and consistent decisions, and emphasize the need for objective medical evidence in disability and blindness claims.

      These may now be published in the Federal Register. However, the Administrative Procedure Act provides that the regulations cannot come into effect for at least 30 days after publication. There will be a new President by then. We do not know for sure what the new President will do but it's a good bet that all regulations which have been approved but which have not yet come into effect will be put on hold pending review by the new administration and that review may not be complete until there's a new Commissioner. It's not that these new regulations are likely to be unpopular with the new administration but it may still take months before they come into effect and they might be modified. But, then again, who knows what to expect out of the Trump Administration?