Medical Records for Deceased

§ 41-10-3. Heirs of decedents authorized to obtain copy of decedent’s medical records under certain circumstances; termination of authorization.

Universal Citation: MS Code § 41-10-3 (2018)

• (1) The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
  • (a) “Heir” means any person who is entitled to a distribution from the estate of an intestate decedent, or a person who would be entitled to a distribution from the estate of a testate decedent if that decedent had died intestate.
  • (b) “Medical records” means any communications related to a patient’s physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including communications that are prepared by a health-care provider or by other providers. The term does not include (i) materials that are prepared in connection with utilization review, peer review or quality assurance activities, or (ii) recorded telephone and radio communications to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity; however, the term includes communications that are recorded in any form or medium between emergency medical personnel and medical personnel concerning the diagnosis or treatment of a patient.

• (2) Where no executor or administrator has been appointed by a chancery court of competent jurisdiction regarding the probate or administration of the estate of a decedent, any heir of the decedent shall be authorized to act on behalf of the decedent solely for the purpose of obtaining a copy of the decedent’s medical records. The authority shall not extend to any other property rights relating to the decedent’s estate.

• (3) A custodian of medical records may provide a copy of the decedent’s medical records to an heir upon receipt of an affidavit by the heir stating that he or she meets the requirements of this section and that no executor or administrator has been appointed by a chancery court with respect to the estate of the decedent.

• (4) The authority of the heir to act on behalf of the decedent shall terminate upon the appointment of an executor or administrator to act on behalf of the estate of the decedent. However, the custodian of medical records shall be entitled to rely upon the affidavit of the heir until the custodian of medical records receives written notice of the appointment of an executor or administrator.

• (5) A custodian of medical records shall not be required to provide more than three (3) heirs with a copy of the decedent’s medical records before the appointment of an executor or administrator.

• (6) The provisions of this section shall not prohibit an executor or administrator from requesting and receiving the medical records of a decedent after his or her appointment.

Minor Business

It is well-settled under Mississippi law that Chancery Courts have great authority and latitude when it comes to conducting minor’s business.  See Miss. Const., Art. 6 § 159 (“The chancery court shall have full jurisdiction” in matters and cases involving “minor’s business”).  See also Alack v. Phelps, 230 So.2d 789, 793 (Miss. 1970) (“Children are under the disability of minority and cannot act for themselves.  The equity court will protect their rights.”). 

Long ago, the Mississippi Supreme Court summed up well the broad authority conferred upon Chancery Courts to protect the rights of minors:

Infants and persons of unsound mind are disabled under the law to act for themselves.  Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability….It is the inescapable duty of the said court and the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants….The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers…and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court.

Union Chevrolet Co. v. Arrington, 138 So. 593, 595 (Miss. 1932).

Treating Physicians vs. Expert Witnesses

Rule 26(b)(4)(A) of the amended rule of the Mississippi Rules of Civil Procedure titled: Trial preparation: experts appears to distinguish between experts retained or specially employed to provide expert testimony (hired guns) in part (ii) and an expert who has not been retained or specially employed to provide expert testimony (such as a treating physician) and provide much less information.  The case of Chaupette v. State, 136 So. 3d 1041 (SCT 2014) states that a physician can testify without being accepted as an expert regarding:  1)  “the facts and circumstances surrounding the care and treatment of the patient”; 2) what his records about the patient reveal”; and 3) “what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient.”  However, a physician cannot testify about the significance of a patient’s condition or industry standards without first being accepted as an expert.  (citing Foster v. Noel, 715 So 2d 174 and Langston v. Kidder, 670 So. 2d 1. So if the treating physician is just going to testify about the patient’s condition, treatment and his records, he doesn’t have to be listed as an expert.  If the treating physician testifies about the effect of the injury or condition, such as future restrictions or future medical expenses, he does need to be listed as an expert.  To be safe, the physician should be listed as an expert per Rule 26.

HIPPA Case of Interest

On Jan. 29, 2020, OCR released a notice regarding a recent federal court ruling in the case of Ciox Health, LLC v. Azar, et al., where a federal judge in the District Court for the District of Columbia 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 (“PHI”) of an individual … in an electronic format.”¹ Additionally, the court held that the fee limitation set forth at 45 CFR § 164.524(c)(4) should 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 Ciox Health case centered on the restrictions the Department of Health and Human Services (“HHS”) and the Office for Civil Rights (“OCR”) put in place in the 2013 Omnibus Rule² and through informal guidance published in 2016 regarding fees that can be charged to patient in searching for, retrieving, and delivering their records and PHI as it pertains to third-party directives. Third-party directives are a mechanism promulgated by the HITECH Act that granted individuals the right to obtain a copy of their PHI maintained electronically, and “if the individual so chooses, to direct the covered entity to transmit such copy directly to an entity or person designed by the individual.”³ Additionally, the HIPAA Privacy Rule permits a reasonable cost-based fee to provide the individual (or the individual’s personal representative) with a copy of the individual’s PHI, or to direct a copy to a designated third party. The fee may include only the cost of certain labor, supplies, and postage (this fee is also referred to as the “Patient Rate”).⁴

The 2013 Omnibus Rule broadened the third-party directives to PHI maintained in any format, not just electronic records. Moreover, the 2013 Omnibus Rule amended the Patient Rate and required actual labor costs associated with the retrieval of electronic information to be excluded.⁵

In 2016, HHS issued a guidance document titled Individuals’ Right under HIPAA to Access their Health Information 45 C.F.R. § 164.524 (the “2016 Guidance”).⁶ The 2016 Guidance made two notable requirements that gave rise to the current litigation. Most significantly, HHS declared that the Patient Rate applies “when an individual directs a covered entity to send the PHI to a third party.”⁷

“This limitation,” HHS said, referring to the Patient Rate, “applies regardless of whether the individual has requested that the copy of PHI be sent to herself, or has directed that the covered entity send the copy directly to a third party designated by the individual (and it doesn’t matter who the third party is).”⁸

Additionally, in the 2016 Guidance, HHS provided a methodology to calculate the Patient Rate in requests for an electronic copy of PHI maintained electronically. The methodology would require the entity to determine a fee by calculating the actual allowable costs to fulfill each request or by using a schedule of costs based on the average allowable labor costs to fulfill standard requests. HHS also provided an option for entities to charge a flat rate for requests for electronic copies of PHI not to exceed $6.50 as an alternative to going through the process of calculating these costs.

In this case, HHS was sued by Ciox Health, a medical record retrieval company, over the changes to the Patient Rate set forth in both the 2013 Omnibus Rule and the 2016 Guidance. Ciox Health argued that the $6.50 flat fee is an arbitrary figure that bears no relation to the actual cost of honoring patient requests for copies of their health information, and such a low fee has negatively impacted its business. Ciox Health claims the 2013 Omnibus Rule and the 2016 Guidance, “unlawfully, unreasonably, arbitrarily and capriciously,” restrict the fees that can be charged by providers and their business associates for providing copies of the health information stored on patients.

The district court, in declaring the changes to the Patient Rate set forth in the 2013 Omnibus Rule unlawful, held that HHS cannot rely on its general rulemaking authority to supplement the limited-scope, third-party directive enacted by Congress in the HITECH Act. The court held that the 2013 Omnibus Rule’s expansion of the third-party directive is therefore arbitrary and capricious. Moreover, the district court held that the 2016 Guidance that worked a change into the Patient Rate was akin to a legislative rule that HHS had no authority to adopt without notice and comment. As a result, the court vacated the 2013 Omnibus Rule’s expansion of the HITECH Act’s third-party directive beyond requests for a copy of electronic records with respect to PHI of an individual in an electronic format. The court also declared unlawful and vacated the 2016 Guidance as it extended the Patient Rate to third-party directives without going through notice and comment.

Health care providers and medical records access companies are no longer required to limit the fees charged to their average costs, or charge a $6.50 flat fee, when a patient requests their medical records be transmitted to a third party. The fee limitations will still apply to individuals when they request their own records, however, as decided in the Ciox Health decision, on January 23, 2020.

OCR released a notice on Jan. 29, 2020 that the right of individuals to access their own records and any fee limitations that apply when exercising this right still apply. However, OCR appears to have at least accepted this ruling for now, as it pertains to third-party directives. OCR stated that it will continue to enforce the right of access provisions in 45 CFR § 164.524 that are not restricted by the court order. The court order can be viewed here.