Clayton v. Ingalls Clarifies $20 Medical Records Fee

Editor’s comment: We are happy to report our view the Appellate Court got this one right! Please remember it may still be appealed to a very liberal Supreme Court—watch this space for ongoing news.

By way of history, in 2000, a ruling from the Appellate Court in Clayton v. Ingalls Memorial Hospital has created confusion for the last decade. In Clayton, the Court ruled a witness who had to bring ‘medical records’ to court was entitled to a $20 witness fee and mileage. The ruling confusingly states the witness is not entitled to copying costs to bring ‘medical records’ to court. Numerous WC attorneys, on both sides of the bar, seized upon this ruling to create an “urban legend”—if a medical provider didn’t want to come to court with records, you would receive only $20 and provide unlimited copies of medical records!!

The logical glitch that was promulgated by Clayton proponents is the ruling obfuscates the difference between original medical records and copies of medical records. Please note Illinois physicians, hospitals and healthcare givers are required by law to create and store original medical records for all care. Disclosure of private health information in original medical records is guided by HIPAA and has to be followed; inappropriate disclosure may violate federal law. Health care givers cannot allow original medical records to be brought to a hearing and casually left lying around or to be kept for an indefinite period by the patient, their counsel, the employer or the Arbitrator. While our law contemplates original medical records can be inspected by an Arbitrator—to follow state and federal law, the keeper of the original records has to then bring them back for safe and secure storage. What followed the Clayton ruling was form correspondence from numerous respondent and petitioner’s WC firms across Illinois who would send a subpoena with a $20 check to a healthcare giver or hospital and tell them they were forced to come to court with the ‘records’ or avoid a court appearance by sending unlimited copies of ‘records’ for the $20. We consider it preposterous for an Illinois hospital to have to make copies of 500, 1,000 or 10,000 pages of original medical records for only $20. We received numerous complaints and inquiries from health care providers across Illinois protesting the concept. Dr. David Fletcher at Safeworks Illinois had the guts and brains to say no and be willing to put the money on the line and fight it. Dr. Fletcher estimates he was losing $20,000-30,000 a year in costs to process record copying requests in excess of the sums of $20 checks issued with subpoenas that misstated the Clayton ruling. Dr. Fletcher hired KC&A to represent him and Safeworks in the challenging this mischaracterization of the Clayton ruling.

We assure all of our readers the attorneys who made this request and similar requests did not want anyone to come to court with original medical records for inspection by the Arbitrator to then have the original medical records brought back—the claimant attorneys all want effectively free copies of the original medical records that can be used to prepare for hearing and when the hearing is convened, submitted into evidence and made part of the record. Remember the vast majority of Illinois WC claims settle year-in and year-out; the records need to be in the attorneys’ hands to facilitate the process. We have written and called numerous Plaintiff/Petitioner law firms to advise they were misleading the public to make the claim that a witness fee is a payment for copying costs. We filed not one but two requests with the Illinois Workers’ Compensation Commission asking them to tell attorneys to stop modifying the Commission’s official subpoena form to mislead folks by asserting they were entitled to unlimited copies of medical records for a $20 witness fee. The Commission did what they usually do with such requests—nada. We assure everyone in the industry on both sides there is no provision in Illinois workers’ compensation law or rules that set a medical records copying charge—the Act was drafted long prior to the invention and promulgation of photocopying machines and it has never been updated.

In two recently published decisions rendered by the Appellate Court, Fourth District, Holtkamp Trucking v. David Fletcher, Gen No. 4-09-0587 and Safeworks IL Occupational et al. v. Julia Wills, Gen No. 4-09-0827, the Appellate Court clarified exactly what the Commission can and cannot do under the Act when it comes to subpoena power. Prior to these two decisions, Clayton confirmed the unassailable position that if you serve a subpoena and pay a witness fee and mileage, the witness has to bring original medical records to the Commission for inspection by the Arbitrator at the hearing. It also paradoxically says you don’t have to pay copying costs for a witness to bring original medical records to the Commission for inspection by the Arbitrator at the hearing. We here at KC&A have always agreed with that position and feel it accurately states the law of the land in our fair state. What numerous lawyers have “mis-stated” about Clayton is their unusual requirement the witness, having been served a witness fee only, make unlimited copies of the original medical records at their own cost and forward them to the person sending the subpoena. Neither Illinois law nor the Clayton ruling says that. In both of the underlying claims in Holtkamp v. Fletcher and Safeworks v. Wills, a medical provider was served with a subpoena and we agreed to bring original medical records but would not create or bring copies. When counsels learned we refused to make and deliver photocopies at our expense, the Arbitrators ordered us to do so and an application was filed in the respective Circuit Court to enforce the subpoena.

In Holtkamp v. Fletcher, the Circuit Court held Dr. Fletcher and Safeworks Illinois in contempt for failure to provide the records, ordered the medical provider to furnish photocopies and ordered the requesting party to pay for the copies at 15 cents per page. Where they got the .15 cents per page number, we cannot say—no evidence was taken or presented on the issue and with respect to the Court, we think the judge simply made it up as his view of a fair number. In Safeworks v. Wills, the Circuit Court ruled the medical provider was in contempt for not presenting the records, and ordered us to turn over unlimited photocopies of the original medical records at our cost. The two decisions rendered by the Appellate Court on appeal were well thought out and confirmed our position on behalf of Dr. Fletcher and Safeworks. The Appellate Court confirmed it was not overruling Clayton, and in fact the decisions were entirely consistent with that ruling. The Court stated the Commission does not have the power to force a medical provider to create and turn over photocopies for free. The Court stated in Holtkamp “The subpoena might just as well have commanded [the medical provider] to mail a stethoscope to plaintiff’s attorney, because the medical records were [the medical provider’s] property, the same as a stethoscope. The Commission cannot confiscate [the medical provider’s] property by commanding [them] to mail it to plaintiff’s attorney, as the Commission did in its subpoena in this case.”

The Court went on in Holtkamp to analyze Section 8(a) of the Act which states “every physician tendering treatment shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer.” The Court held furnishing reports meant furnishing for inspection, and not giving them away – they also noted the requirement of permitting the records to be copied would be superfluous, a finding courts are loathe to assign to portions of a statute. In both cases, the Court ruled the only thing the Commission was able to enforce, as a power it was given under the Act, was to compel a provider to appear with original documents in hand. In both cases, the Appellate Court notes there is a provision of Illinois law that deals with reimbursement for copying charges, and that is 735 ILCS 5/8-2001(d) (West 2008). The Court stated it well in Safeworks v. Wills: “…Section 16 of the Workers’ Compensation Act did not require the subpoenaing party to pay any per-page copy fees or retrieval fees. That is true. Because section 16 does not require the making of any copies, section 16 does not require any copy fees. To the extent, however, that the law does require [the provider] to copy records, the law entitles [the provider] to reimbursement.”

The Court summed up situation perfectly in the Holtkamp decision:

No doubt, most doctors would conclude that they have better things to do than sit in a workers’ compensation hearing all day while the arbitrator and parties go through the original medical records page by page. By the same token, most doctors probably think they have better things to do than operate a photocopying center as a side business that does not even pay for itself…

One would expect that most employers would manage to reach an agreement with doctors to arrange for the duplication and mailing of medical records in return for a reasonable fee, that is, a fee over and above the standard witness fee of $20, which, one may reasonably assume, does not even come close to paying for the [costs associated therewith]…

Perhaps the Commission should consider promulgating a rule whereby a subpoena issued by the Commission could offer an alternative to appearing at the hearing with the original records in hand. The alternative, for example, might be photocopying the records at a certain price per page, which the Commission could specify, and mailing the photocopied records by a certain date. Or perhaps a simpler solution would be to require the employee to sign an authorization for his or her medical records to be released to the employer. Then the employer could avail itself of section 8-2001. We assume that in practice, most medical providers do photocopy records for purposes of workers compensations. While it is likely time for the rules of workers’ compensation to correspond more closely to the modern practice of litigation, that is for the Commission to determine.

While we again feel the Court is again rehashing the weird thought of busy physicians being forced to sit in court with their original records, we feel they got it mostly right—we do foresee instances in which the medical recordkeepers for Illinois doctors and hospitals may have to bring original records to hearings or try to work out an agreement to copy records at a mutually agreed cost. We also point out to all Illinois doctors and hospitals, the vast majority of Illinois medical records subpoenas are defective the minute you see them because attorneys always mail them in derogation of the rules which requires them to be personally served on you.

As such, in practice, the Court has set the landscape as follows:

• If medical record-keeping staff is subpoenaed, they will have to bring the original medical records to the hearing and then take them back after inspection;
• The requesting party can pay for photocopies of original medical records per State Comptroller Hynes’ published rates;
• We can all agree like grown-ups to any other path to get records copied at any reasonable cost; so the sole cost of photocopying and mailing copies isn’t dumped on doctors and hospitals;
• Press for doctors and hospitals to move to electronic records that are much easier to handle.

In our view, in workers’ compensation claims, hospital and medical caregivers will now be able to easily price and recover the reasonable State Comptroller’s rates when photocopying of medical records is required. Until, that is, the Commission changes the rules or posts their own rate for copying charges, which they could easily do. It would certainly be a “shake up” for the new administrations!

For the current State Comptroller’s rates, see below for easy reference:

Record Copy Fees for 2010

The Illinois Comptroller has announced the annual inflation adjustment to the maximum fees which may be charged for paper copies of patient medical records. The following are the new maximum amounts for paper record copies, effective January 20, 2010:

Fee for Paper Copies   2010

• Handling charge                    $24.44
• Copy pages 1 through 25         $0.92
• Copy pages 26 through 50       $0.61
• Copy pages in excess of 50     $0.31
• Copy made from microfiche or microfilm $1.53

Source: http://www.ioc.state.il.us/office/fees.cfm

Please don’t act unprofessional and/or “threaten” Doctor Fletcher or anyone else about this issue

We are advised numerous claimant firms may now be distressed by having to pay these moderately higher medical record copying costs as they may no longer be able to get unlimited copies of medical records for $20. We urge them to get over it. We don’t feel it was ever appropriate for anyone to misstate the law or rules as many people were doing in Clayton. We point out claimant attorneys who order photocopies of medical records always recover those costs either at settlement or when they receive payment of an award. We also strongly suggest that anyone on either side who objects to the rates posted by the State Comptroller should complain about it to the appropriate authorities. We are also confident you may be able to contact numerous copy services and obtain copies at rates that are lower than the State Comptroller’s rates. We also invite anyone to contact the great folks at Safeworks Illinois to seek a volume photocopying discount at fair values. Finally, we were advised some folks feel doctors and hospitals should have to pay effectively all medical record photocopying costs because they are wildly profitable—if you feel that way, you are being childish because many doctors and hospitals, particularly in central and southern Illinois are hanging by a thread in this rotten economy.

We are advising all of our hospital, physician, nursing and other clients, if you get another form letter asking you for unlimited copies of original medical records for $20, you should send them pricing under the State Comptroller’s guidelines along with the links to these two rulings. If you need the web link to the rulings, send a reply.

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