Collecting Medical Records: HIPAA Information

Medical Records and HIPAA

I already have medical records from another provider in my chart/file. Can I send those to SSA now that I am helping this individual apply for SSI/SSDI benefits?

Most states prohibit the re-release or “further release” of records once they have been released to an entity that originally requested them. However, if you send a request for records using the SOAR Process, which includes (1) a signed SSA-827: Authorization to Disclose Information and (2) a signed Agency Authorization to Release Information (see a sample), you will be able to send those records on to SSA. You can also include a Medical Records Request Letter (see a sample), which explains the purpose of the records request. This process of sending two releases is permitted under the HIPPA Privacy Rule as a “compound authorization.” The regulation can be found in the Code of Federal Regulations: Title 45 Part 164 Section 164.508. Source: http://edocket.access.gpo.gov/cfr_2002/octqtr/45cfr164.508.htm

I received a notice with a patient’s alcohol and drug abuse records that I could not “further disclose” the information. How can I send them on to SSA? 

When providers of substance use services (drug and alcohol) release records, they are required to include the following notice from the CFR Title 42:2.32: “This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.” Source: http://edocket.access.gpo.gov/cfr_2002/octqtr/42cfr2.32.htm

However, the law (CFR Title 42:2.33) allows the records to be disclosed to any entity the person names in the consent. Follow the SOAR Process for collecting medical records outlined above and be sure that the authorization form specifically mentions the release of drug and alcohol treatment records. Source: http://edocket.access.gpo.gov/cfr_2002/octqtr/42cfr2.33.htm

I requested records from a provider using a faxed copy of both the SSA-827 and my agency’s release. This provider will not release them without an original signature on the authorization form and I only have a copy. What do I do?

You should be able to fax/submit a copy of the authorization to request the records. According to a SSA, “may...rely on copies of authorizations if doing so is consistent with other law." Source: https://www.ssa.gov/disability/professionals/ssa827_informationpage.htm#3

Am I allowed to disclose mental health treatment and counseling records to SSA?
Mental health treatment records are a necessary and integral part of the evidence needed for DDS to make a disability determination for someone alleging mental illness as an impairment. You are permitted and encouraged to support a claimant’s application with the disclosure of your records (with proper authorization).

The records that are excluded from this authorization are “psychotherapy notes,” which are a specific type of note not typically a part of most medical records, especially in publicly funded settings. As HIPAA defines the term, “psychotherapy notes means notes recorded in any medium by a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record.

Excluded from “Psychotherapy notes” are medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.”

If you keep psychotherapy notes separate from your other medical records, you can send the set of records without the psychotherapy notes. If you do not keep psychotherapy notes separate from other parts of the medical records, you can legally disclose all of the records. However, you can choose to black out or remove the parts of the records that would be considered psychotherapy notes if they had been kept separately. Another option is to prepare a report that details the critical current and historical aspects of the applicant’s treatment and functional information. For staff familiar with the SOAR training, such a report would be analogous to the  SOAR Medical Summary Report (MSR). For more information, see SSA’s Fact Sheet for Mental Health Care Professionals: http://www.ssa.gov/disability/professionals/mentalhealthproffacts.htm

What do I do if I am being asked to pay for the medical records I have requested?

Most states have laws that regulate what health care providers can charge individuals for copies of their medical records. However, these rules do not necessarily apply to providers requesting records. In addition, some states provide an exception for records needed to apply for a disability benefits program and stipulate that they be provided at no-cost. The National Organization of Social Security Claims Representatives (NOSSCR) has compiled a list of the state statutes and regulations regarding the collection of fees for medical records.  Please contact your SAMHSA SOAR TA Center Liaison for information about your state.

If your state does not require a fee-waiver, we recommend contacting the director of the medical records department and advocating for or negotiating one. Explain that the individual is homeless and that you, as a mutual provider, are unable to pay for the records. Let the director know that the records will be used for a disability application and that, upon approval, the individual will likely be eligible for Medicaid and/or Medicare benefits that will pay for uncompensated care that the provider has given as well as future care that is provided. Therefore, it is in the provider’s best interest for the individual’s application to be well supported and documented as an approval may lead to retroactive and future reimbursements.

In addition, offer to the director of the medical records department that you would be happy to write a letter to the administrator of his/her agency regarding how helpful the director has been as well as the potential financial recoupment that such collaboration will mean to the provider.

As the appointed representative, if I am not able to pay for copies of the medical records, can I get them from SSA or DDS?

As the claimant’s representative (using the SSA-1696 Appointment of Representative Form), you can request a copy of the claimant’s previous and current files, which include the medical records SSA and DDS received with the application. These documents are generally provided on a CD. This is allowed under the Privacy Act (5 USC § 552a (b)) “An individual may give SSA written consent to disclose his/her personal information to a third party of his/her choosing.” Note: When using the SOAR process, staff would want to collect the medical records and submit them to DDS rather than the other way around. The reason for this is to ensure that the DDS receives all pertinent information. Obtaining a CD from DDS can be useful when you assist an individual who has already applied and been denied.