A doctor’s obligations regarding how to respond to medical records requests from Medicare, Medicare Advantage, and insurance companies can easily cause confusion. Receiving medical records requests is a frequent and common occurrence and it’s important to note that responding to these records requests does not require the doctor to acquire a medical records release form from the patient first.

HIPAA Rules for Releasing Medical Records
In fact, HIPAA allows medical records to be released without a patient release form in many different settings, including for patient treatment, billing, etc. Because HIPAA allows information sharing for billing purposes, any language on a CMS 1500 form is superseded by HIPAA guidelines – the CMS 1500 form does not prevent a release of records that is otherwise allowed by HIPAA. 

Regarding record requests from Medicare, Medicare Advantage, or commercial insurance plans, HIPAA also allows the doctor to provide medical records without a patient release form. HIPAA allows sharing of patient records for purposes of “health care operations,” which includes quality control, audits, licensure matters, etc. Additionally, most (if not all) provider agreements contractually require doctors to provide records to the insurer or to Medicare upon request and doing so does not require a patient release form.

Patient Medical Records Release Forms vs. Informed Consent Forms
Also keep in mind that a patient medical records release form is different from an informed consent form. A medical records release form pertains to the sharing of health information, while an informed consent form relates to the authorization of medical procedures or treatments after understanding the associated risks.

Comply with Medical Records Requests to Avoid Issues
A simple and reliable recommendation is that doctors comply with record requests from Medicare, Medicare Advantage, and commercial insurers, and remember that patient medical releases are not required to do so. Furthermore, refusing to comply with record requests is playing with fire – Medicare can revoke a doctor’s billing privileges for refusing to comply, and insurers can terminate the doctor’s provider agreement for failure to comply. It is never advisable for a provider to withhold or refuse to provide records in response to a request from a payer, whether governmental or private.

We continue to receive questions from podiatry practices regarding the use of and billing for amniotic fluid injections for musculoskeletal purposes. We recently published an article, “Caveat Emptor Vendor: Skin Substitutes & Injectable Amniotic Fluid” that details some real-life examples of the risk providers incur if they fail to do proper due diligence in these situations. In the article below, we continue the conversation around amniotic fluid injections by answering three of the most asked questions so you can make informed decisions at your practice.

In the past year, we have seen a dramatic uptick in audits and overpayment claw backs involving two high-dollar products: skin substitutes for wound care and injectable amniotic fluid used for musculoskeletal conditions. While there is no question that these products work, practitioners are often guilty of listening uncritically to sales pitches by vendors who promise high reimbursement and certain payer coverage. Failure to conduct due diligence on these products puts providers at high financial risk because of the substantial cash outlay required to purchase the products, typically upfront.

Written by: J. Kevin West & Jamie L. Riley

PICA has become aware of situations in which vendors of skin substitute products offer rebates to doctors who purchase those products. Questions have arisen regarding what legal requirements, if any, are doctors required to comply with to ensure that any rebate payments received do not subject a doctor to the criminal or civil penalties in the Anti-Kickback Statute (AKS).

The AKS imposes criminal and civil penalties if a doctor knowingly receives any remuneration in return for purchasing or ordering any item for which payment may be made by a federal healthcare program, such as Medicare. In short, the AKS prohibits kickbacks between doctors and vendors. “Remuneration” under the AKS specifically includes rebates. However, the AKS contains an exception for certain “discounts” if the discount is properly disclosed and appropriately reflected in the costs claimed or charges made by the doctor to Medicare. This exception is commonly referred to as a “safe harbor” provision.