Some 76 hospitals in Indiana have been named in a suit that contends that the facilities don’t meet a requirement of the HITECH Act that patients should receive copies of their records within three days of making a request and that they are being overcharged for the records.

Two Indiana attorneys are contending in their suit that hospitals thus have defrauded taxpayers of more than $300 million in payments they have received for complying with provisions of the Meaningful Use Incentive Program. The suit charges the organizations with violations of the False Claims Act and the Anti-Kickback Statute.

The lawyers, Michael Mish and Bradley Colborn of the law firm Anderson, Agostino & Keller, initially targeted four hospitals in the suit—Memorial Hospital of South Bend, St. Vincent Hospital and Health Care Center, Saint Joseph Regional Medical Center and Saint Joseph Regional Medical Center-Plymouth Campus. Since the suit was first filed, 72 other hospitals in Indiana have been added as defendants.

The suit, which was originally filed in 2016, was recently unsealed.

Image: ThinkStock
Image: ThinkStock

Also charged in the action is CIOX Health, previously known as HealthPort, which has contracts with the four hospitals originally named in the suit to manage patient requests for copies of their electronic health records. The suit charges that CIOX “routinely” overbills patients for copies of their records.

A representative of one hospital named in the suit denied the allegations.

“Memorial Hospital was made aware of these claims last year and cooperated completely with all inquiries, after which the government declined to join the lawsuit,” said a spokesperson for the facility. “Quite simply, the claims are without merit.”

Spokespersons at Saint Joseph Health System and CIOX Health did not respond to requests for interviews or written statements.

In forming the basis for legal action, the attorneys used provisions of the HITECH Act, which establishes “certain patient rights and restrictions on provider use, disclosures and sales of health information,” the lawsuit states. “This portion of the law commands that providers such as hospitals and their business associates ‘shall not directly or indirectly receive remuneration for the sale of electronic health records except in limited situations.’ ”

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As attorneys Mish and Colborn investigated the process of requesting medical records from providers that received incentive payments from the Meaningful Use program, they concluded that at least 50 percent of the time, their firm was not getting records within three days; further, they charge that the hospitals are falsely recording or reporting compliance rates with records request provisions.

In the lawsuit, available here, the attorneys give eight specific examples of hospitals not providing records in ways that meet the provisions of HIPAA, and they contend that requesters sometimes do not get electronic copies of the records, as required by HITECH.

“The conduct of the Hospital Defendants constitutes the issuance of false claims for payment of public funding from the federal government through the Medicare EHR Program, as well as through the State of Indiana through the EHR Program funds distributed to the state through its Medicaid Program,” they contend.

With the original four hospital defendants, when the lawsuit initially was filed, Mish and Colburn allege that these hospitals received more than $29 million from Medicare and Medicaid during Stage 1 of the meaningful use program. All 76 facilities now named in the suit have received more than $300 million.

Mish and Colburn also contend that CIOX frequently failed to meet the three-day requirement for giving patients copies of their records after a request. They further contend that CIOX issued billing invoices for the provision of medical records that exceeded the labor costs of compliance.

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