Michael B. Kornhauser
Who's Responding to Your Nursing Home Records Requests?
Updated: Oct 20, 2021
Nursing home records requests are a common occurrence in skilled nursing facilities. Many times, a nursing home records request is the precursor to litigation. With that in mind, who's responding to your nursing home records requests?
Consider the following hypothetical scenarios:
Marjory Smith passed away at the nursing home on September 1, 2017. On October 16, 2017, the nursing home receives correspondence from Marjory Smith’s son, Tom. Therein, Tom states that he held a power of attorney for his mother and, in his representative capacity, requests a copy of his mother’s nursing home records. Tom also demands that the records be available within ten (10) days.
Betty Johnson passed away at the nursing home on May 3, 2017. On December 12, 2017, the nursing facility receives a demand from an attorney representing Betty Johnson’s daughter, Gina. The attorney requests all nursing home records for Ms. Johnson and attaches a document signed by Gina titled, “Authorization for Release of Medical Records.” The attorney demands that the nursing home records be provided within fourteen (14) days.
John Doe is discharged from the facility on January 5, 2018. On February 21, 2018, the nursing facility receives a demand from an attorney, representing John Doe’s widow, Jane. The attorney states that he represents the Estate of John Doe, attaches a document signed by Jane titled, “Authorization for Release of Medical Records,” and demands the records within thirty (30) days.
Which of the above requests for nursing home records are valid? Answer: None are valid. Read on for a discussion of those laws which render the hypothetical records requests invalid.
Who May Request Records?
Upon receipt of a records request, the nursing home must first determine whether the subject of the request is alive or deceased. If the request is silent (and the nursing home has no other information available to make this determination), the request is improper.
If, however, the subject of the medical records request is deceased, the request must be made by the personal representative of the estate. If no personal representative has been appointed, the request must be made by an individual designated by the decedent in his or her self-proved last will and testament to act as the personal representative of the decedent’s estate. If no personal representative has been appointed and no individual has been designated to serve as personal representative, the request must be made: (1) by a surviving spouse; (2) if there is no surviving spouse, by a surviving child; or (3) if there is no surviving spouse and no surviving child, by a parent.
Further, any request emanating from a personal representative must include a copy of the letters of administration and a copy of the court order appointing the individual to serve as personal representative of the decedent’s estate. Any request emanating from an individual not yet appointed as a personal representative but designated to serve in such capacity in a self-proved last will and testament, must include a copy of the self-proved last will and testament. Finally, any request emanating from a surviving spouse, a surviving child, or a surviving parent (as applicable), must be accompanied by a letter from the individual’s attorney verifying the person’s relationship to the decedent and the absence of both a court appointed personal representative and a self-proved last will. Absent the foregoing, the request is improper. It also bears mentioning that a durable power of attorney and a designation of health care surrogate become null and void upon the death of the decedent. Therefore, a request for a decedent’s records premised upon such documentation is improper.
If the subject of the records request is alive, the request must come from the resident/former resident or any third party specifically designated under a power of attorney or designation of health care surrogate to make such a request. That said, a nursing home is not required to accept a third party’s request blindly. Rather, a nursing home may require an individual purporting to act on behalf of a resident/former resident pursuant to a power of attorney to execute an affidavit verifying certain facts enumerated by statute. Therefore, if the nursing home has any doubt concerning a third party’s request, demand for a statutorily compliant supplemental affidavit should be made.
When Must a Nursing Home Respond?
If, after analyzing the records request, the nursing home determines that the request is proper, the nursing home must issue a timely response. If the subject of the request is a current resident, the nursing home must provide the requested records within fourteen (14) working days after receipt of the request. If the subject of the request is a former resident, the nursing home must provide the requested records within thirty (30) working days after receipt of a request.
What is the Potential Downside to an Untimely Response?
The nursing home’s failure to timely respond to a proper medical records request constitutes evidence of the nursing home’s failure to satisfy the good faith discovery requirements associated with the nursing home negligence pre-suit process and waives the good faith certificate required of a Plaintiff’s attorney, along with the Plaintiff’s pre-suit notice requirements to the nursing home (requirements which are separate and distinct from the records request).
Is a Nursing Home Entitled to Compensation When Responding to a Records Request?
A nursing home is entitled to compensation for providing records in the amount of $1.00 for the first twenty-five (25) pages and $0.25 for the remaining pages. And, it is customary for a nursing home (and other health care providers) to condition the release of records on pre-payment. In light of the foregoing, an unresolved ambiguity exists regarding the actual deadline to provide a response. However, if pre-payment is required, the most appropriate course of conduct is to issue the prepayment request as soon as practical and, at all times, within the deadlines set forth above.
A nursing home must properly analyze the sufficiency of each nursing home records request and respond within a timely manner, especially where the request may serve as a precursor to litigation. Of course, there are other legal issues which impact the analysis, such that nursing homes must consider who's responding to their records requests.
Among other things, Michael B. Kornhauser, Esq. not only consults nursing homes on the validity of records requests, but also responds to nursing home records requests. Indeed, the best defense to a potential lawsuit starts early. Consider who is responding to your nursing home records requests. Contact Michael with any questions.