me direct your attention to what's on my mind so you can educate me and improve my thinking about this case it looks to me as though what makes a lot of sense is different individual can get his medical records for the  of copying his lawyer out of be able to get him the same way his lawyer is acting as his agent it also looks to me as though the way hipaa and the lawyer would just count is the individual just like if you send your wife to pick up the envelope with your records  at the clinic after they've xerox them and agree it i don't see any problem with that as a matter of logic and interpretation of the words but i do have a problem because it looks like the way the agency has interpreted its own regulations that's not so they don't treat the lawyer as the individual even though he's acting as the individual's agent on behalf of the individual so it looks like under chevron we just need to defer to the agency's interpretation of its own regulation what am i missing here well your honor there's a couple of things one is the agency in interpreting their own regulations don't exclude or include agents when i say that basically the agency by the way we're looking at the statute and the way we're looking at the regulations is basically putting agents in the same shoes as the individual and frankly that is consistent with analogous cases throughout the country that are considered whether an attorney so on behalf of the client they obtain we can pass for excessive charges by medical company medical records companies and so you know our interpretation of honor is that the record companies requesting clarification of the regulations asked whether certain parties third party medical providers attorneys but not the finding attorneys for whom and other parties who are not the individual or the person represent is can be charged more than the cost basis and well so you think when they said attorneys it might have just been attorneys for the other side who have a waiver frankly your honor it's not clear what they were asking because they didn't specify that that's what they wanted to comment on so could be like the plaintiff's attorney could get them for cost but the defense attorney has to pay more but or for example if we were to proceed on this case as a class action if if we only had a punitive class if i were to try to obtain records of the invoices and that were charged to other people there would be privacy concerns associated with that and those people arguably may not necessarily be my clients for purposes of being now let me take the same now help me with something else that distinction is informative let's say i'm representing somebody in a p i suit s back so i need to see the orthopedic surgeons have better records well the clinics are going to charge me five dollars a page and i'll charge him twenty five cents a page so i just write up the request so that he site it he's requesting it for himself to be sent to him either it is from a dresser care of me or my loftus address seems like that works fine and the only lawyer who's going to have to pay the five dollars a page instead of the twenty five cents a page is the insurance company's lawyer not very maybe in terms of litigation but a permissible interpretation of the regulation that says the individual act in theory that would that would actually be the case on the other hand if you as a lawyer for x sign your own name and say i am attorney for x please send the records to my office they will impose the higher charge is is that what you do is that the situation that is the situation and that's what you're complaining about that is what we're complaining here complaining about it a class action yesterday ok now typically in personal injury cases the insurance defense lawyer will ask i have dozen or so sign waivers right so that he can make requests in the mail goes to his office and that's where the problem comes in in this class action it's the same kind of thing right it that he is the agent why is this a problem for the class action plaintiff's lawyers it seems like they could just stand notice out to the class saying if you want to go forward getting damages for your sign and return the enclosed form in the enclosed self addressed and the formal say i john doe class member request my medical records please forward them to me at john doe class member care of lawyers office that was an example i was using your honor maybe that was an unfortunate example i gave you what however this is not a problem necessary for the class action plaintiff's attorney and and just to make it more concrete what the attorney was charged in the situation which the cost was passed on to the plaintiff for  people who experience doing this kind of law that's what happens is not just the per page copying people a base fee and this is in the complaint twenty four dollars and six cents a basic fee undefined of thirty two dollars and retrieval  fifteen dollars and that gets passed on to the individual and you multiply that up with all the different ways to say asking now i mixed up sure when it when it is really well with the fifty or sixty bucks of right up front feast and that makes very little sense having to go through that route when in fact what hippa is trying to do both in the statute regulations is to give not only plaintiffs the right to privacy or not class with people who are patients but we cited to a number of analogous cases where you provide where certain they do provide for the representative of somebody who's been designated as the representative of the patient because it wasn't an evil hacker and that person can get them back and that's not the individual that's sort of again sort of a third party is not acting as individual because of some legal incapacity that's in the health care situation correct usually health care power of attorney but using your examples if somebody is hurt their back disabled can't get up and get their records and see if they want to give their wife some ability to pick up the records for them under the construct that the smart is using basically that individual is going to have to pay or have his or her spouse pay these additional fees on top of the cost base fee and i don't mail the records me i thought postage was one of the things that the regs said can be charged which implies to me that the records could be mailed you don't have to go by  not having tested it i would assume that i would assume that they would on it because typically when you do submit an authorization if it was prepared by the attorney signed by the attorney rather than the client the document companies where they talk about the situation that you mentioned hypothetical where a person could sign in and then the lawyer will just prepare all the documentation and the court did or did find spite ruling in a way which i did or we didn't necessarily agree with address my client with a date and sign it and then i just put it in the middle of the clinic and three weeks later i get a packet of records are you saying that the california court said that's in congress under  it's not that it's in congress but what but what's in congress is if the attorney prepared the request for records and submitted with a client's signed authorization in the client's own writing basically saying you know it's ok i'm the person whose records they want basically saying that it's ok and i give my authority to allow this attorney to get my records that's the situation that we're getting at and frankly when i used to practice personal injury that's the kind of authorization we requested and so when he was that different from the kind i used it's different because there's no expressed statement where the and you know it is a federal law sure they don't have to look to state law and the whole purpose was to protect the privacy of this information why couldn't they and i looks like this is what they probably did was to say look we're just we're just when it comes to privacy and to ensure that the client has to make a record has to make their requests or if the client cannot make their request you know these things are going to happen or it's just too bad and low cost they're concerned about privacy and low cost for the for the ability individual right but with when the cost is being passed to the individual directly if the attorney request i don't see how that would accomplish that goal of keeping the cost down for the individual to have a privacy privacy is handled in both situations with some signed document from the patient and there's no additional cost to the medical record company in evaluating one versus the other why why should we care about the  if the attorney makes the request when it's so easy to avoid that additional cost just by the attorney writing up the form right for his client as a practical matter how it has occurred is that basically plaintiffs make of them or attorneys make most of the requests for for medical records and situation and basically records companies have found a way to basically pass on they want to scan the lawyers because they but it's so easy for the lawyers to outsmart the attempt to scam by just having their client sign appropriately worded form and you don't have to depend on a client to mail or you can have a lawful secretary mail  well let me let me answer it this way that's situation does not necessarily present a problem however you the statute nor the regulations require that much we've provided substantial briefings that an individual and you know whatever the regulations may say and whatever the commentary may say  an agent for the individual acts of the individual and the regulations or the commentary address that it seems to me that the only time i'm going to have a practical problem is when i'm a lawyer on the insurance defense side and i have to spend almost a thousand dollars in upfront fees when the plaintiff spin doctor shopping before i find out anything about their medicals even though i got a waiver but they're not the players but they're not the point they're not they're not have you know definitely you know because they don't have any plans and what the the thing i'm trying to get at is basically the law talks about individuals and so how are you going to construe individuals well the yeah defense lawyer is not the agent for the individual and neither is the medical provider or insurance comes so i can see where there's a problem the patient people who are their agents and why is it that records companies feel free to charge them fifty that we do not intend to affect the fees that it does your client charge the fifty or sixty bucks up front when the patient says send them to me and puts in his attorney's aggressive or not i don't concerned with expense and it's and it expressly limits what can be charged for medical records to the cost it doesn't allow you to just grab money from people  don't understand why that's a limited purposes i mean a major reason why people get medical records is to find out what the doctor did and what the doctor prescribed when they go to a new doctor or because they're wondering if the doctor did the right thing here because they want to patient no i think it means that it's an individual who wants to verify what's in their health record and maybe learn something from it but it's not meant that the agency was aware that that was a small number of requests and that's not something power to charge the fifty or sixty bucks upfront to the patient as long as you can figure out that the records are going directly to the patient better actually going to his lawyer if i get that right no that's not correct there's no reservation of power it's a very simple bright line rule when the request comes from the individual to provide them for the individual they get there are allowed to have the cost basically in fact coming from the individual if he says please furnish my records to allen attorney if you request them and al an attorney request them pursuant to that authorization why it's not coming from the anticipate that there would be a problem that's not the case here but i don't suspect that would be a problem suppose the patient says you know i never went to medical school i really had have trouble reading medical records i want you to disclose my critique that health information to me and i'm going to show it to my lawyer and the problem there it's not necessary for him to share that information but i do think those share of those suppose he says i'm not even going to look at  i'm just going to show them to my lawyer and to his expert physician so that they can look at him because don't understand him at that point you don't disclose them right i think there are you know there's a little part of the and everything's hunky dory that would be true but the vast majority of health records requests are pursuant to these authorizations their insurance companies there are there are attorneys there are health care providers that are all doing this and they could all that and around to say send them to the person and and you know then hand them to us and they would get that cost but i think the agency was aware that insurance companies and attorneys aren't going to do that to save the five or ten or twenty dollars that they would do do that and if everyone was doing that it would totally destroy this industry because they would have to be charging a cost base which doesn't even take into account all of the cost and so that they would disappear if if i don't call the hotel my secretary does repeating it is letters from people in your client's industry saying we've received more than three requests for medical records in your name in our experience this indicates that they are being furnished for has some purpose other than your individual use therefore you have to pay sixty dollars each the problem is that for a covered entity it's if someone were to come to them and say i'm fine someone's agent and i represent their interests and i would like their health care information well they can say that unless they have proof that they really are the agent they need something signed by the person saying this is my agent they're not there's an exception for a personal representative and a personal representative is able to act as the individual and if you look at the exceptions for the personal representative they generally apply to  for legally they're for incapacitated people it's people have delegated the health care power of attorney i mean cliff inclined to agree with you i read the personal representative language and it looked like it was broader than personal representative in the probate law sense but n and my doctor needs to see my hospital record from the emergency room ever broken leg it's too hard drive over there to get it so my wife picks it up or my secretary picks it up and from the hospital brings it over to my doctor they're acting as agents what's the rationality and not allowing that it's a personal individual right that is being exercised here and that eating is not able to exercise the individual rights that belong to the principle that what the agent can do is find the principle and the ija can say that the principal can't act for himself that's why he needs the medical records in the first place because there's he's got a medical problem well that's why you have an exception for personal representatives for people who are in a lot of people don't need they don't need to have a conservative or pointed for their affairs are not senile i just broke their leg at all then there's the necking isn't for a proper authorization and that doesn't even you don't need and then you pay sixty bucks and then then he got a five hour wait authorization to pay sixty dollars just when you've broken your wagon you can earn wages  general patterns of behavior that are out there and what i just described is really really common people go to the emergency room and they go to the doctor the next day and if that person goes to the doctor the next day and sa below cost and all the infrastructure that's involved in putting together these record information systems wouldn't happen if lots of people were able to get them for below the cost of actually providing s a fever they have a bad infection and fever they're going to have to drive around to get their records and bring them to their doctor to avoid wasting hundreds of dollars your honor that's not the purpose are going to have to go to the lab to the hospital to the x ray center imaging center these are hipaa regulations and hiphop not seeking to protect that interest to put it about protecting the integrity and privacy and those are the goals of the regulation well there's regulation here designed to make sure patients can get their records without paying a lot of money that's not about privacy it's about money it's one wants to verify what's in their health care record and then that that the agent has isn't it decided that f otherwise actually ok admitted you're right i'll be back tomorrow