An Introduction to Fees Present in Medical Charts
In general, HIPAA expressly excludes any "fee for copying" records from its preemptive authority. While the HITECH Act is more expansive and includes fees, the HITECH Act applies only to "requiring" individuals to pay for copies of their records; it does not authorize a covered entity to charge for copies. It is important to note that fees charged directly to a patient or an individual seeking access to records are not included in HIPAA. (In California this would be covered under Civil Code §56.29(b)(1)(A).)
Charging patients or individuals for copies of their medical records is not without precedent. Most facilities do charge fees for "outside" requests. Of the seven states surveyed by the American Health Information Management Association (AHIMA), six states allow the facilities to charge for copies requested by third parties for a variety of reasons .
For example, California law allows Christian Science practitioners to request copies of medical records in connection with treatment, and facilities may charge for those copies. In addition, California allows counties to charge for copies requested for indigent persons to obtain Medi-Cal or welfare benefits. Further, while many facilities provide mental health services at no charge for individuals with limited or no ability to pay, California law allows these facilities to charge for copies, which is important in litigation matters involving patients from these facilities.
Although these examples involve non-patient third parties, the fact that these scenarios involve mandatory charging by facilities whose charges would not be typically paid by third parties demonstrates a trend to charge for services when reasonable for the circumstances involved.
Legal Statutes Surrounding Fees for Medical Records
The legality of charging for medical records is regulated by a combination of federal and state laws.
At the federal level, the primary regulation governing the use and disclosure of medical information is the Health Insurance Portability and Accountability Act ("HIPAA"). HIPAA is known as a comprehensive law that applies to all "covered entities," and all "business associates" of covered entities. Under HIPAA, a covered entity is a health care provider, health plan, or healthcare clearinghouse (collectively, "Providers") that transmits any health information in electronic form in connection with a HIPAA transaction. Additionally, the term "business associate" means a person or company that performs functions on behalf of, or provides certain types of services to, a covered entity that involves the use or disclosure of protected health information ("PHI"). A company or person that is neither a covered entity nor a business associate is not subject to HIPAA’s privacy or security requirements.
Understanding whether HIPAA applies to a company or organization is critical because whether the law applies dictates an entity’s obligations in the course of disclosing records.
Most states have enacted their own laws and regulations governing the disclosure of medical records. For example, the State of Washington’s statute governing charges to obtain copies of medical records provides, in part, as follows:
(1) Any person requesting a copy of medical records shall be provided with such a copy . . . after tendering the reasonable charges therefore to the provider of the information requested. A provider may charge a reasonable fee for the copying of records requested by any person including, but not limited to (a) the cost of copying, including the cost of supplies and equipment, and . . . (d) fees for the review of the request, location of the information, and preparation of the information for inspection or copying which shall be limited to the actual time required of the provider’s employee’s, excluding renderings of legal or medical opinions.
Because the fee structure imposed by various states is not uniform, and some states are silent altogether on the issue, it is important for companies that are subject to HIPAA in the first instance to also consider the laws and regulations of individual states in which they operate or do business.
Patient Entitlement and Medical Chart Availability
A patient has a right to access his or her medical records, irrespective of any particular state law requirement. The federal regulations specify that the patient’s right to inspect and obtain a copy of his/her medical records are contained in 45 C.F.R. §164.524. In addition, the Joint Commission requires hospitals to give patients access to their medical records. However, the Joint Commission standards allow hospitals to establish a fee schedule.
Even in states that require a provider to produce records within a certain number of days, patients may encounter obstacles to their access. For example, some providers will only provide copies of records in response to a written request, carrying with it a fee. Other providers impose strict limits on the number of records released at a time. While there is no general law regulating these procedures, in some cases where these practices have been challenged, courts have found in favor of a patient’s right to a more efficient process for accessing records.
The legality of fee schedules: As a point of reference, the Health Information Portability and Accountability Act (HIPAA) Privacy Rule sets parameters around patient-requested record access and defines the maximum amount a physician or other covered health care provider can charge a patient for copying fees. The right to access medical records is discussed in the HIPAA Privacy Rule at 45 C.F.R. § 164.524. More specifically, a patient has the right to access medical records "in the form and format requested by the individual, if it is readily reproducible." A covered health care provider may establish a cost-based fee schedule for access to medical records to account for the costs of searching, retrieving, copying, and mailing, but the fee must be "based on the cost per page, as determined by the applicable State or Federal statute, and if none exists, based on the labor, supply, and postage costs necessary to respond to the request." The covered entity may not charge additional fees for certain administrative costs. Depending on the state and amount of pages, the HIPAA fees range from $0.06 per page to $20 per page. For example, Maryland Code Annotated, Health General § 4-304.1 permits health care providers to charge a maximum fee of $0.75 per page. Florida Statutes Annotated, § 119.07(4)(a) permits health care providers to charge a maximum fee of $1 per page. However, the District of Columbia does not permit health care providers to charge a patient for access to his or her medical records at all. D.C. Code § 3-1112(c) sanctions a health care provider found guilty of charging a patient more than the actual cost of photocopying of the patient’s medical records.
Variations Based on Individual State Statutes
Fees for medical records can vary by state, and providers should consult state-specific regulations when determining appropriate fees. For instance, most states set per-page fees that overlap with the federal cost-limit guidelines. Some, however, choose their own "reasonable" limits, such as New Jersey’s $0.75 per page limit. Additionally, some states only place caps on fees for specific types of records or for specific types of requesters. The District of Columbia, for instance, only has a "reasonable" limit on fees for requests for records pertaining to a claim by a patient under the workers’ compensation program administered by the Mayor, although it does not set any maximum for other types of records.
For example, consider the following state provisions that apply to most health-care providers:
Utah
A provider may charge a fee of $0.50 per page for the first 10 pages of the medical record, $0.25 per page for pages 11 to 50 and $0.15 per page for each page thereafter plus the cost of postage if the patient requests that the record be mailed.
Wisconsin
Providers may not charge more than $1.00 per page for pages 1 to 25, $0.50 per page for pages 26 to 50, $0.25 per page for pages 51 to 100 and $0.15 per page for pages 101 and above, plus the actual reproduction cost if other media are requested.
Virginia
Providers may charge $1.50 for the first page, $0.50 for pages two through 50 and $0.25 for pages 51 and beyond, plus a $10 handling charge.
Alaska
Providers may charge a fee that does not exceed the lesser of (1) $1.00 for pages one through 20 and $0.50 for each additional page, plus $10 per hour spent searching for or retrieving the requested information or (2) $20 per hour of staff time spent retrieving the requested information or $50 if there is no staff time involved.
Pricing and Potential Regulations
So now we’ve established that you can ask for the record, and that you can be charged a fee to receive the record. There are two general types of fees you may encounter: per-page and copying. The per-page fee is what it sounds like – a dollar amount per page for the person fulfilling the request to go to the file room and photocopy the requested documents. The copying fee is charged for the actual cost of the copy itself. For example, when I was in law school, I worked in the records department of a local hospital, where we charged $0.75 cents per page for copies on white paper and $1.50 for color paper. In other words, if a requester came in for his or her record and ordered 5 pages of white paper and 4 pages of color paper, our charge would be $12.00 ($3.75 for the white paper + $6.00 for the color paper). That’s not counting the employee time it took to track down the requested records and bring them back to the front desk.
Which brings me to another consideration for charging a fee for records: time cost. I have been told by clients that most requests , barring normal processing time for a healthcare provider’s workload, are fulfilled the same day they are received, especially for those who submit requests in person. However, imagine how a requestor may feel when they need their records for tomorrow’s doctor appointment and they’re told they need to wait two weeks for the records, or will need to pay to have the records rushed. It’s always easiest to just try to keep the patient happy, but there are extenuating circumstances.
Not all states allow charging for those services. Some states have legislated caps on fees, some allow healthcare providers to offer a free copy of the record for patients who request it. I understand that you may be getting all these requests at once and don’t have the manpower to handle the workload and fulfill the requests in a timely manner. It’s reasonable to consider charging for your services, but make certain that you know your state’s laws and only charge when you are legally permitted to do so, and that the fee you are charging is compliant with your state’s laws.
How to Make a Request for Medical Charts
Most medical records are easy to obtain. Under the law, you have the right to request them from your health care provider. There is no form or special way to do it, you just need to put your request for the records in writing.
When you request your own medical records, there are six things your request must include:
If you are requesting your own medical records, most providers will be quick to get them to you. Florida law requires providers to provide you the copies within 30 days of your request.
When a third party requests medical records, it’s the same process. Third parties requesting medical records must include the following items:
When a Florida healthcare provider receives a request of medical records from a third party, the lawyer or other third party requesting records must pay the provider for the copies and medical record fees. The provider has 30 days to respond and can send out the records to the third party directly when paid in full.
How to Handle Issues and Complaints
In the event of a dispute concerning the fees charged for medical records, individuals should first contact the person or department — be it in the legal, medical or health department — that provided the initial response to their request. Often, there has been a simple error regarding the fee, which can be addressed over the phone. If a dispute arises as to the amount of the fees , individuals may obtain a review through what is known as a "consenting process." Such a process is commonly mediated by the accounts and correspondence department of a healthcare provider or health insurance company. Informal mediation is sought to address disputes over the reproduction costs of a medical record and, in certain states, over questions of whether the costs charged reflect the true cost of reproduction. If informal mediation does not work or if mediation is unavailable, individuals have the right to appeal the fees to the secretary of the U.S. Department of Health and Human Services ("HHS").