Patients have a right to review their medical record and/or obtain a copy and healthcare providers are typically allowed to charge a fee for this service. However, with all the different rules and exceptions, copying fees can be confusing.
Since most, if not all, health care providers are “covered entities” under the federal privacy laws and therefore subject to the Health Insurance Portability and Accountability Act (HIPAA), it is important to be aware of the differences in state and federal law and know which to follow. In general, you will need to follow the federal rules at a minimum and if your state has more stringent rules, as long as they are not contrary to the federal rules, they will need to be followed as well.
Copy Fees
When the patient requests his or her own medical records, some states allow health care providers to charge a patient or their legal representative a fee per each page copied. Some states also allow health care providers to charge a reasonable clerical fee.
However, confusion occurs because the HIPAA Privacy Rule, which is federal law and applies to almost every practice, has different rules regarding what a health care provider can charge when a patient request their medical records. According to the Privacy Rule, below are the guidelines that health care providers must follow.
Reasonable Clerical Fee
Physicians can charge a “reasonable, cost-based fee” which means they can only charge for:
- Labor for copying the medical records, whether paper or electronic;
- Supplies for copying the medical record on paper or the portable electronic media, if the patient request the records be provided in electronic format (If the medical office maintains patient information in an electronic health record, federal law requires it to be provided to the patient in electronic format if the patients makes that request.);
- Postage, if applicable; and
- Preparing a summary of the medical record, if the patient agreed to that process in lieu obtaining their actual medical record).
Clerical Fee Not Allowed
Some health care providers charge the patient a fee for the staff to locate the medical records, especially if the medical records are off-site. Although this is allowed under some states, it is not allowed under federal law (the one you should likely be following). Therefore, this is not allowed.
When the patient request electronic health records or paper charts maintained in electronic format, the Privacy Rule does not allow the health care provider to charge more than the actual costs of labor. In other words, per page fees are not permitted for paper or electronic copies of medical records maintained electronically. Nor does the Privacy Rule allow for charging a retrieval fee of the medical records if they must be located.
Flat Fee for Electronic Copies of Medical Records Maintained Electronically
A health care provider may charge a flat fee as a charge for patients who are requesting a copy of their electronic medical records or medical records that are maintained electronically. However, this fee cannot exceed $6.50, including postage, labor and supplies.
Copy Charges Not Allowed
It is just as important to know when a patient cannot be charged for a copy of their medical records. If your state allows for patients, former patients or their representatives to one free copy of the relevant portion of the patient’s record necessary to support an appeal regarding eligibility for a public benefit program, such as health care programs for people with low incomes, or social security disability benefits, then you should follow the state law on this matter.
Keep in mind that to protect patient confidentiality, medical records should only be released with a written authorization from the patient (if living) or their legal representative (if the patient is deceased or incompetent).
Knowing when to follow the correct law is not always easy. But in the case where the patient request their medical records, almost every health care provider will need to follow federal law under the Privacy Rule. The HIPAA Privacy Rule applies only when the patient is requesting their medical records. It does not apply when the request comes from a subpoena, a health or life insurance plan, attorney request, or any other situation.
Please follow this link to the U.S. Department of Health and Human Services for more information on this topic: https://www.hhs.gov/hipaa/for-professionals/faq/2029/how-can-covered-entities-calculate-the-limited-fee/index.html
Authored by Kimberly L. Danebrock, JD, BSN, RN, CPPS
Director of Risk Management, CAPAssurance
Learn more about how the Cooperative of American Physicians, Inc. (CAP) can support your practice by downloading our free guide The Physician's Action Guide to Reducing Risk and Improving Business, which includes resources and tips to help physicians and medical staff solve common practice problems associated with seemingly routine tasks
This information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.