September 20, 2011
With the new criteria for meaningful use and the change towards burning CDs with patient information rather than copying records as before. What is the allowable fee one can charge a patient for medical records on a CD?
Actually the answer to this one is a bit confusing because information at the Federal v. State level seem to somewhat conflict and while the State regulations actually prevail, the Federal regulations are also be enforced by the Office for Civil Rights (the Federal agency responsible for overseeing HIPAA compliance). It is for this reason that this email will reference both Federal and State requirements.
Under the Federal Privacy Rule, as relayed by the Office for Civil Rights, "the only fee a doctor can charge a patient is for copies provided to the patient, including cost of labor, supplies and postage if the records are being mailed to the patient or for a summary or explanation of what records are being provided to the patient (if the patient agrees to the fees of the summary or explanation)." So, under the Federal Rule, you may charge for labor, supplies and postage.
Federal Statute -
Fees. If the individual requests a copy of the protected health information or agrees to a summary or explanation of such information, the covered entity may impose a reasonable, cost-based fee, provided that the fee includes only the cost of:
(i) Copying, including the cost of supplies for and labor of copying, the protected health information requested by the individual;
(ii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and
(iii) Preparing an explanation or summary of the protected health information, if agreed to by the individual as required by paragraph
(c)(2)(ii) of this section.
From OCR website -
If patients request copies of their medical records as permitted by the Privacy Rule, are they required to pay for the copies?
The Privacy Rule permits the covered entity to impose reasonable, cost-based fees. The fee may include only the cost of copying (including supplies and labor) and postage, if the patient requests that the copy be mailed. If the patient has agreed to receive a summary or explanation of his or her protected health information, the covered entity may also charge a fee for preparation of the summary or explanation. The fee may not include costs associated with searching for and retrieving the requested information. See 45 CFR 164.524.
NYS State law provides different guidance -
Public Health Law s. 18 -
The provider may impose a reasonable charge, not to exceed costs and not to exceed 75¢ per page, but the release of records cannot be denied solely because of inability to pay (18(2)(e)).
Also helpful, when speaking with Anne Dunne of Grassi & Co., she mentioned she had recently discussed this same issue with NYDOH as well as OPMC and provided the following -
I have had this asked once before and this is the answer based upon my conversation with a representative from the NYSDOH, OPMC.
Section 18 of the Public Health law requires a health care provider to furnish a copy of patient information upon the written request of a qualified person/patient within 10 days of the request. Patient information includes personal notes and observations of the health care provider. No more than 75 cents per page may be charged for paper copies of such records. However, at the present time, there is nothing in the law that speaks to electronic reproduction of medical records. According to the NYSDOH OPMC, it is permissible to charge the $0.75 per page in addition to the actual cost of the CD, the actual mailing cost of the CD and reasonable costs associated with the transference of the records to the CD. The key words here are reasonable costs. It would be unreasonable to have a staff person earning $50 per hour burning CDs, and the cost of the actual CD must be reasonable based upon prevailing rates in the provider's geographic area. Since there are no "guidelines on the books at this time" the risk is that "reasonable costs' will be subject to interpretation and possible abuse.
I would suggest that $0.75 per page be the foundation of the charge with an incremental adjustment for the CD, postage and transference costs. As meaningful use takes hold and more patients are provided electronic copies of their PHI, NYSDOE will hopefully address this issue.
Anne M. Dunne, RN-BC, MBA, MSCN
Director of Healthcare Consulting
Direct Dial: 516-336-2463
Be ware when assessing a fee for records - as Anne indicates above, you really want to base fees off of actual reasonable office expense. Our office recently handled a matter when a patient complained for excess records cost, and the result was an anxious doctor incurring legal expenses for defense. Be sure to provide patients notice in advance of cost, and also, the Office for Civil Rights has stated (on multiple occasions) that practices are responsible for maintaining a written policy detailing how it handles a request for records - which of course we recommend as a part of the practice's compliance program. As OCR is one of the many agencies increasing its audit activity, now is the time to review your HIPAA related policies to ensure they are intact.
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