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OCR Takes New Position on Allowable Medical Records Costs

May 15, 2020

By Deborah I. Schroeder, J.D., Schroeder & Trahan

OCR Takes New Position on Allowable Medical Records Costs
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In 2018 CIOX, a health information management company which supplies record retrieval services to three-fifths of the nation’s hospitals, sued the U.S. Department of Health & Human Services (HHS) claiming that guidance it issued in 2016 controlling permissible medical record copy costs violated the law. In 2016, HHS, based on HIPAA and HITECH, had issued guidance limiting the fees that could be charged to third parties who requested patient records on their behalf. As a result, lawyers representing a patient and insurance companies who requested records on behalf of a patient claimed that they were entitled to receive the records at the same lower cost as a patient. The guidance significantly impacted CIOX’s ability to charge standard fees for access to patient records by law firms and insurance companies, resulting in the loss of millions of dollars of revenue, according to the suit filing. 

A recent decision in the U.S. District Court for the District of Columbia held that the HHS limit on fees was impermissible. The Court ruled that the limitation on fees was improperly enacted by HHS. This ruling has resulted in HHS and the Office for Civil Rights (OCR) agreeing to not enforce their prior guidance on what a healthcare provider can charge a third party acting on a patient’s behalf for a copy of the patient record. The District Court thus struck the provisions as applied to all third parties. An attorney representing a patient in an auto accident, by way of example, is no longer entitled to the lower rate applied to a patient’s request for his or her own records. The cap on fees only applies when the patient requests access to his or her own records.  

The OCR has been actively involved in making sure that healthcare providers limit copy charges to the actual labor cost, supplies and postage involved in making a copy of the medical record requested by the patient (generally set as $0.10 per page in hospitals - without retrieval, storage, search or other fees or a flat fee capped at $6.50 per request for an electronic copy of records). 

The OCR will remain active in determining that the patient’s right to access his or her own medical records is protected. Failure to provide the records to the patient at the limited costs allowed by HHS can result in fines and OCR audits. Class action suits against healthcare providers and copy service companies have also resulted in other jurisdictions. It remains the healthcare provider’s duty to be sure that the patient’s right to timely access to his or her own health records at a reasonable cost is protected (even if the copy service is outsourced). If copy services have been delegated to a business associate, be sure to review their fee schedules.  

All third-party “non-patient” requests (even those made by lawyers who represent the patient or insurers and others acting on their behalf) are governed by Louisiana law. Under LSA RS 40:1165.1, records which exist solely in paper form are subject to a charge of “a reasonable copy charge, not to exceed $1 per page for the first 25 pages, $0.50 per page from 26-350 pages and $0.25 per page thereafter, a handling charge not to exceed $25 and actual postage.” The cost of supplying digitally stored records cannot exceed $100, plus postage and actual charges. For more information, please view our article “Laws Governing Patient Record Request Fees.”

As always, this is subject to change. LAMMICO will continue to monitor the issue. Should HHS decide to pursue it further through the proper rule making procedures, we will update you as necessary. 

To access HHS’s notice on this matter, click here.  

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