We all know patients in California have a right to review their medical record and/or obtain a copy. It is also no surprise that 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, medical offices are “covered entities” under the federal privacy laws and therefore subject to the Health Insurance Portability and Accountability Act (HIPAA), it is important for physicians and their staff to be aware of the differences in state and federal law, and know which to follow.
When the patient requests his or her own medical records, California law (Health & Safety Code §123110) allows health care providers to charge a patient or their legal representative a maximum of $0.25 per page or $0.50 per page for records copied from microfilm. A reasonable clerical fee is also allowed, as long as the amount charged does not exceed the actual costs of preparing the medical records.
However, confusion occurs because the HIPAA Privacy Rule, which is federal law and applies to almost every medical office, has different rules regarding what a healthcare provider can charge when a patient requests their medical records. According to the Privacy Rule, below are the guidelines that healthcare 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 of obtaining their actual medical record).
Clerical Fee Not Allowed
Some medical offices 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 California law, it is not allowed under federal law (the one you should likely be following). Therefore, this is not allowed.
When the patient requests electronic health records or paper charts maintained in electronic format, the Privacy Rule does not allow the physician 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 for the medical records if they must be located.
Flat Fee for Electronic Copies of Medical Records Maintained Electronically
An office may charge a flat fee for patients who are requesting a copy of their medical records. However, this fee cannot exceed $6.50, including postage, labor, and supplies.
Copy Charges Not Allowed
It is just as important for physicians and staff to know when they cannot charge a patient for a copy of their medical records. Patients, former patients or their representatives are entitled 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 Medi-Cal or social security disability benefits. Please refer to Health & Safety Code §123110 for further information related to providing medical records to patients during the appeal of a public benefit program denial.
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 requests their medical records, almost every medical practice 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, an attorney request, or any other situation.
Click here for the guidelines provided by the California Medical Association for allowable copying costs related to an attorney’s request, subpoena, and request from health insurers. This document is published by the California Medical Association’s (CMA) legal team in CMA’s 2017 California Physicians’ Legal Handbook (CPLH) available at www.cmanet.org.
Authored by Kimberly L. Danebrock, JD, BSN, RN, CPPS
Director of Risk Management, CAPAssurance