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March 2020

Editor’s Note: The Continuing Saga of Medical Record Charges
By Lee DeOrio
For The Record
Vol. 32 No. 2 P. 4

Has anyone ever really figured out what covered entities and their business associates can charge for medical record requests? The situation has been fraught with uncertainty seemingly from the moment HHS first addressed it many years ago, but was made worse as guidance expanded the patient access right while restricting charges for copies.

When quizzed by the CFO, HIM managers could probably reply “it depends” to nearly every question and feel safe that it was the correct answer. For example, it depends who’s making the request and where the copies are going.

Not too long ago, “reasonable, cost-based fee” became the go-to term for those looking for a somewhat concise answer to what can be charged for patient-requested copies. It sounded, well, reasonable.

In January, a district court invalidated portions of the 2016 guidance issued by HHS addressing the assessment of fees under HIPAA for copies of electronic and paper health records directed by patients to be sent to third parties. Importantly, this patient fee portion remained the same: only a reasonable, cost-based fee can be charged for providing such copies.

However, back in 2016, HHS also required providers to issue copies of patients’ medical records to third parties when requested by a patient while charging the same reasonable, cost-based fee. This guidance caused much turmoil as lawyers and other parties began to use the rule to get their copies for lower costs than they used to. The Office for Civil Rights ramped up its enforcement and both providers and their business associates were losing revenue and being threatened with investigations.

Now, the court has ruled that HHS overstepped its statutory authority by imposing the lower HIPAA patient fee cap on records to be provided to third parties upon patient request.

Soon after this ruling, HHS published an ”Important Notice Regarding Individuals’ Right of Access to Health Records,” noting this latest decision and the fact that the reasonable, cost-based fee limitation no longer applies to third-party directives.

What does this mean for covered entities and business associates? “This decision sets a brightline standard for what fees can be charged for medical record copies, in what situations,” says Kelly McLendon, RHIA, CHPS, managing director at CompliancePro Solutions. “The different fees permissible for record copy disclosures can now be set more firmly according to clear guidelines. If a record copy request is to provide copies to the patient and is made by the patient or their personal representative, then the HIPAA reasonable, cost-based fee is to be charged—if any fee at all is charged. If a patient directs copies be sent to a third party, the fee now defaults back to the applicable state record copy fees.

OK, sounds like progress. Be forewarned, however, this is hardly the end of the road. “Lest we get overly excited about our new brightline standard, we have the coming ONC interoperability and data blocking rules, which may reintroduce clouds into our sunny day,” McLendon adds.