When a lawyer representing an injured plaintiff requests his or her client’s medical records, hospitals and doctors’ offices may try to charge fees to disclose this information. There are various state laws that include a standard search fee, fees per page printed, postage fees, and other assorted charges if more extensive documents are needed. However, some of these charges may be contrary to federal regulations, which actually preempt state laws.
According to the Health Insurance Portability and Accountability Act (HIPAA), a covered health care provider may not charge a fee under HIPAA for individuals to access the protected health information (PHI) that is available and accessible through the provider’s electronic health record technology. However, states are able to apply fees to cover the cost of certain labor, supplies, and postage.
Among numerous types of protection, HIPAA’s Privacy Rule gives patients the right to examine and obtain a copy of their health records and to request corrections. Upon request by the patient, the Privacy Rule requires HIPAA-covered health care providers to give the patient access to his or her PHI in “designated record sets” maintained by or for the covered entity. Designated record sets include:
- Medical records and billing records about the individual
- Enrollment, payment, claims adjudication, and case or medical management record systems related to the individual requesting the records
- Other records that are used, in whole or in part, by or for the covered entity to make decisions about individuals in general, whether or not they have been used to make a decision about the particular individual requesting access.
Under HIPAA, patients may also direct the covered health care provider or insurer to send a copy of their PHI to a designated person or entity — such as their lawyer. Plaintiffs will need to fill out a health information disclosure form, like this one here, which authorizes the provider to disclose information to the law firm.
When requesting electronic copies of medical records, and electronic copies are available, the HITECH Act prohibits medical providers to bill for paper copies. This template letter to medical providers highlights restrictions around what medical facilities can charge. For example, the letter clearly points out that “… 42 USC 17935(e) and 45 CFR 164.524(c)(4) limit the cost of the records to the actual labor costs for reproducing them in the requested electronic format, the actual cost of the portable media (in this case, on CD), and postage. The fee for reproducing the records in electronic format may not exceed $6.50 and may not include costs associated with verification, documentation, searching for and retrieving protected health information, etc. even if such costs may be authorized by state law.”
As an attorney, you should never have to pay a substantial fee to obtain your client’s electronic medical records. It may seem like a small point, but these fees add up. It is best to familiarize yourself with federal laws so you don’t get saddled with seemingly-arbitrary, state-defined costs for printed records.
About John Bair
John Bair has guided thousands of plaintiffs through the settlement process as co-founder of Milestone Consulting, LLC, a broad-based settlement planning and management firm. Milestone’s approach is comprehensive and future-focused. John’s team has guided thousands of clients by taking the time to understand the complexities of each case. They assess the best outcome and find the path that enables each client to manage their many needs. Read more about Milestone Consulting at http://milestoneseventh.com/.
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).