The Pennsylvania Medical Society (PAMED) often receives questions from member physicians concerning the amount that a patient can be charged for a copy of their protected health information (PHI). Specifically, physicians have asked whether $6.50 is the maximum amount they may charge for copies of electronic PHI.
Optional Flat Rate for Electronic PHI: $6.50
The rate of $6.50 is not a maximum rate for copies of PHI, it is a optionable rate that providers may charge for electronic PHI in lieu of calculating the actual or average cost to provide such copies.
In early 2016, the U.S. Department of Health and Human Services' (HHS) Office of Civil Rights (OCR) released a fact sheet concerning individuals' rights under HIPAA to access their health information. In this fact sheet, OCR provided guidance on how to calculate actual and average costs for electronic copy requests of PHI.
OCR stated that instead of calculating the average or actual costs for requests for electronic copies of PHI, providers may choose to charge a flat rate not to exceed $6.50. OCR later issued a subsequent clarification clarifying that the flat rate option not to exceed $6.50 is not a cap on all fees for copies of PHI. Additional information provided by OCR on this clarification can be found here.
HIPAA-Authorized Costs for PHI
Under the HIPAA Privacy Rule, individuals have a right to: access, inspect, and request copies of their PHI. Individuals may direct that such copies be issued to themselves, their personal representative(s), or a designated third party. When a patient requests a copy of their PHI, healthcare providers may impose a reasonable cost-based fee. Healthcare providers are not required to charge a fee for copies and may waive fees at their discretion.
The fee that providers may charge individuals or their personal representatives for PHI copies is limited to only the cost of labor, supplies, postage, and preparation. See 45 CFR 164.524(c)(4). The fee may not include costs associated with searching for and retrieving PHI. Additionally, note that individuals must be informed of the approximate fee they may be charged for a copy of their PHI in advance.
When calculating the limited fee that can be charged to individuals to provide them with a copy of their PHI, providers may charge: the actual cost, an average cost, or a flat rate for electronic PHI.
- Actual costs are actual labor costs to fulfill the request. Labor rates must be reasonable for such activity and must include only labor for copying and/or creating a summary or explanation of PHI if individual has chosen to receive such. Providers may add to the actual costs any applicable supply (such as: paper, CDs, or USB drives) and postage costs.
- Average costs may be used in lieu of calculating the actual labor costs for each individual request. Providers can develop a schedule of costs for labor based on average labor costs to fulfill standard types of access requests. The cost of applicable supplies and postage may be added to the average labor cost.
- A flat rate not to exceed $6.50 may be charged in lieu of calculating actual or average costs for electronic copies of PHI maintained electronically.
Note that actual and average cost calculations are subject to the fee limitations of 45 CFR 164.524(c)(4).
This limited fee is only available to patients or their personal representatives. HHS has determined that attorneys are not automatically considered personal representatives for the HIPAA rate applicable to patients' requests for records. OCR did caution that while the Privacy Rule may not limit the fees that may be charged to an attorney as a permissible disclosure, state law restrictions may apply.
Pennsylvania Restrictions on Medical Record Copying Charges
Every year, the Pennsylvania Department of Health (DOH) publishes guidelines and maximum fees that a health care provider or facility may charge in response to requests for production of medical charts or records. PAMED members can access a convenient chart with 2018 copying fees here.
In Pennsylvania, a designee of a patient, such as an attorney with authorization, has the same limits on medical record copying charges as patients. The HIPAA Privacy Rule prohibits charging patients or their personal representatives a retrieval fee; however, Pennsylvania permits charging patient designees a retrieval fee.
PAMED's Legal Resource Center has member-exclusive materials on medical records such as a Quick Consult fact sheet and FAQ on Patient Rights Regarding Their Medical Records. Get details at www.pamedsoc.org/LegalResourceCenter.
PAMED members with questions on medical records can also contact our Knowledge Center at 855-PAMED4U (855-726-3348) or KnowledgeCenter@pamedsoc.org.