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Yes, I know.

The sun rises in the east. Sets in the west.

And 2+2=4.

Most of the time, when an attorney requests a copy of medical records for something like a personal injury case, auto accident, worker’s comp, they are professional, courteous, and offer to pay you the reasonable cost of copying the record. Those fees are generally capped by state law in most, if not all, states.

One Medical Justice member recently received a letter from a disability attorney asking for relevant medical records.

His letter stated he wanted records in electronic format only. He placed a rush job on it. He said he needed it within 3 weeks because a social security hearing was scheduled.

He reminded the doctor that the HITECH Act mandates requests for medical records must be addressed within 30 days.

Then he said, by law, he did not have to pay because he was requesting records in electronic format.

Finally, he said failure to timely respond within the 30 day mandate “subjects your company to significant fines and penalties via formal complaint with the Office of Civil Rights of the US Dept Health and Human Services.”

Is it true that if an attorney demands the medical record in electronic format, he does not have to pay for the service?

Not really.

But, it does appear there is a clash between federal law and state law.

Here’s is what it boils down to:

If you use electronic medical records, and request asks for an electronic format, you cannot charge a per page fee.

If the medical record has never been entered into electronic format and all you have are paper copies, then a per-page fee applies (if your state allows such charges).

If you use electronic medical records and you convert the request into electronic format, HIPAA allows you to: (a) charge your actual labor costs + shipping + the cost of the electronic media; or (b) $6.50.

A provider may calculate its actual labor costs each time an individual requests access, or may develop a schedule of costs for labor based on the average (and HIPAA-permitted types of) labor costs incurred in fulfilling standard types of access requests.  However, a provider is NOT permitted to charge an average labor cost as a per-page fee unless the medical record is: (1) maintained in paper form; and (2) the individual requests a paper copy or asks that the paper record be scanned into an electronic format.  Thus, under HIPAA, a per-page fee is not permitted for medical records that are maintained electronically.  As stated in the Access Guidance, “OCR does not consider per page fees for copies of …

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maintained electronically to be reasonable” for purposes of complying with the HIPAA rules.   

A provider may also decide to charge a flat fee of up to $6.50 (inclusive of labor, supplies, and any applicable postage) for requests for electronic copies of medical records maintained electronically. OCR explains that the $6.50 is not a maximum, simply an alternative that may be used if the provider does not want to go through the process of calculating actual or average allowable costs for requests for electronic copies. 

Nobody is going to get rich making copies of medical records. It is not a revenue center for most medical practices. So, not sure why the attorney’s opening request included threats. It would have been more civil to point the physician to the rules and regulations governing HIPAA and HITECH rather than come out swinging.

The letter was signed by the Legal Assistant.

What do you think?


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