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The inclusion of a fee for copying is not intended to impede the ability of individuals to copy their
records. Rather, it is intended to reduce the burden on covered entities. If the cost is excessively
high, some individuals will not be able to obtain a copy. We encourage covered entities to limit
the fee for copying so that it is within reach of all individuals.
28
One would not expect that the agency adopting the regulations would be concerned about high fees preventing access
to records unless covered entities are permitted to withhold for failure to pay.
Is $6.50 the Maximum Fee HIPAA Allows for a Copy of Electronic Medical Records?
No. In early 2016, the U.S. Department of Health and Human Services (HHS) Ofce of Civil Rights (OCR) published a
fact sheet on individuals’ right under HIPAA to access protected health information (PHI). There was confusion over
some text within the fact sheet, which stated a at fee not to exceed $6.50 is a permissible option for covered entities
when charging individuals requesting electronic copies of medical records. Some interpreted this to mean that $6.50
was the maximum amount that could be charged for providing copies of electronic medical records. In response, OCR
issued a clarication that “$6.50 is not the maximum amount that can be charged for all individual requests for a copy
of PHI under the right of access. Rather, charging a at fee not to exceed $6.50 is an option available to those entities
that do not want to go through the process of calculating the actual or average costs for requests for electronic copies of
PHI maintained electronically as permitted by the Privacy Rule.”
29
While OCR permits the option of a $6.50 at fee for electronic medical records for physicians who do not want to
calculate actual or average costs, TMB rules still require copy fees to be “cost-based.”
30
Copy Fees Under the Information Blocking Provision of the 21st Century Cures Act
The 21st Century Cures Act prohibits information blocking of electronic health information (EHI).
31
For a physician,
information blocking means a practice that is likely to interfere with the access, exchange, or use of EHI where the
physician knows such practice is unreasonable and is likely to interfere with the access, exchange, or use of EHI.
32
It
does not include a practice required by law or covered by an exception under the Cures Act.
33
To avoid implicating the information blocking provision when charging a fee to access, exchange, or use EHI, a
physician would generally need to satisfy the conditions of the fees exception under the Cures Act.
34
However, if the
physician fullls the request for EHI in the manner requested, any fees charged do not have to satisfy this exception.
35
To rely on the fees exception,
36
the following conditions must be satised:
1. Basis for fees condition.
a. The fees the physician charges must be:
i. Based on objective and veriable criteria that are uniformly applied for all similarly situated classes of
persons or entities and requests;
ii. Reasonably related to the physician’s costs of providing the type of access, exchange, or use of EHI to, or at
the request of, the person or entity to whom the fee is charged (e.g., for copy fees, the lesser of the amount
permitted by state law or HIPAA);
28 65 Fed. Reg. 82,557 (emphasis added).
29 U.S. Department of Health and Human Services (emphasis in original). Clarication of Permissible Fees for HIPAA Right of Access – Flat Rate Option of
Up to $6.50 is Not a Cap on All Fees for Copies of PHI. May 23, 2016.
30 22 TAC §§165.2(e)(1)(A), (e)(2)(A), and (e)(3)(A).
31 42 USC §300jj-52(b)(2)(B) (penalty referrals for health care providers who commit information blocking).
32 45 CFR §171.103.
33 Id.
34 85 Fed. Reg. 25,879: ”[W]e interpret the broad denition of information blocking … to encompass any fee that is likely to interfere with the access,
exchange, or use of EHI (84 FR 7521). Fees that do not meet this exception may implicate the information blocking provision and will have to be
assessed on a case-by-case basis to determine, for example, the actor’s intent and whether the practice rises to the level of an interference.” (Emphasis
in original.)
35 45 CFR §171.301(b)(1)(ii)(A).
36 45 CFR §171.302(a)-(b).