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from charging fees for retrieving the records, handling the records, or processing the request for access.
25
The federal
government does not impose a different standard in fees for copies. When adopting the HIPAA regulations, the federal
government stated, “Fees for copying and postage provided under state law, but not for other costs excluded under
this rule, are presumed reasonable.”
26
The TMB medical record copy fee rules are adopted by command of state
law.
27
The HIPAA privacy regulations do not, by their own terms, expressly permit withholding of records for failure to pay
the copy fee. However, the regulation and the government comments implicitly permit this practice. Consider the
following government discussion:
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 amount that can be charged for a copy of 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 for Specific Records
Copy Fees for Hospitals
Hospitals may charge for copies; however, the hospital fee schedule for copies is governed by a different law. Texas
Health and Safety Code §241.151 et seq. creates special medical records release provisions for licensed hospitals —
and only licensed hospitals. They do not apply to physician ofces. The fee is to be adjusted accordingly based on
certain changes to the consumer price index, effective Sept. 1, 1996, and annually thereafter. The fee schedule FOR
HOSPITALS ONLY as of Sept. 1, 2017, is as follows:
31
1. A basic retrieval or processing fee, which must include the fee for providing the rst 10 pages of copies and
which may not exceed $46.61; and
25 45 CFR §164.524(c)(4).
26 65 Fed. Reg. 82557 (emphasis added).
27 Tex. Occ. Code §159.008.
28 65 Fed. Reg. 82557 (emphasis added).
29 Clarification 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.
www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/clarification-flat-rate-copy-fee/index.html.
30 22 Texas Administrative CodeTAC §§165.2(e)(1)(A), (e)(2)(A), and (e)(3)(A).
31 Maximum Fees Allowed for Providing Health Care Information Effective September 1, 2017. www.dshs.state.tx.us/facilities/pdf/MedRecFee.doc.