By Connie Christian, MBA, CPHRM
KAMMCO Facility Risk Managements and Patient Safety Advisor
Many practices and facilities receive medical records requests from attorneys for different reasons. However, most arrive with a letter full of stipulations and requirements that cause confusion and concern regarding how the records are to be formatted and how much can be charged for complying with the request. State law [K.S.A. 65-4971(b)] which required the Secretary of Labor to annually adjust the maximum fees that may be charged for non-workers compensation medical records copying, was repealed by the 2011 Kansas Legislature. Without state guidelines, federal law governs the establishment of copying charges.
Most requests will include language from the HITECH act such as:
"The Department of Health and Human Services (HHS) has issued a clarification on the flat rate cost of $6.50 for electronic records. The fees charged to respond to a HITECH medical records request are strictly limited by 45 C.F.R §164.524 (c) (4). "In most cases, the fee will be $6.50. This charge limit also applies to any third-party vendor hired to respond to the HITECH request. Further the HITEH Act is a federal legislation that supersedes State laws regarding to the cost of medical records."
HHS has since inssued a clarification on the $6.50 flat rate stating:
"For any request from an individual, a covered entity (or business associate operating on its behalf) may calculate the allowable fees for providing individuals with copies of their PHI: (1) by calculating actual allowable costs to fulfill each request; or (2) by using a schedule of costs based on average allowable labor costs to fulfill standard requests. Alternatively, in the case of requests for an electronic copy of PHI maintained electronically, covered entities may: (3) charge a flat fee not to exceed $6.50 (inclusive of all labor, supplies, and postage). Charging a flat fee not to exceed $6.50 per request is therefore an option available to entities that do not want to go through the process of calculating actual or average allowable costs for requests for electronic copies of PHI maintained electronically."
There are two very important limitations of the HITECH Act that many attorneys are aware of, however do not usually include in their requests. First, the HITECH Act only applies to medical records maintained in electronic format. If the provider practice or facility only maintains paper records and those records cannot be readily produced in an electronic format, then the HITECH request for medical records does not apply. HHS issued guidance when a covered entity maintains medical records only on paper that “While a covered entity is not required to purchase a scanner to create electronic copies, if a covered entity can readily produce an electronic copy of the PHI for the individual by scanning the records, it must do so. In particular, if an individual requests an electronic copy of PHI in a specific format, and a covered entity maintains that PHI only on paper, the covered entity must provide the individual with the electronic copy, in the format requested, if the copy is readily producible electronically and readily producible in the electronic format requested. If the copy is readily producible electronically but not in the specific format requested, the covered entity may offer the individual the copy in an alternative readable electronic format. If the copy is not readily producible in electronic form, or the individual declines to accept the electronic format(s) that are readily producible by the covered entity, then the covered entity may provide the individual with a readable hard copy of the PHI to satisfy the access request and charge for the labor and materials. Ensure there is communication between the covered entity and the requestor prior to proceeding with hard copy of the record. See § 164.524(c)(2)(i).” The second limitation states psychotherapy notes are excluded from a HITECH medical records request under 45 C.F.R 164.524 (a)(1)(i).
For the full HHS text on this issue please see HHS Frequently Asked Questions: Individual’s right to access their information found at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html or feel free to contact the KAMMCO Member Services department to discuss your specific medical records request concerns. Connie Christian cchristian@KAMMCO.com or Yolanda Sims ysims@KAMMCO.com, telephone 800-232-2259.
HHS Individuals Right to Access their Health Information https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html
HHS New Clarification – $6.50 Flat Rate Option is Not a Cap on Fees for Copies of PHI https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html#maximumflatfee
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