Clearing up the confusion: Charging your patients for medical record copies

May 9, 2017

Cathy Bryant

As medical record formats change from paper to electronic, the rules for charging your patients for copies of their medical records have also evolved. This issue becomes even more complicated when one considers the differences between federal and Texas guidelines, and charging a patient versus charging a third party.

Texas physicians, providers, and health care entities, must consider both federal and Texas guidelines when determining what to charge patients for copies of their records. Federal and Texas rules require that the charges be reasonable and cost-based, unless the federal flat fee is used. Whichever method you follow, you must be able to justify what you or your practice charged the patient. When considering Texas guidelines, providers are cautioned not to simply “default” to charging the maximum allowable amount outlined in the Texas Administrative Code; these dollar amounts are not flat fees.

However, if the record request comes from a third party, such as an attorney or insurance company, the Texas guidelines should be followed.

Here is a brief description of federal and Texas rules for charging for medical record copies.

FEDERAL ALLOWABLE CHARGES

According to federal law, a provider or business associate operating on behalf of the provider may use one of the following methods to charge a patient a reasonable fee for copies of their medical records:

Actual cost: the provider may calculate and charge the actual allowable* cost to fulfill each patient request; or
Average cost: the provider may develop a schedule of costs based on average, allowable labor costs to fulfill standard requests; or
Flat rate of $6.50: the provider may charge a flat fee of no more than $6.50 (this covers all labor, supplies, and postage) for requests of electronic copies of the patient’s protected health information (PHI). This charge may be used per request if the provider does not want to calculate or track costs of requests for electronic copies of PHI.

*In this scenario, “allowable” refers to costs related to the labor, supplies, postage, and any preparation of an explanation or summary of the patient’s PHI. (1)

It should be noted that there may be some unusual requests that lie outside of this fee structure. In these unique circumstances, the provider may calculate actual costs as long as the costs are reasonable and only of the type permitted by the Privacy Rule. (1)

According to the U.S. Department of Health and Human Services (HHS), health care organizations must also inform those patients or individuals requesting copies in advance of the approximate fee for this service, and should post on their websites or otherwise make available an appropriate fee schedule for copy requests. (1)

TEXAS ALLOWABLE CHARGES

Texas guidelines are different from federal rules in that the Texas Medical Board (TMB) allows providers to charge patients a reasonable, cost-based fee for copies of their records based on the type of record requested (paper, electronic, or a combination). (2)

However, many practices mistakenly use the Texas guidelines (listed below) as a “default” amount to charge. Whereas charges should be reflective of the cost to actually produce the copies and practices should understand that the TMB charges are maximum allowable charges. (2) See examples at the end of this article for clarification and discussion of scenarios.

Paper format: The provider may charge no more than $25 for the first twenty pages and $.50 per page for every copy thereafter. For example, if a record is 25 pages, the provider may charge $27.50 ($25 + 5 x .50 = $27.50). Or if a record is 30 pages, the provider may charge $30 ($25 + 10 x .50 = $30).
Electronic format: The provider may charge no more than $25 for 500 pages or less; $50 for more than 500 pages.
Combination or hybrid format: For a request of records that are a combination of paper and electronic format, the provider may use the above guidelines for paper and electronic to create a reasonable charge. For example, if the patient’s record is a combination of 40 pages of paper records and 100 pages of electronic records, the provider may charge $60 (paper = $35 ($25 + 15 x.50); electronic = $25). (2)

The scenarios below are designed to show the differences between the federal and Texas calculations.

SCENARIOS

1. Paper copy requested by the patient

A patient requests a paper copy of the records from her last office visit and lab work. The office staff prints 10 pages of a medical record.

CALCULATING FEDERAL ALLOWABLE CHARGES

(Can choose from any of these three options to calculate the federal rate.)

FLAT RATE

$6.50

Actual Cost

Labor for copying only

15 min @ $15 per hr

$3.75

Supplies

$0.10 per page

$1.00

Postage

Priority Mail

$6.65

Total

$11.40

Average Cost

Labor for copying only

20 min @ $15 per hr

$5.00

Supplies

$0.10 per page

$1.00

Postage

Priority Mail

$6.65

Total

$12.65

CALCULATING TMB ALLOWABLE CHARGES

The provider may charge no more than $25 for the first twenty pages and $.50 per page for every copy thereafter. This copy is 10 pages, so the fee according to the TMB may be $25.

CONSIDERATIONS

The medical office follows the TMB guidelines and charges the patient $25 for the copies.

The practice may have misinterpreted the TMB “shall be a charge of no more than” dollar amount to be the allowable amount. Had the patient complained to HHS/OCR, the practice would need to be able to show how they calculated the cost of $25, either as actual or average costs in order to justify the charge. If the practice could not justify the cost, it is possible the OCR could investigate the practice for a HIPAA violation.

Additionally, the practice is required to provide an estimate of the charges to the patient before making the copies.

2. Electronic copy requested by the patient

A patient requests a copy of the medical records from his last office visit and lab work electronically on a flash drive. The office staff copies 10 pages of the electronic medical record to the encrypted flash drive and mails it to the patient.

CALCULATING FEDERAL ALLOWABLE CHARGES

(Can choose from any of these three options to calculate the federal rate.)

FLAT RATE

$6.50

Actual Cost

Labor for copying onto flash drive only

20 min @ $20 per hr

$6.67

Supplies

Encrypted Flash Drive

$9.49

Postage

Priority Mail Padded Envelop

$24.95

Total

$41.11

Average Cost

Labor for copying onto flash drive only

20 min @ $20 per hr

$6.67

Supplies

Encrypted Flash Drive

$9.49

Postage

Priority Mail Padded Envelop

$24.95

Total

$41.11

CALCULATING TMB ALLOWABLE CHARGES

For an electronic format, the provider may charge no more than $25 for 500 pages or less. The record is 10 pages long, so the fee according to the TMB may be $25.

CONSIDERATIONS

The practice refers to the TMB Rule and charges the patient $25.

If requested by the OCR to explain how they justified the cost of $25, this practice could show that either the actual cost or the average cost for this request would have been more expensive to the patient as justification for charging $25.

Conversely, if investigated by the TMB, the practice might have an issue if they had chosen to charge actual or average costs under the federal calculations, because Board Rule 165.2(e) describes “a reasonable fee for providing the requested records in an electronic format shall be a charge of no more than $25 for 500 pages or less.”

3. Copy requested through patient portal

A patient requests a copy of the medical records from her last office visit and lab work through the patient portal. The office staff pushes 10 pages of the electronic medical record to the patient’s portal.

CALCULATING FEDERAL ALLOWABLE CHARGES

(Can choose from any of these three options to calculate the federal rate.)

FLAT RATE

$6.50

Actual Cost
Labor for pushing records to the portal only	15 min @ $20 per hr	$5.00
Supplies	0	$0.00
Postage	0	$0.00
Total	$5.00

Average Cost
Labor for pushing records to the portal only	20 min @ $25 per hr	$8.33
Supplies	0	$0.00
Postage	0	$0.00
Total	$8.33

CALCULATING TMB ALLOWABLE CHARGES

A reasonable fee for providing the requested records in electronic format shall be a charge of no more than: $25 for 500 pages or less; $50 for more than 500 pages

CONSIDERATIONS

The practice has determined that as a rule they will not charge for records sent through the portal.

A practice may elect not to charge a patient for records in electronic format sent through the patient portal, as this is a very time and cost effective way to provide requested records.

4. Combination of paper and electronic records requested by the patient

A patient requests an electronic copy of his entire medical record from his physician’s office. The records for the first five years are in paper format and the records for the last three years are in electronic format.

CALCULATING FEDERAL ALLOWABLE CHARGES

(Can choose from any of these three options to calculate the federal rate.)

FLAT RATE

$6.50

Actual Cost

Labor for copying records onto the CD only

30 min @ $15 per hr

$7.50

Supplies

$2.99

Postage

Patient will pick up

$0.00

Total

$10.49

Average Cost

Labor for copying records onto the CD only

30 min @ $15 per hr

$7.50

Supplies

$2.99

Postage

Priority Mail Padded Envelop

$24.95

Total

$35.44

CALCULATING TMB ALLOWABLE CHARGES
(B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of the TMB rule 165.2 (e).

The physician responding to a request for such information that is contained partially in electronic format and partially in paper format (“hybrid”), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information.

CONSIDERATIONS

The practice refers to the TMB Rule regarding hybrid records and charges the patient $165.

They calculated the charges based on:

Scanning 200 pages onto a CD = $115.00 ($25 for first 20 pages and $0.50 x 180 pages)
600 pages from EHR onto the same CD ($50 for more than 500 pages)

In this example, charging the patient $165 for a CD of the medical records may be difficult to justify to either the OCR or the TMB.

The practice may have misinterpreted the TMB “shall be a charge of no more than” dollar amount to be the allowable amount. This is exaggerated in this example when the paper + electronic = hybrid fees are combined.

5. Records requested by a third party: attorney

An attorney requests the entire medical record from a physician’s office for a client. The patient’s records for the first five years are in paper format and the records for the last three years are in electronic format.

CALCULATING FEDERAL ALLOWABLE CHARGES

Federal calculations do not apply to third-party requests, only to patient requests for their own records.

CALCULATING TMB ALLOWABLE CHARGES

(B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of the TMB rule 165.2 (e).

CONSIDERATIONS

The practice refers to the TMB Rule regarding hybrid records and charges the attorney $165.

They calculated the charges based on:

Scanning 200 pages onto a CD = $115.00 ($25 for first 20 pages and $0.50x180 pages)
600 pages from EHR onto the same CD ($50 for more than 500 pages)

In this example the attorney requested the entire medical record and the practice calculated the fees based on TMB rules correctly.

6. Records requested by a third party: insurance company

An insurance company requests the records of a patient related to an auto accident. The practice maintains their medical records in electronic format.

CALCULATING FEDERAL ALLOWABLE CHARGES

Federal calculations do not apply to third party requests, only to patient requests for their own records.

CALCULATING TMB ALLOWABLE CHARGES

(B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of the TMB rule 165.2 (e).

CONSIDERATIONS

The practice refers to the TMB Rule regarding electronic records and charges the insurance company $50. They calculated the charges based on 600 pages from EHR onto the same CD ($50 for more than 500 pages).

In this example the insurance company requested the medical record and the practice calculated the fees based on TMB rules correctly.