Fighting a Double Standard for Access to Electronic Medical Records

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In Pennsylvania, health care providers typically charge $1.39 per page for paper copies of the first 20 pages of a medical record, $1.03 for pages 21-60, and $.34 for every page thereafter.  42 Pa. C.S. 6152.1. The total bill for even a single health care provider or hospital admission adds up fast and regularly amounts to hundreds of dollars.  Our office pays the fees to obtain medical records on behalf of our clients.  The cost is eventually deducted from any recovery made on the client’s behalf.  With many medical malpractice cases involving devastating injuries and lengthy hospital admissions, the total cost of obtaining medical records in a single case is often thousands of dollars.

In 2009, Congress passed the Health Information Technology for Economic and Clinical Health Act (HITECH Act) as part of the American Recovery and Reinvestment Act.  Like the HIPAA Act before it, the HITECH Act addresses the privacy and security of individual health care information, but with an additional focus on the increasing transition to the use of electronic medical records.  Pursuant to federal regulations implementing the HITECH Act, an individual is entitled to obtain a copy of any portion of their medical record created and stored in an electronic medical record system.  Unlike the traditional fees for producing paper copies of medical records, the regulations provide that the fees charged by a health care provider for producing the electronic medical record must not exceed the cost of supplies and labor necessary to copy the record.

In reaction to the HITECH Act, many hospitals and health systems have transformed their procedures for responding to requests for medical records from individuals and their attorneys. Some facilities are now capable of producing hundreds if not thousands of pages of medical records on a single compact disc.  The transition to production of the medical record in an electronic format is creating significant cost savings for clients.  Consistent with the HITECH regulations which establish cost-based limits on fees for producing medical records, many large health care providers no longer charge the multi-tiered, “per-page” rates for producing electronic medical records. Instead, many hospitals now charge a flat, “per-page” rate for copying the electronic medical record to a CD.  The flat rate is substantially lower than the per page rates charged for producing a paper record.  And this is no surprise.  To click a mouse a few times and copy computer files to a compact disc requires minimal supplies and labor at best.  Pursuant to the HITECH Act, the cost of such labor should be small and uniform, much unlike the multi-tiered rates charged for paper copies of the medical record..

In spite of the HITECH regulations, at least one hospital, and probably others as well, still charges excessive rates for copying electronic medical records to a CD.  Our office recently requested a copy of the electronic medical record of treatment provided to a client’s deceased father at Butler Memorial Hospital in Butler, Pennsylvania.  We specified in writing that we wanted the records in an electronic format.  We also cited the regulations of the HITECH Act which limit the fees health care providers can charge for producing the electronic medical record.  After a few days we received a prepayment notice requesting $278.61 in exchange for paper copies of the 538-page electronic medical record.   Perplexed, we called the hospital to confirm the records requested were maintained electronically and therefore available on CD at a substantially lower fee.  The hospital confirmed the records were available on CD, but claimed that only the patient (deceased in this case), not the attorney,  is entitled to receive an electronic copy of the record for a reasonable, cost-based fee.    Further, we learned the hospital’s standard fee for copying the patient’s electronic record to CD was anything but reasonable or based on the cost of supplies or labor.  The hospital intended to charge our client multi-tiered fees nearly the same as those traditionally charged for production of paper records.

In a letter to the hospital dated May 24, 2012 (see link to letter and other relevant documents below), we pointed out that the regulations implementing the HITECH Act permit the “disclosure” of protected health information pursuant to and in compliance with a valid authorization.  Incidentally, we had already provided the hospital with a valid authorization signed by the patient’s next of kin.  Our letter also explained that “disclosure” is defined broadly under the HITECH Act to include “the release, transfer, provision of, access to, or divulging in any other manner of information outside the entity holding the information”.  So, since “disclosure” includes “access to” information and the hospital must permit “disclosure” of protected health information pursuant to a valid authorization, we argued that our clients had a right of access to their father’s electronic medical record pursuant to their valid authorization, irrespective of who submitted the authorization on the clients’ behalf.

Next, we reminded the hospital that the fees for “access to” a copy of the electronic medical record are well established.  Not coincidentally, the federal regulation setting the limit on what a health care provider can charge to produce the electronic medical record is titled “Access of Individuals to protected health information”. 45 C.F.R. § 164.524. Subsection (a) of the same regulation is titled Standard: Access to protected health information.  As its title implies, this regulation establishes a limit on fees for “access to” the electronic medical record, access which we argue is permitted pursuant to a valid authorization and irrespective of whether the request is submitted by the patient, their next of kin, or, as in this case, an attorney on behalf of the patient’s next of kin.  Thus, we pointed out that a patient’s right to access a copy of their electronic protected health information is (1) put in motion through the valid authorization we provided, and (2) available for a reasonable, cost-based fee pursuant to the regulation governing “access to” protected health information.

Not long after sending the letter explaining our client’s rights under the HITECH Act, we received a revised prepayment notice.  The total charge for copying 538 pages of the electronic medical record to a CD, at .07 cents per page, was $54.47.  The charges represented a savings of $224.14 from the cost of producing a copy of the paper record.  The message to the hospital was received.

A hospital that maintains patient’s medical records in an electronic medical record system must produce the record in an electronic format upon request and a valid authorization.  Moreover, and irrespective of whether the request originates from the patient, their next of kin, a representative of the patient’s estate, or an attorney on behalf of any of these individuals, the hospital can only charge a reasonable, cost-based fee related to the cost of supplies or labor necessary to respond to the request.   If the hospital charges you a multi-tiered, per-page rate for a CD containing the electronic medical record, it’s ignoring its obligations under federal law.  And, you’re paying too much money for access to your protected health information.

You may click on the link below to see our form letter requesting a copy of the electronic medical record, in an electronic format, for a fee limited to the cost of labor necessary to produce such record.  You will also find correspondence which chronicles the events described above, including the prepayment notice we received which finally reflected a reasonable, cost-based fee for production of the electronic medical record in an electronic format.

Correspondence re – request for records

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