June 29, 2018

This article was originally printed in the Medical Association of the State of Alabama's Alabama Medicine Magazine, Volume 4, Number 3, Summer 2018 by D. Brent Wills and Mazie Bryant[1]. 

The State of Alabama Board of Medical Examiners (“ALBME”) recently amended its rules that govern the fees physicians may charge to provide patients with copies of their medical records.[2]  The rules are set forth in Section 540-X-9-.10(2) of the Alabama Administrative Code.  The new rules became effective April 13, 2018.

Here are the key dos and don’ts physicians should take into account to determine how much (and whether) they should charge patients for copies of their records.   

Don’t charge anything other than a “reasonable, cost-based fee” for necessary supplies, labor and postage.

As in the past, the new rules permit a physician to recover a reasonable, cost-based fee to comply with a patient’s request for copies of his medical records, subject to the prohibitions, requirements and recommendations below.  Federal law and applicable U.S. Department of Health and Human Services (“HHS”) guidance specify that a reasonable, cost-based fee may include (i) certain costs for the labor required to copy the medical record (subject to certain limitations, as noted below); (ii) the physician’s costs reasonably incurred for supplies (e.g., costs for paper, toner and the like for paper copies, or for CDs, USB drives, or similar electronic media, if requested); and (iii) the physician’s costs reasonably incurred for postage, if the patient requests mail delivery to him or his designee. Only charge postage if the patient specifically requests mail delivery (and agrees to be responsible for the cost).   

Don’t charge a “search” fee or other labor costs not specifically authorized by law.

Physicians may recover only certain, limited costs for labor required to copy a patient’s record.  The fee may not include the physician’s costs, if any, to verify or document the patient’s request, costs to search for or retrieve the record, or costs to access, store and maintain electronic or paper records, or similar infrastructure costs.  Among other things, this means that “search fees,” authorized by state law, are prohibited following the issuance of the new ALBME rules.[3] 

In determining a reasonable, cost-based fee, labor generally may be calculated using either of two methods: (a) the physician’s actual labor cost to respond to the patient’s request; or (b) the average cost to respond to a similar request, based on a schedule.

Don’t charge more than the statutory limits, no matter what.

In contrast to prior rules, the new rules include additional nuance pertaining to the permissible charge for copying electronic medical records. 

If the patient requests a paper copy of his medical record, whether the record is maintained in electronic or paper form, or an electronic copy of his paper record, the physician may charge a reasonable, cost-based fee, calculated using the factors listed above. The fee may be a per page fee, so long it is a reasonable, cost-based fee.[4]  As in the past, the new rules limit the amount a physician may charge for copies to $1.00 per page for the first 25 pages and $.50 per page for additional pages, plus the actual cost of mailing the record.[5] 

However, if the patient requests an electronic copy of his electronic record, (i) the physician may not charge a per page fee (regardless of amount); and (ii) the physician may either charge (a) a reasonable, cost-based fee, as determined above (subject to the prohibition on per page fees) or (b) a flat fee of $6.50. 

Don’t charge patients for copies if they can’t afford it.

Significantly, recent changes in federal and Alabama laws (i.e., HIPAA and the new ALBME rules) prohibit a physician from charging any fee to make copies of the medical record of a patient who is not able to pay.[6]  Unfortunately, there is no specific guidance to help physicians determine whether a patient is able to pay a reasonable, cost-based fee.  The new rules indicate that, in making this determination, physicians “should give primary consideration to the ethical and professional duties owed to other physicians and to their patients.” 

Don’t charge for access via an online patient portal.

Likewise, physicians may not charge a fee to a patient to access his electronic health record.  Specifically, HIPAA precludes physicians and other covered entities from charging a fee to the patient to access his record using the View, Download and Transmit functionality of a certified electronic health record (“CEHRT”).

Notify the patient about any charges in advance.

Laws also prohibit a physician from charging a fee for copies unless the physician notifies the patient about the fee in advance (i.e., when the patient makes the request).  The physician must also provide the patient with a breakdown of the fee, upon request.  In fact, HHS recommends that the physician make its normal charges for copies available to the public on its website or by other means. 

Discussion

The new ALBME rules include some limitations not before instituted in previous rules.  It is important to note that the limitations discussed in this article only apply to a request made by the patient.[7]  So, for example, if a patient needs to provide copies of his medical record to an attorney, a physician may be permitted to charge a different (read: greater) fee if the attorney makes the request (by subpoena, for example), as opposed to the patient requesting that the physician transfer the records to the attorney.

The new rules also include provisions intended to bring the Alabama rules into compliance with applicable provisions of the federal HIPAA rules.[8]  While the new rules provide needed clarity as to certain matters, questions remain.  Likewise, HIPAA imposes certain additional limitations on permissible charges that must be taken into account, even though they are not mentioned in the ALBME rules.

In any event, the fact is that, as in most legal and regulatory matters, the answer to the seemingly simple question, “What can I charge to make a copy of the patient’s record?” is that it depends on a number of factors.  In addition, federal and State of Alabama authorities have made it clear that they intend to target physicians who charge excessive fees in future enforcement actions.  Consequently, it is vital that physicians have a proper understanding of the issues addressed above and promptly take appropriate action to comply. 

Nothing in this article should be considered legal advice.  In the event you need legal advice in respect to the matters above, or other matters, please contact appropriate legal counsel.

[1] Ms. Bryant is a Juris Doctor candidate at the University of Alabama School of Law. 

[2] See Ala. Admin. Code § 540-x-9-.10(2).

[3] Note Section 12-21-6.1 of the Alabama Code still permits a $5.00 “search fee” to be charged.  HIPAA explicitly pre-empts Alabama law on this issue.  It is not clear whether or when the Alabama legislature will update the statute. 

[4] Although HIPAA does not specify a per page fee that constitutes a reasonable, cost-based fee, there is no indication that the (maximum) per page fees specified in the new ALBME rules would not pass muster.   

[5] See Ala. Admin. Code § 540-x-9-.10(2).

[6] Ala. Admin. Code 540-X-9.10(2). 

[7] Note HIPAA treats a request by the patient’s personal representative (as defined in the Privacy Rule) as a request made by the patient.

[8] “HIPAA” means, in this context, the federal Health Insurance Portability and Accountability Act, together the privacy, security and breach notification rules promulgated thereunder, as set forth at 42 CFR Part 160 and Part 164, as modified by the Health Information and Technology for Economic and Clinical Health Act of 2009 (“HITECH”).