Urgent Care Providers Should Think Twice When
Setting Copy Fees
Kim Kannensohn, Amanda Enyeart, John Saran
McGuire Woods LLP
Under the Health Insurance Portability and Accountability Act (HIPAA) Privacy
Rule, a patient has a right to request a copy of protected health information
(PHI) from an urgent care provider that qualifies as a covered entity and
provides medical care to the patient. The urgent care provider may also provide
an explanation or summary of PHI, upon agreement of the patient. The urgent
care provider may charge the patient a fee for copying the PHI. However, the
fee must be both reasonable and cost based. The fee may include costs for the
following (i) staff labor for paper or electronic copying or to prepare an
explanation or summary of the patient’s PHI upon request; (ii) office supplies
and media devices for creating the paper or electronic copies; and (iii) postage
for the delivery of copies and summaries. HIPAA does not allow an urgent care
provider to charge a standard search or retrieval fee for the provision of
paper or electronic copies of PHI to a patient, even if such fee covers actual
retrieval costs. These limitations may create a conflict with state law and may
trip up an unwitting urgent care provider who believes in good faith that it is
charging a patient appropriately.
An urgent care provider must follow state law when setting copy fees.
However under HIPAA’s preemption rules, if HIPAA is stricter than state law,
i.e., more protective of a patient’s privacy rights, then HIPAA
controls. Many states set limitations on standard fees, labor costs and
reasonable per-page fees that an urgent care provider may charge a patient for
providing the patient with a copy of his or her medical records. These standard
fees sometimes include a provision for a search and retrieval fee, but under
HIPAA an urgent care provider may not charge a search or retrieval fee to a
patient. Thus, any such fee should be removed from an invoice or other
statement provided to a patient in connection with the fulfillment of an access
request and should not be collected from a patient at an urgent care provider
site. Similarly, the Department of Health and Human Services (HHS) utilizes
state law limits to define a reasonable fee under HIPAA, but under HIPAA an
urgent care provider must charge a fee that is also cost based, thereby
limiting the total allowable charge.
HHS interprets labor costs to include time spent by skilled technical staff
to create and distribute electronic PHI files through compilation, extraction,
scanning and the burning of PHI to media devices. Media devices include CDs and
USB flash drives. Urgent care providers are not required to invest in new
technologies or maintain data storage infrastructure just to comply with a
patient’s request. Thus, urgent care providers must not pass on the costs of
any new technology or data storage infrastructure to their patients.
The following illustrates the application of HIPAA’s limitation on fees that
may be charged to a patient in connection with the fulfillment of the patient’s
access request: An urgent care provider is located in State A, which imposes a
search fee of $10, a ten cent-per-page fee limitation and a labor fee up to $20
for paper and electronic copies of medical records. A patient walks into the
urgent care provider site, undergoes an evaluation by a physician and then
requests electronic and paper copies of her PHI from that visit without the
intent to maintain an ongoing patient relationship.
- The urgent care provider
should not charge the patient a search fee of $10, allowed by State A, as
HIPAA prohibits the urgent care provider from charging a standard search
or retrieval fee for the provision of a patient’s PHI.
- All page rates charged by the
urgent care provider in State A from one to ten cents per page would be
reasonable under HIPAA, and any rate over ten cents per page would be
unreasonable. However, a copy fee must also be cost based. Thus, if the
cost of copying PHI by the urgent care provider in State A is five cents
per page, and yet the urgent care provider charges ten cents per page in
accordance with the limits of the law of State A, it will run afoul of
HIPAA. While both rates are reasonable, the urgent care provider may
charge up to only five cents per page because it can recover only the
actual cost of providing such copies.
- State A’s $20 limitation on
the labor fee will be the ceiling for what HHS considers reasonable (i.e.,
if labor costs exceed the $20 limitation, only $20 may be charged).
However, under HIPAA the urgent care provider may charge only an amount,
up to the State A limit of $20, that reflects the actual labor costs to
the urgent care provider for the copying of the medical records and time
spent by skilled technical staff to create and distribute electronic PHI
files through compilation, extraction, scanning and the burning of PHI to
media devices such as CDs and USB flash drives. Finally, the labor costs
must also not take into account any time spent on searching for or the
retrieval of the medical records.
you have any questions regarding HIPAA restrictions or state law limitations on
copy fees, please contact one of the authors.
McGuire Woods LLP