New Guidance on HIPAA Access Issues: Flat Fees Aren’t the Only Option

HHS recently released a Frequently Asked Question (FAQ) clarifying prior guidance on fees that covered entities may permissibly charge individuals for access to the individuals’ electronic medical records.

The guidance stated that “per page” fees (as may be permissible under state laws) would not be considered “reasonable” pursuant to HIPAA where electronic medical records are at issue and would therefore be impermissible for requests for electronic medical records.  HHS noted that many states have not updated these “per page” fee schedules to reflect the differences in requests for electronic medical records vs. paper records.

HHS stated that covered entities are permitted to charge fees for a copy of electronic medical records where the fees are calculated based on actual or average labor costs associated with fulfilling the request.  HHS further gave covered entities the option of charging individuals a flat fee of $6.50 for all requests for electronic protected health information inclusive of labor, supplies and applicable postage.

The recent clarification was made because some parties were concerned that the $6.50 flat fee charge was the only option.  HHS clarified that providers still have the option of calculating average or allowable costs for copies of electronic medical records.

It is also important to distinguish that the $6.50 fee cannot be charged in situations where the patient only wants to inspect PHI (rather than receive a copy of the PHI).  Further, no fees can be charged for patient access to a patient portal that is being provided in order to fulfill the provider’s requirements under the EHR Incentive (Meaningful Use) program.

In addition, it is important to remember that a state law that provides greater rights of access would preempt HIPAA.  For example, if a state law prohibits providers from charging a fee to patients or a certain subset of patients, then the state law would preempt HIPAA.

 

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