Can Patients Be Charged for Their Medical Records From a Closed Practice?

You are closing your medical practice and looking for a solution to manage the records that ensures patient care and compliance. You realize that trying to do this yourself comes with risks, unknown costs, and a burden you don’t want to deal with for the next seven years or more, depending on your record types.

When choosing a records custodian, one of the most overlooked questions is whether or not the custodian charges patients for copies of their medical records

Over the past few years, the US Office of Civil Rights (OCR) has increased their focus on penalizing those who charge for copies of records. The HIPAA/HITECH laws set a cap of $6.50 for providing electronic copies of records to patients, or the entity providing the copy can attempt to justify why they can charge more than $6.50. Given the penalties and settlements that records healthcare institutions are incurring, even when attempting to charge just $15-20 for copies of records, OCR is clearly sending a message on this topic. As you can see in the links below, fines are ranging from $85K into the millions of dollars, and the OCR also views charging for records as an obstacle which increases the amount of time it takes for patients to obtain copies of their records.  

With the proposed 2021 change to the HIPAA laws, reducing the initial response time from 30 days to 15 days for patients seeking records to receive an initial response, charging patients for records will only continue to receive more scrutiny from the OCR. A private practice that charged only a few patients more than $6.50 would not likely receive a call from the OCR, but once a records management company is involved, the larger volume certainly attracts OCR attention. As OCR action on this topic continues, there is also ongoing litigation about what third parties such as law firms or insurance companies can be charged for copies of patient records, but this should not be confused with the core issue of charging patients. In addition to this federal standard, many states have even more stringent requirements, including several instances where the law prohibits patients from being charged at all for copies of records. 

If patients are charged more for their medical records than the federal and/or state laws allow, the medical provider will be held liable for the penalties which result. 

The OCR does not have the jurisdiction to impose the fee limitation against health information custodians because the HITECH Act does not apply the fee limitation to custodians. Therefore, if the entity providing the copy of medical records can’t justify why they’re charging more than $6.50, the medical provider is the only one liable for impending penalties. It is the responsibility of the provider to ensure that they are doing business with a business associate that is charging inside the scope of the HIPAA limitations. 

Aside from the legal jeopardy associated with charging patients for their records, even if the charges are within the paltry legal limits, does a retiring physician really want their legacy to be “nickel and diming” their patients after many years of being their trusted provider? How would that retiring physician feel about learning one of their patients experienced an adverse event as a result of not receiving their legacy records in a timely fashion? As many retired physicians who have made this mistake can attest, with the reach of social media and internet searches, angry patients will find and complain to retired physicians who make bad custodial records decisions – disrupting what should be a well-earned rest after years of serving as a successful physician.

Let us help make this an easier transition for you and your patients by taking on the responsibility of records management in a way that’s compliant and cost-effective. Learn more about how we’re able to help medical practices navigate retirement or closure here.

Resources:

https://www.hipaajournal.com/healthalliance-hospital-and-ciox-health-facing-class-action-medical-records-lawsuit/

https://www.hallrender.com/2019/09/13/beware-charging-improper-fees-for-patient-access-to-records-can-cost-providers-big/

https://www.physicianspractice.com/view/failure-provide-patient-records-can-result-hipaa-fine

https://www.hhs.gov/about/news/2020/12/10/hhs-proposes-modifications-hipaa-privacy-rule-empower-patients-improve-coordinated-care-reduce-regulatory-burdens.html

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/business-associates/factsheet/index.html 

Updated June 2022

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