Medical Records - Fee for Copying

December 2013  

  NOTICE: Please check the  Texas Medical Board Web site for current updates on its rules and policies with respect to this issue.

Before proceeding we must inform you that we cannot provide legal advice to individual TMA members because Texas prohibits the "corporate practice of law" (Texas Government Code Ann. §81.101). In addition, the State Bar of Texas has ruled that corporate-employed attorneys may not provide legal services to customers of the corporation if a corporation receives fees that are, to any extent, compensation to the corporation for the attorney's legal services to the customers. To do so is a prohibited form of "fee-splitting" (Ethics Opinion 498, January 1995 ). The fact that TMA is a non-profit corporation does not seem to change the conclusion. However, we can provide general legal information about this topic. Because your facts may vary, you should contact your own retained counsel for true legal advice and representation. 

Copy Fees Under the Texas Medical Practice Act

For many years, the Medical Practice Act allowed physicians to charge a "reasonable fee" for release of medical records.  However, that law proved unworkable as no one could agree what particular amount was reasonable nor was there any standard for determining what was an unreasonable fee.  The 1995 Texas Legislature directed the then Texas State Board of Medical Examiners to adopt rules interpreting the "reasonable fee" standard in the law and set the maximum charges for release of medical records.

The Texas Medical Board (TMB) has adopted rules setting the maximum cost of copies. Under these rules, physicians may charge no more than $25 for the first twenty pages, and 50¢ for each page thereafter, along with a reasonable fee for the actual costs of mailing, shipping or  delivery. [1] Thus, a physician may charge a maximum of $ 27.50 for a 25-page chart. No specific retrieval or "pull fee" is allowed in the final rules[2]  Where the request is for films or other static diagnostic imaging studies the practice is entitled to no more than $ 8.00 per copy of an imaging study. [3]    These are maximums and the rules bear out that the fee actually charged must be "cost based."   Thus, merely utilizing the guideline may not be sufficient to meet mandate imposed by the regulation. Pursuant to Board rules, physicians are permitted to charge separately for copies of medical and billing records. [4]

Texas law and TMB rules govern what physicians may charge, but does not address who must pay. This means these rules appear to govern what physicians may charge anyone (patient, insurance company, another physician practice, patient's attorney, etc.) in most non-subpoena situations (there are exceptions discussed below).

Copy Fees For Electronic Medical Records
On September 27, 2013, the TMB published proposed amendments to rule §165.2 in the Texas Register which, if adopted, would establish a maximum fee schedule for medical record copies provided in an electronic format. [5]   TMA commented on these proposed rules.  If some form of these proposed rules are adopted, this section of the white paper will be updated accordingly. 

Withholding Copies of Records for Failure to Pay Copy Fee
Generally, the regulations permit physicians to retain the records until payment of a copy is received (keep in mind there are exceptions, discussed below).  However, to appropriately withhold copies for failure to include payment of the copy fee, a physician is required to send the requesting party written correspondence of the need for payment within ten calendar days of receiving the request. Failure to send the letter impairs the practice's ability to withhold the records.  The TMB further requires that the "10-day" letter be made part of the patient's billing record. [6]   It is important to note that if the records are requested by a physician licensed in the U.S. or Canada for the purposes of providing emergency or acute medical care to the patient the records cannot be withheld. [7]  

Although a practice is permitted to withhold copies for lack of payment of the copy fee, the TMB has prohibited practices from utilizing requests for copies as a method of collecting on overdue accounts.  Therefore, where a patient has a past due account for treatment previously rendered to the patient and that patient pays for the copies, the records must be provided to the patient.  [8]  The TMB does enforce this particular provision.  Consider the following summary (with the physician's name omitted) that appeared in a Texas Medical Board newsletter:

P, M.D., Texas 

On August 26, 2005, the Board and Dr. P entered into an Agreed Order assessing an administrative penalty of $500. The action was based on allegations that Dr. P failed to timely provide to one patient properly requested medical records while under the misunderstanding that records can be withheld because of an outstanding bill.  [9] 

It is possible that, in addition to the TMB penalty, the physician paid defense costs associated with hiring legal counsel.  Also, the physician must now report on credentialing forms that he has been the subject of a complaint and penalty by the Texas Medical Board.

The law permits a patient to name a recipient of the copies other than himself or herself.  [10]  There is no exception in the law that would permit a physician to refuse disclosure based solely on the objection of who is the named recipient (even if that recipient is an attorney).  

When a Practice Cannot Charge for Copies - Exceptions to the Regulations.
A physician is entitled to receive copy fees for records before releasing the records, except  where the records are requested:

  1. by a licensed Texas health care provider or any American or Canadian licensed physician for emergency or acute medical care; [11] or
  2. to support an application (or an appeal) for disability or other benefits or assistance under:  
  • Aid to Families with Dependent Children;
  • Medicaid;
  • Medicare;
  • Supplemental Security Income; and
  • Federal Old-Age and Survivors Insurance; and
  • Veterans' Benefits  [12]    
 

Where the requestor attempts to avoid fees under number (2), above, the law states:

A person . . . that requests a record under this section shall include with the request a statement or document from the department or agency that administers the issuance of the assistance or benefits that confirms the application or appeal. [13] 

The fee is only waived when the patient or his attorney requests the records and includes a statement or document from the agency; it does not apply when a state or federal agency requests the records.

A physician may charge a fee for the medical or mental health record of a patient requested by a state or federal agency in relation to the patient’s application for benefits or assistance under number (2) above or an appeal relating to denial of those benefits or assistance. [14] 

A physician is not required to provide more than one complete record requested for veterans’ benefits without charge.  If additional material is added to the patient or former patient's record, on request of the patient the physician shall supplement the record provided for veterans’ benefits without charge. The law does not appear to permit charging for copies of supplemental records to support applications under the other mentioned programs.  [15]  

Affidavits Not Related to Subpoenas.
The regulations provide for a "reasonable fee" cap for supporting "affidavits for medical records custodian" which often accompany requests for release of medical records in pre-litigation situations.  The regulations permit a charge of up to $15 for completing this document.  [16] 

How Does HIPAA Privacy Regulations Affect the Amount the Practice Can Charge? Or Does HIPAA Permit the Practice to Charge a Fee?
The state regulations also contain provisions relating to the HIPAA privacy standards.  Physicians who must comply with HIPAA (and not all physicians must do so, as there are exceptions) must adhere to the federal requirement.  Under federal regulations, the fee must be cost based and include only the cost of supplies and labor of copying along with any postage necessary to mail the records.  The federal regulations - just as in the state regulations - prohibit physicians from charging fees for retrieving the records, handling the records, or processing the request for access. [17]    The federal government does not impose a different standard in fees for copies.  The federal government stated, when adopting the HIPAA regulations that, "Fees for copying and postage provided under state law, but not for other costs excluded under this rule, are presumed reasonable." [18]    The TMB medical record copy fee rules are adopted by command of state law. [19] 

The HIPAA privacy regulations do not, by their own terms, expressly permit withholding of records for failure to pay the copy fee. However, the regulation and the government comments implicitly permit this practice. Consider the following government discussion:

The inclusion of a fee for copying is not intended to impede the ability of individuals to copy their records. Rather, it is intended to reduce the burden on covered entities. If the cost is excessively high, some individuals will not be able to obtain a copy. We encourage covered entities to limit the fee for copying so that it is within reach of all individuals.  [20] 

One would not expect that the agency adopting the regulations would be concerned about high fees preventing access to records unless covered entities are permitted to withhold for failure to pay.

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Copy Fees for Hospitals

Hospitals may also charge for copies. However, the hospital fee schedule for copies is governed by a different law. Texas Health & Safety Code § 241.151 et. seq . creates special medical records release provisions for licensed hospitals - and only licensed hospitals . They do not apply to physician offices.  The fee is to be adjusted accordingly based on certain changes to the consumer price index, effective Sept. 1, 1996, and annually thereafter.  The fee schedule for hospitals only as of October 11. 2013 is as follows:  [21]   

  1. a basic retrieval or processing fee, which must include the fee for providing the first 10 pages of copies and which may not exceed $45.02; and   

A.  a charge for each page of:

1. $1.51 for the 11th through the 60th page of the provided copies; 
2. $.75 for the 61st through the 400th page of the provided copies; and 
3. $.40 for any remaining pages of the provided copies; and 

B. the actual cost of mailing, shipping, or otherwise delivering the provided copies 

  1. if the requested records are stored on microform, a retrieval or processing fee, which must include the fee for providing the first 10 pages of the copies and which may not exceed $68.58; and which may not exceed $68.58; and    

A.  $1.51 per page thereafter; and

B. the actual cost of mailing, shipping, or otherwise delivering the provided copies; or

  1. if the requested records are stored on provided on a digital or other electronic medium and the requesting party requests delivery in a digital or electronic medium, including electronic mail: 
 

A.  a retrieval or processing fee, which may not exceed $81.57; and

B. the actual cost of mailing, shipping, or otherwise delivering the provided copies. 

 

In addition, Texas Health & Safety Code §241.154 prohibits a hospital from charging a fee for providing health care information where the fee is prohibited under Texas Health & Safety Code §161.202 (regarding support for applications for disability). 

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Copy Fees for Mental Health Records

Under the Texas Mental Health Code, if the patient requests a summary or narrative of  "mental health records," the "mental health professional" (which includes physicians) must respond or give the patient a written reason for a refusal to disclose.[22]   A professional or other entity who has possession or control of a mental health record shall grant access to any portion of the record to which access is not specifically denied, within a reasonable time and  may charge a reasonable fee.  [23]  

It is unclear whether the TMB rules regarding fees for medical records generally apply to fees for copies of mental health records, specifically. The regulations do not mention this portion of the Health and Safety Code. Nonetheless, it may be prudent for physicians who are "mental health professionals" to follow the TMB  rules in this area.

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Copy Fees for Workers' Compensation

Physicians who treat workers' compensation patients are required to send copies of the initial medical report to the workers' compensation carrier, the injured worker, and the worker's representative within seven (7) working days of the initial visit. [24]    The physician shall provide a copy of the medical records to the Texas Department of Insurance (TDI) Division of Workers' Compensation upon request.  No written consent to release medical records is required in this situation and the HIPAA privacy regulation contains an exception for workers' compensation.[25]  

The treating doctor may charge the workers' compensation carrier for reports and copies of records only according to a fee schedule adopted by the TDI Division of Workers Compensation:   

Required reports on TWCC forms $15.00  [26] 
One or two page narrative up to $100
Additional narrative pages $40.00 each
Copies of clinical notes $.50 per page
Hospital records an initial fee of $5.00 plus $.50 per page up to twenty pages, $.30 per page thereafter to twenty pages, $.30 per page thereafter
Microfilm $.50 per page
Copies of x-rays $8.00 per film.  [27] 

A physician may not charge the TDI Workers' Compensation Division for any documents it requests or requires. [28]  A physician must provide the injured worker and/or the worker’s representative with an initial copy of the medical documentation without charge. [29]   However, the injured patient or patient representative shall reimburse the physician for subsequent requests of the same medical documentation. [30]

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Copy Fees and Subpoenas

When you receive a subpoena duces tecum for medical records, are you entitled to be paid for your trouble?
While it is customary to reimburse professionals for their time in responding to a subpoena (primarily out of a desire to avoid an uncooperative witness who feels he has been “stiffed” out of his copying fee), the Texas Rules of Civil Procedure do not absolutely require parties to lawsuits to pay the persons upon whom they serve subpoenas for either the documents requested or the time necessary to attend a deposition or court hearing (unless the person subpoenaed is called to testify as an expert witness).  This is often an unpleasant surprise to many people, however, it is consistent with established legal precedent.  The U.S. Supreme Court put it this way: “there is a public obligation to provide evidence, and this obligation persists no matter how financially burdensome it may be.” Hurtado v. U.S., 410 U.S. 578 (1973).  

The Texas Rules of Civil Procedure generally state that, “a person served with a subpoena must comply with the command stated therein unless discharged by a court or by the party summoning such witness.”  [31]  Note the language of the rule does not allow someone to refuse to produce any object or writing unless they are first paid a set fee for the records sought.  In other words, a party receiving a subpoena duces tecum may send a bill for their overhead costs, handling or preparation fees, but there is no absolute requirement that the attorney issuing the subpoena has to pay that bill. 

However, if the opposing party files a motion to quash or modify a subpoena, the court must provide a person served with a subpoena “protection from undue burden or expense."  [32]  

The attitude of attorneys varies greatly in this area: some are willing to pay any reasonable amount while others “play hard ball” and refuse to pay any amount on grounds that the rules of procedure do not mandate that they do so. Since Rule 176 refers to undue expense and the TMB has set “reasonable fees,” a court might recognize what the TMB rules allow as the maximum reasonable cost in subpoena situations where a Motion to Quash has been filed, but there is no assurance that this would be the case. 

This insight is bolstered by another action taken by the 1995 Texas Legislature: the enactment of section 22.004 of the Texas Civil Practice and Remedies Code, which limits compensation paid to a custodian of records (any records) who produces records under compulsion of a tribunal (that likely means a subpoena) to one dollar ($1.00). [33]   This is because of the “rule of statutory construction” that when two laws purport to govern a subject, then the specific law is given preference over the general law. In this case the bill enacting the section of the Civil Practice and Remedies Code is specific since it governs production of documents under subpoena - and the Medical Practice Act does not mention subpoenas. In addition, no professional licensing board is empowered to make rules governing civil procedure or evidence in lawsuits.  That is a task left to the judicial branch of government, not the executive branch.

TMA has a separate whitepaper entitled  Subpoenas for Medical Records .  

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Copy Fees and Utilization Review Agents

The Texas Medical Association worked to pass a utilization review regulation bill in the 1991 Texas Legislative Session.  The law is codified in statute in the Insurance Code as Chapter 4201 "Utilization Review Agents." Final rules were adopted by the Texas Department of Insurance and can be found at 28 Texas Administrative Code §19.1701-19.1719.

Under provisions of this act, a Utilization Review ("UR") agent shall   reimburse health care providers for the reasonable costs of providing medical information in writing, including copying and transmitting any requested patient records or other documents, unless precluded or modified by contract.  The charges shall not exceed the cost of copying for workers' compensation records. 

A contract provision that could arguably modify the right to be paid under this chapter of the insurance code may read as follows:

The medical records maintained by physician shall remain the property of the physician and shall not be transferred or removed from physician. Physician shall permit MCO with access to medical records for three years following termination of the agreement. Physician agrees to provide any copies of medical records as may be requested by enrollees or MCO.  

The health plan would argue that agreement to provide records as requested means to provide those records without charge.

Exceptions.
These UR provisions do not apply to certain defined types of reviews, including: 1) Medicare/Medicaid, 2) Texas Worker's Compensation Act claims, 3) Claims under an automobile insurance policy, 4) Benefits of employee welfare benefit plans under the Employment Income Security Act of 1974 (ERISA), and 5) Insurance companies or Health Maintenance Organizations, unless   they perform utilization review.  

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Copying Fees in Other Situations - Governmental Audits

There are a number of governmental entities that have rights to audit records of various sorts in a physician’s office.  Most of these agencies require that physicians make them copies at no charge when they are conducting an investigation.  The NHIC Provider Procedures Manual provision is fairly representative: “Upon request the provider will submit copies of such records, at no cost, to representative of the above organizations” (in this case the Texas Department of State Health Services or NHIC or Attorney General’s Medicaid Fraud Control Unit or Texas Department of Protective and Regulatory Services).  If you are subject to a governmental audit be very clear what your rights and responsibilities are. Also, the Texas Medical Board pursuant to an investigation may request medical records without charge.

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Conclusion

Physicians are often permitted to charge for copies of medical records.  Practices should not confuse the rules that affect physicians with the fee schedule that affect hospitals.  However, the general rule has a number of exceptions and policies should be put into place within the practice to prevent improper charges.

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[1]  22 Texas Administrative Code § 165.2(e), (emphasis added)

[2]  Id., (emphasis added)

[3]  22 Texas Administrative Code §165.3(e).

[4]  22 Texas Administrative Code §165.2(e)(1). 

[6]  22 Texas Administrative Code §165.2(g).

[7]  22 Texas Administrative Code §165.2(f), (emphasis added).

[8]  22 Texas Administrative Code §165.2(h).

[9]  Texas Medical Board Bulletin, Volume 3, No. 1 (Fall 2005), (emphasis added). 

[10]  Texas Occupations Code §159.005(b)(3).

[11]  22 Texas Administrative Code §165.2(f).

[12]  Texas Health & Safety Code §161.202(a).

[13]  Texas Health & Safety Code §161.202(c).

[14]  Texas Health & Safety Code §161.202(b).

[15] Texas Health & Safety Code §161.202(d).

[16]  22 Texas Administrative Code §165.2(e)(1).

[17]  45 Code of Federal Regulations §164.524(c)(4).

[18]  65 Federal Register 82557, (emphasis added).

[19]  Texas Occupations Code §159.008.

[20]  Id., (emphasis added).  

[22] Texas Health & Safety Code §§611.001 and 611.0045.  

[23] Texas Health & Safety Code §611.0045 (emphasis added).

[24]  28 Texas Administrative Code §42.35.

[25]  45 Code of Federal Regulations §164.512(l).

[26]  28 Texas Administrative Code §42.175 (a)(2).

[27]  28 Texas Administrative Code §134.120.

 [28] Id (emphasis added).

[29] Id

[30] Id

[31] Texas Rules of Civil Procedure 176.6(a).

[32] Texas Rules of Civil Procedure 176.7.

[33] See Texas Civil Practice & Remedies Code §22.004.

NOTICE: Please check the  Texas Medical Board Web site  for current updates on its rules and policies with respect to this issue.

 

Revision Date : December 2013 
Prepared by: Office of the General Counsel

 

NOTICE: The Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. This is not a substitute for the advice of an attorney. While every effort is made to ensure that content is complete, accurate and timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication and assumes no legal responsibility for loss or damages resulting from the use of this content. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought. Any legal forms are only provided for the use of physicians in consultation with their attorneys. Certain links provided with this information connect to websites maintained by third parties. TMA has no control over these websites or the information, goods or services provided by third parties. TMA shall have no liability for any use or reliance by a user on these third-party websites. 


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