By Arthur D. Leritz, Attorney at Law
Recently, we have received several questions concerning the Federal Health Information Technology for Economic and Clinical Health (HITECH) Act and how it impacts a health care professional’s practice when responding to requests for electronic patient records and associated costs. We have looked a little deeper into the HITECH Act to respond to these questions.
HITECH was part of the American Recovery and Reinvestment Act of 2009, and was implemented in 2010.  However, key provisions of the Act related to electronic records have not been fully realized until recently. For example, the Act provides:
- A patient has a right to obtain a copy of their patient file in an electronic format if the health care provider/facility has implemented an electronic health record system as part of their practice;
- A health care provider is only allowed to bill “the cost of. . . [c]opying, including the cost of supplies for and labor of copying.”
One take away from our reading of the law is an important one: A health care provider cannot charge the per page fee in Washington for paper copies when the electronic format is available. Here is the background on this.
Some providers and facilities were early adopters of storing electronic records for their patients, and some were late bloomers. But by now, most health care professionals have installed and implemented an electronic records-keeping system for patient charts. In part, the intent of the HITECH law was to save the provider time and streamline the record request process. Producing an electronic record should eliminate the time-intensive task of manually taking the file apart, copying it, and reassembling it again. Because the provider saves so much time and labor, it is fair that the patient be charged less.
HITECH was also intended to save your patient from the onerous expense of accessing their own medical records, and to facilitate better access to a medical file for the patient, other health care providers, insurers, or the patient’s representative.
Practically speaking, the law means that when you receive a request from your patient or the patient’s attorney with an authorization requesting ONLY an electronic copy of the patient’s record AND your office has implemented an electronic health record system, then under the HITECH Act you are required to produce an electronic copy. You cannot print out the records and then charge the patient per page. You are allowed to charge a “reasonable fee” for the cost of the electronic records that are placed on a CD, plus sales tax, postage, and the clerical fee of $25.00, under Washington Law.
We recommend that if you receive a request to produce only an electronic copy of the patient record and you are able to comply, then you should do so and change your copying charges accordingly. CDs are inexpensive, and transferring an electronic file to a CD should take your administrative staff just a few minutes.
So what is a “reasonable fee” to produce records on CD? In our experience, we have seen most local large hospitals charge a small fee for the CD itself. Swedish Medical Center, for example, charges $6.50 for a patient’s records on CD.
If your documentation system is electronic, but records cannot be copied and produced electronically, we recommend that you contact your software vendor to modify this practice, or be willing to provide your patient with paper copies while charging only what it would have cost for an electronic production.
If the provider does not have an electronic records system but is willing to produce a copy of the records electronically, then the provider IS ALLOWED under Washington law to charge the traditional way: a clerical fee, the per page fee for scanning the records to an electronic format, plus sales tax and postage, as follows:
- The flat fee of $25.00 for clerical searching and handling the record request;
- A charge of $1.12 for each of the first 30 pages of the record; and
- A charge of .84 cents for each page after the 30th page to the end of the patient file.
We are aware of attorneys in our community that threaten to file a complaint with the Federal Department of Health and Human Services if you cannot produce electronic records from a paper record. In our interpretation of the HITECH Act, we think that such threats are unfortunate, misplaced, benign, and should not be taken seriously.
At Adler Giersch ps, our offices have transitioned into and electronic record system and much prefer receiving records in an electronic format. It saves time for us and money for our clients. If you have questions on the production of records or are confused on how to proceed with a request, email me at email@example.com.
 42 U.S.C.A. §17935(e)(1).
 45 CFR 164.524(c)(4)(i).
 45 CFR 164.524(c)(4)(i).
 RCW 70.02.010 (37); WAC 246-08-400.