The HHS Office for Civil Rights (OCR) is reminding covered entities (CEs) that they there is no cap on the fees they may charge individuals or their personal representatives for providing them, or third parties to whom the CEs are directed, with copies of protected health information (PHI)—within specific limits. Rather, in a new FAQ, the office states that CEs that would prefer not to engage in arduous calculations have the option to charge a flat fee of not more than $6.50 for electronic copies of PHI maintained electronically.
The Health Information Portability and Accountability Act (HIPAA) (P.L. 104-191) Privacy Rule permits CEs to charge fees for copies of PHI. Charges may only include labor, supplies, and postage (45 C.F.R. sec. 164.524(c)(4)). Labor for copying includes only labor for creating and delivering the copy in the form and format (electronic or paper) agreed upon, once the relevant PHI has been identified, gathered, and prepared for copying; search and retrieval costs are not permitted. Labor to prepare a summary or explanation may be included if the individual requests such a summary or explanation and agrees to the costs in advance. Supply costs include costs for paper and toner costs for paper copies and the cost of portable electronic media, if the individual requests a copy on portable media. However, individuals have the right to ask that PHI is simply mailed or emailed. CEs may not charge fees when they simply fulfill a HIPAA access request using its certified electronic health record technology (CEHRT) view, download, and transmit feature. CEs must notify individuals of the approximate fees they will charge in advance of providing the copies.
CEs may calculate actual costs individually for each request or develop a schedule of labor costs based on the average costs required to fulfill standard requests. CEs may not charge per-page fees for PHI maintained electronically, even when individuals request paper copies. The FAQ clarifies that CEs may charge a flat fee not to exceed $6.50 for standard requests, although they may wish to calculate actual costs in the event of non-standard requests. The OCR reminds CEs, in those situations, that they must still notify individuals of the approximate fee they will charge in advance of providing the copies. Actual costs and average costs may exceed $6.50, provided the fees comply with 45 C.F.R. sec. 164.521(c)(4).