Amendments to Charges for Medical Records

In the notice published at 52 Pa.B. 7471 (December 3, 2022), the Department of Health (Department) published the guidelines and fees that a health care provider or facility may charge in response to a request for production of medical charts or records. (42 Pa.C.S. §§ 6152, 6152.1, and 6155). This notice updates the notice published on December 3, 2022.

Under 42 Pa.C.S. §§ 6152, 6152.1, and 6155 (relating to subpoena of records; limit on charges; and rights of patients), a health care provider or facility is allowed to charge a fee in response to a request for medical charts or records.  The Secretary of Health ("Secretary"), under 42 Pa.C.S. §§ 6152 and 6152.1, is directed to adjust annually the amounts which may be charged by the health care provider or facility.

The Secretary is directed to base these adjustments on the most recent changes in the Consumer Price Index reported annually by the Bureau of Labor Statistics of the United States Department of Labor. For the annual period of October 31, 2022, through October 31, 2023, the Consumer Price Index was 3.2%.

Accordingly, effective January 1, 2024, the following fees may be charged by a health care facility or health care provider in response to a request for production of medical charts or records:

 
The previously listed fees shall apply for paper copies or reproductions on electronic media whether the records are stored on paper or in electronic format.

In addition to the amounts listed previously, charges may also be assessed for the actual cost of postage, shipping and delivery of the requested records.

The Department is not authorized to enforce these charges.

The above charges, however, are subject to the following exceptions:

(1) An insurer shall not be required to pay for copies of medical records required to validate medical services for which reimbursement is sought under an insurance contract, except as provided in:

a. the Workers' Compensation Act (77 P. S. §§ 1—1041.4 and 2501—2506) and the regulations promulgated thereunder;

b.  75 Pa.C.S. Chapter 17 (relating to Motor Vehicle Financial Responsibility Law) and the regulations promulgated thereunder; or

c.  a contract between an insurer and any other party.

(2) The charges listed in this notice do not apply to an X-ray film or any other portion of a medical record which is not susceptible to photostatic reproduction.

(3) The charges for the production of medical records by a health care provider in response to a request made by either an individual who is the subject of the health information or the individual's personal representative is governed by the Health Insurance Portability and Accountability Act ("HIPAA") and federal regulations enacted under HIPAA, including 42 U.S.C. § 17935(e) and 45 CFR 164.524, as follows:

a.  Electronic health record. Pursuant to 42 U.S.C. § 17935(e), if a health care provider uses or maintains health records in an electronic format with respect to protected health information of an individual, such individual shall have a right to obtain from the health care provider a copy of such information in an electronic format. The individual also has a choice to direct the health care provider to transmit electronically a copy of the health record directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific. Any fee that the health care provider may impose for providing such information (or a summary or explanation of such information) in an electronic format shall not be greater than the labor costs in responding to the request. The Department of Health and Human Services has stated that the labor costs may not include costs associated with searching for and retrieving the requested information.

b.  Health record used or maintained in other types of format (e.g., paper). Pursuant to 45 CFR 164.524(c)(4), if the individual requests a copy of the protected health information or agrees to a summary or explanation of such information, the covered entity may impose a reasonable, cost-based fee, provided that the fee includes only the cost of:

(i) labor for copying the protected health information requested by the individual, whether in paper or electronic form;

(ii) supplies for creating the paper copy or electronic media if the individual requests that the electronic copy be provided on portable media;

(iii) postage, when the individual has requested the copy, or the summary or explanation, be mailed; and

(iv) preparing an explanation or summary of the protected health information, if the individual agrees in advance to such a summary or explanation and the fees to be imposed, in accordance to 45 CFR 164.524(c)(2)(iii).  Similarly, the labor costs under 45 CFR 164.524(c)(4) shall not include the cost attributable to search and retrieval of the records.

Inquiries for further clarification on this exception should be directed to the Office of Civil Rights, United States Department of Health and Human Services, 200 Independence Avenue, S.W., Room 509F, HHH Building, Washington, DC 20201, (866) 627-7748, http://www.hhs.gov/ocr/office/about/contactus/index.html.

Questions or inquiries concerning this notice should be sent to Department of Health, Office of Legal Counsel, Room 825, Health and Welfare Building, 625 Forster Street, Harrisburg, PA 17120, (717) 783-2500.

Persons with a disability who require an alternative format of this notice (for example, large print, audiotape, Braille) should contact the Department of Health, Office of Legal Counsel, at the address or phone number listed previously, or, for speech and/or hearing-impaired persons, call the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).

DEBRA L. BOGEN, MD
Acting Secretary of Health