Under the Health Information Technology for Economic and Clinical Health (HITECH) Act, healthcare providers that maintain electronic medical records are required to provide them to third parties, for the actual cost of production within 30 days of the written request. Psychotherapy records are excluded from HITECH.
HITECH requests must be signed by the patient indicating that it is a patient’s request for medical records to be sent to a third party (i.e. the attorney/representative). When applicable, HITECH preempts state law, unless the state law provides greater rights to the individual.
Providers fulfilling HITECH requests often charge $6.50 for records. Recently, the U.S. Department of Health and Human Services (HHS) clarified that $6.50 is not the maximum amount that can be charged for requests for an electronic copy of protected health information (PHI) maintained electronically. “Charging a flat fee not to exceed $6.50 per request is therefore an option available to entities that do not want to go through the process of calculating actual or average allowable costs for requests for electronic copies of PHI maintained electronically.” See “New Clarification – $6.50 Flat Rate Option is Not a Cap on Fees for Copies of PHI,” U.S. Department of Health & Human Services, Individuals’ Right under HIPAA to Access their Health Information 45 CFR § 164.524.
Accordingly, when requesting electric medical records under HITECH, be aware that the provider can charge only up to $6.50, unless it goes through the process of calculating the actual costs of production.