HB 331 Mammography Legislation Included Medical Records Fees Extension Provision

By Phillip P Bisesi, Esq. (December 2004) ***new contact as of May 2005 C. David Paragas, Esq.

I.          Ohio Law

The Ohio General Assembly recently amended and extended the law regulating the fees that can be charged for copies of medical records.  The original law was to sunset on December 31, 2004, so the legislature enacted Substitute House Bill 331 (125th GA, 2003-2004), which was signed by Governor Taft on December 22, 2004 and became effective immediately.

            Prior to H.B. 331, Ohio law required health care providers and medical records companies to provide patients and their representatives with copies of medical records on request.  In addition, a health care provider was only allowed to charge a patient an initial fee of $15, and for paper records, $1 per page for the first ten pages, $.50 per page for pages 11 through 50, and $.20 per page for pages 51 and up.  For non-paper records, only the actual cost of making the copy was allowed to be charged.  For either paper or non-paper records, the cost of any postage may also have been charged.

            H.B. 331 amended the fees that can be charged for copies of medical records and established two fee schedules.  The first applies when the request is from a patient or a patient's personal representative.  The second applies when the request comes from someone who does not fall into those categories.  "Personal representative" is defined as a minor patient's parent or guardian, a person with durable power of attorney for health care for a patient, or a person responsible for a patient's estate. 

            For a patient or a patient's personal representative, health care providers may charge, for data recorded on paper, $2.50 per page for the first ten pages, $0.51 for pages 11 through 50, and $.20 for pages 51 and up.  No initial fee may be charged.  For non-paper records, $1.70 per page may be charged.  For persons other than a patient or their personal representative, e.g. a patient's attorney, health care providers may charge for paper records, an initial fee of $15.35, $1.02 per page for the first ten pages, $0.51 per page for pages 11 through 50, and $.20 per page for pages 51 and up.  For non-paper records, $1.70 per page may be charged.  In all cases, the cost of any postage may also be charged.

            Certain persons or entities are entitled to one (1) free copy of a patient's medical record, including the Bureau of Workers' Compensation, the Industrial Commission, the Department of Job and Family Services, the Attorney General, and a patient or their personal representative if the record is needed for a Social Security disability claim or an application for Supplemental Security Income.  Patients and health insurers are allowed to contract with a health care provider for fees that differ from those in the law.

            Starting in 2006, H.B. 331 requires the Director of Health to adjust the fee schedules based on the Consumer Price Index.  The law will then sunset on December 31, 2008 unless extended.

            The law does not generally apply to medical records whose release is covered by state and federal long term care facility regulations, personal information held by the state, or alcohol and drug abuse patient records protected by federal regulation.

II.         The Impact of HIPAA

            Like the right to access medical records under Ohio law, the HIPAA Privacy Rule provides an individual a right of access to inspect and obtain a copy of their protected health information.  The requirements of the Privacy Rule take precedent over contrary provisions of Ohio law unless the provisions of Ohio law are more stringent than the Privacy Rule.

            The Privacy Rule only allows a health care provider to charge a reasonable, cost-based fee for copies.  This fee may include only the cost of copying (including supplies and labor), postage (if any), and preparation of the summary or explanation (if applicable).  Therefore, health care providers were not allowed to charge the initial $15 fee (at least not beyond actual costs) previously allowed by Ohio law.  The Ohio General Assembly recognized this when they removed the initial fee for patients and their personal representatives in H.B. 331. 

            Finally, health care providers should be aware that, although they must respond to a request for access only within a reasonable time under Ohio law, they must respond within thirty (30) days after the receipt of the request (sixty (60) days if offsite) under the HIPAA Privacy Rule.