There’s little question that patients should have access to their electronic health records, but what should health care providers charge for copies of the electronic documents? A draft of proposals by the Office of the National Coordinator (ONC) for Health Information Technology aims to help providers determine how to calculate these costs.
Electronic file size was a top issue addressed by the ONC at two recent privacy and security workgroup meetings. The group recommended that electronic file size not be used as a proxy for “pages” in setting patient fees for electronic access. Labor, media, and search and retrieval efforts are more appropriate considerations when calculating costs, said Stanley W. Crosley, chair for ONC’s privacy and security workgroup and a Washington data privacy and health information attorney.
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“The answers were pretty clear across the board that it really wasn’t a very good proxy,” Mr. Crosley said during a Sept. 28 workgroup meeting. “Really it’s more about labor charge and media charge.”
ONC’s privacy and security workgroup discussed cost considerations for electronic protected health information (PHI) during a Sept. 21 meeting and proposed suggested guidance to the Office for Civil Rights (OCR) at a follow-up meeting on Sept. 28. The workgroup’s recommendations stem from a request by the Obama administration that the U.S. Department of Health & Human Services and ONC collaborate to address barriers that prevent patients from accessing PHI. The president’s Precision Medicine Initiative calls for the OCR to develop additional guidance for health care providers and the public about accessing electronic health information under HIPAA.
Few states have addressed how physicians and other health providers should charge for EHR requests, and requirements differ widely in states that do regulate the activity, Mr. Crosley said during the meeting. Illinois, for example, allows doctors and hospitals to charge 50% of the paper-based per-page fee for electronic records retrieved from scanning, digital imaging, electronic information, or another digital format. Ohio does not distinguish between paper and electronic records and allows providers to charge the same per-page fee for both. Most states base fees for paper records on pages, with some states setting limits on maximum copying costs.
Developing cost guidelines around electronic PHI is more complex than meets the eye, ONC members noted at the Sept. 28 meeting. Questions include how producible format should affect fees, whether the cost of electronic data should be comparable to paper copies, and to what extent labor should be factored into cost. Making matters more complicated are recent federal regulations under the Health Information Technology for Economic and Clinical Health (HITECH) Act that mandate what costs can and cannot not include. The 2013 Omnibus Rule, which made amendments to HIPAA as required by the HITECH Act, gives patients the right to obtain health information copies in the form and format they wish, as long as that form is “readily producible” by the covered entity. Fees cannot include costs associated with searching for or retrieving the requested information, but may include labor charges such as time spent to create and copy the electronic file or the compiling, extracting, scanning, and burning health information to media.
“The interaction of these two points creates some issues for covered entities as well as for the charges being offered,” Mr. Crosley said.
As part of its recommendations, ONC suggests that OCR define search and retrieval and distinguish between search and retrieval costs versus copying and duplication costs. In future guidance, OCR should also provide more precision around calculation of labor, media, and search and retrieval costs as well as provide examples of hypothetical scenarios for clarity, the workgroup proposes. In addition, ONC would like OCR to clarify how to handle more restrictive privacy state laws if patients want a doctor to send a record to a third party. As part of the 2013 Omnibus rule, patients can direct a covered entity to transmit a record directly to an individual’s designee or third party.
The ONC workgroup based its recommendations on a survey of questions provided to a group of health providers, EHR vendors, and patients about cost for electronic PHI. The Sept. 28 suggestions are not formal recommendations, but will be used by ONC as a basis to develop final consideration points for the OCR.
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