December 12, 2003
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter in which you questioned the propriety of the Department of Correctional Service’s new policy "allegedly under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which requires prisoners to not only pay the $0.25 they would pay per copied page [of their own medical records] pursuant to FOIL, but have to pay up to $13.00 per hour for the person doing the copying (with 1/4 hour being the minimum they could be charged for)."
You contend that "HIPAA does not require the fee that the Department is now charging; it only allows a "covered entity" to charge a copying fee."
According to the U.S. Dept. of Health & Human Services, Office of Civil Rights, "[T]he [HIPAA] Privacy Rule permits the covered entity to impose reasonable, cost-based fees. The fee may include only the cost of copying (including supplies and labor) and postage, if the patient requests that the copy be mailed. If the patient has agreed to receive a summary or explanation of his or her protected health information, the covered entity may also charge a fee for preparation of the summary or explanation. The fee may not include costs associated with searching for and retrieving the requested information. See 45 CFR 164.524" [www.hhs.gov.ocr/hipaa/, Health Information Privacy Frequently Asked Questions, Answer ID #353].
Thus, it appears that covered entities may, but are not required, to charge cost-based fees for copying medical records requested by patients under the HIPAA. It is also noted that the fee may not include costs for searching or retrieving the information.
Notwithstanding the foregoing, it is my understanding that the Department has changed its policy concerning fees relating to medical records. Under the new policy, which appears to be consistent with both HIPAA and §18 of the Public Health Law, the Department charges a fee of fifty cents per photocopy for medical records; no additional fee is charged.
I hope that I have been of assistance.