Ohio Law – ORC 3701.741 

The general rule codified by ORC 3701.741 stipulates certain fees that health care providers can charge for the production of medical records. The allowable charges are different depending on who requests the medical records. ORC 3701.741 also carves out exceptions from that general rule which have the effect of creating a right for the patient to acquire, from a health care provider, his/her medical records without charge. See table below for 2023 allowed fees. 

This does not apply to medical records the copying of which is covered by section 173.20 of the Revised Code (requests from a representative of the office of the state long-term care ombudsman program) or by 42 C.F.R. 483.10 (requests from a resident of a long term care facility). Additionally, the U.S. Department of Veterans Affairs is not authorized to pay a fee for copies of medical records and any fee requested will be  denied. 

Federal Law – 45 CFR 164.524 

First, it is important to note policy guidance issued by the Department of Health and Human Services that states that providing individuals with access to their medical record is a necessary component of delivering and paying for healthcare. Therefore, if possible, providers should not charge for a patient to access their medical record, especially in situations where the financial situation of an individual requesting access would make it

difficult or impossible for the individual to afford the fee. HHS is monitoring the fees charged by providers and will pursue enforcement. Providers who do intend to charge a fee need to be mindful of the reasonableness of the fee and record their methodology to avoid a potential investigation. 

The HIPAA Privacy Rule, despite the policy explained above, does permit a small fee to be charged for the production of medical records. The fee may include only the cost of: (1) labor for copying the PHI requested by the individual, whether in paper or electronic form; (2) supplies for creating the paper copy or electronic media (e.g., CD or USB drive) if the individual requests that the electronic copy be provided on portable media (but not the cost of purchasing the portable media); (3) postage, when the individual requests that the copy, or the summary or explanation, be mailed; and (4) preparation of an explanation or summary of the PHI, if agreed to by the individual. 

Costs associated with updates to or maintenance of systems and data, capital for data storage and maintenance, labor associated with ensuring compliance with HIPAA (and other applicable law) in fulfilling the access request (e.g., verification, ensuring only information about the correct individual is included, etc.) and other costs not included above, even if authorized by State law, are not permitted for purposes of calculating the fees that can be charged to individuals. 

In order to determine the proper fee, a provider can 1) calculate actual labor costs for the staff person who is making the copy + the cost for supplies or postage if there is any; or 2) calculate an average cost or schedule of costs to fulfill standard types of record requests (this standard rate can be calculated and charged as a per page fee only in cases where the PHI requested is maintained in paper form and the individual requests a paper copy of the PHI or asks that the paper PHI be scanned into an electronic format). For electronic PHI, the covered entity may either calculate the actual cost for sending the PHI or it may charge a flat fee of $6.50, inclusive of all labor, supplies, and any applicable postage. 

Regardless of the method of calculation the chiropractor chooses, they must provide an estimate of the cost to the patient before providing the medical record. 

Which one applies? 

Sometimes it is difficult to reconcile the federal HIPAA rules with the Ohio Code. The federal law preempts state law, except when state law grants greater access than federal law or where the charges allowed by state law would be less than those allowed by federal law. 

For electronically stored medical records, a per-page fee may not be charged. Therefore, the state law is not appropriate and federal law applies. Providers may either charge $6.50 for the production of the medical record or calculate actual costs on a case-by-case basis.

For paper medical records, a per-page fee may only be charged when the individual requests a paper copy of the PHI or asks that the paper PHI be scanned into an electronic format. If this is the case, the covered entity must calculate what HIPAA permits them to charge when copies of medical records are requested by an individual (or someone acting at the direction of or as a personal representative of an individual), compare that amount to the applicable state law charge limits, and make sure that only the lesser of the two amounts is charged. 

In summary, the per-page fee allowed by Ohio should only be utilized when: (1) the medical records are kept in paper files; (2) the individual requests their record be delivered either as a paper copy or scanned into an electronic format; and (3) if the per-page fee is less than the actual labor cost or the average cost developed by the covered entity. 

However, if the medical record is being requested for one of the reasons in ORC 3701.741 that does not allow a charge for one copy of the medical record, a fee may not be charged. Because greater access to the record is allowed under state law in this instance, state law will rule. 

Finally, HHS has advised covered entities to post on their web sites or otherwise make available to individuals an approximate fee schedule for regular types of access requests. In addition, if an individual requests, covered entities should provide the individual with a breakdown of the charges for labor, supplies, and postage, if applicable, that make up the total fee charged. No matter the method of fee calculation used, the covered entity must always provide an estimate cost before the copy is made.