In the NPRM, we proposed to require covered health care providers and health plans, upon accepting a request for access, to notify the individual of the decision and of any steps necessary to fulfill the request; to provide the information requested in the form or format requested, if readily producible in such form or format; and to facilitate the process of inspection and copying.
We generally retain the proposed approach in the final rule. If a covered entity accepts a request, in whole or in part, it must notify the individual of the decision and provide the access requested. Individuals have the right both to inspect and to copy protected health information in a designated record set. The individual may choose whether to inspect the information, to copy the information, or to do both.
In the final rule, we clarify that if the same protected health information is maintained in more than one designated record set or at more than one location, the covered entity is required to produce the information only once per request for access. We intend this provision to reduce covered entities' burden in complying with requests without reducing individuals' access to protected health information. We note that summary information and reports are not the same as the underlying information on which the summary or report was based. Individuals have the right to obtain access both to summaries and to the underlying information. An individual retains the right of access to the underlying information even if the individual requests access to, or production of, a summary. (See below regarding requests for summaries.)
The covered entity must provide the information requested in the form or format requested if it is readily producible in such form or format. For example, if the covered entity maintains health information electronically and the individual requests an electronic copy, the covered entity must accommodate such request, if possible. Additionally, we specify that if the information is not available in the form or format requested, the covered entity must produce a readily readable hard copy of the information or another form or format to which the individual and covered entity can agree. If the individual agrees, including agreeing to any associated fees (see below), the covered entity may provide access to a summary of information rather than all protected health information in designated record sets. Similarly, a covered entity may provide an explanation in addition to the protected health information, if the individual agrees in advance to the explanation and any associated fees.
The covered entity must provide the access requested in a timely manner, as described above, and arrange for a mutually convenient time and place for the individual to inspect the protected health information or obtain a copy. If the individual requests that the covered entity mail a copy of the information, the covered entity must do so, and may charge certain fees for copying and mailing. For requests to inspect information that is maintained electronically, the covered entity may print a copy of the information and allow the individual to view the print-out on-site. Covered entities may discuss the request with the individual as necessary to facilitate the timely provision of access. For example, if the individual requested a copy of the information by mail, but the covered entity is able to provide the information faster by providing it electronically, the covered entity may discuss this option with the individual.
We proposed in the NPRM to permit the covered entity to charge a reasonable, cost-based fee for copying the information.
We clarify this provision in the final rule. If the individual requests a copy of protected health information, a covered entity may charge a reasonable, cost-based fee for the copying, including the labor and supply costs of copying. If hard copies are made, this would include the cost of paper. If electronic copies are made to a computer disk, this would include the cost of the computer disk. Covered entities may not charge any fees for retrieving or handling the information or for processing the request. If the individual requests the information to be mailed, the fee may include the cost of postage. Fees for copying and postage provided under state law, but not for other costs excluded under this rule, are presumed reasonable. If such per page costs include the cost of retrieving or handling the information, such costs are not acceptable under this rule.
If the individual requests an explanation or summary of the information provided, and agrees in advance to any associated fees, the covered entity may charge for preparing the explanation or summary as well.
The inclusion of a fee for copying is not intended to impede the ability of individuals to copy their records. Rather, it is intended to reduce the burden on covered entities. If the cost is excessively high, some individuals will not be able to obtain a copy. We encourage covered entities to limit the fee for copying so that it is within reach of all individuals.
We do not intend to affect the fees that covered entities charge for providing protected health information to anyone other than the individual. For example, we do not intend to affect current practices with respect to the fees one health care provider charges for forwarding records to another health care provider for treatment purposes.