By W. Scott Johnson
In the 2016 session of the Virginia General Assembly, Del. Greg Habeeb, R-Salem, introduced House Bill 1130 to establish a fee schedule governing requests for patient records maintained electronically and to revise the fee schedule for patient records maintained in paper format. House Bill 1130 did not advance, but instead, an agreement was reached with the stakeholder community to meet over the summer of 2016 with the purpose of reaching agreement on legislation to be introduced in the 2017 Session of the Virginia General Assembly.
Representatives from the Virginia Trial Lawyers Association, the Medical Society of Virginia, the Virginia Hospital and Healthcare Association, the Virginia Health Care Association and Cios® held numerous stakeholder meetings over the summer of 2016 and reached agreement on consensus legislation. The legislation was introduced in the form of HB 1689 by Habeeb in the 2017 session and passed without a negative vote. It has been signed Gov. Terry McAuliffe and is effective July 1, 2017.
The legislation addresses requests for medical records maintained in paper format and electronic format; addresses charges for X-rays; establishes new rules of the road for conduct; and revises penalties for noncompliance.
Paper medical records
The legislation retains the current fee schedule for paper copies as set forth in Va Code § 8.01-413. Providers may charge $.50 per page for the first 50 pages and $.25 per page thereafter, plus a search and handling fee not to exceed $20 plus postage and shipping. The only change was an increase in the search and handling fee from $10 to $20.
Electronic medical records
For medical records maintained electronically, a fee schedule is established at $.37 per page for the first 50 pages and $.18 per page thereafter. Providers may charge a search and handling fee not to exceed $20 plus postage and shipping.
The legislation also establishes a total cap on the cost of producing electronic records of $150. This cap will remain from July 1, 2017, through July 1, 2021, when the cap will be increased automatically to $160. Of note, the total cap does not apply to records maintained in paper format. When a portion of medical records are maintained in paper format and other portions of medical records are maintained in electronic format, the respective rates above apply.
Fee schedule for X-rays
Va Code § 8.01-413 does not currently have a fee schedule for x-rays. HB 1689 creates a fee schedule for X-ray series or studies maintained in electronic format at a rate of $25 per series or study, plus a search and handling fee of $10 plus postage and shipping.
When X-rays are requested to be produced in hard copy or when a healthcare provider does not maintain X-ray series or studies in electronic format or have the capacity to produce such X-rays in electronic format, a healthcare provider may charge a reasonable fee and may include a search and handling fee, not to exceed $10 and the actual cost of supplies and labor involved in complying with the request, plus postage and shipping. Note the search and handling fee for X-ray requests differs from the requests for medical records.
Rules of conduct
The legislation also imposes new rules of conduct on healthcare providers. First, providers have a duty to advise patients or their attorneys of the most cost effective way to receive a response to a records request. Second, a provider may not withhold production due to lack of payment for that production or prior productions on the part of patient’s counsel.
The legislation creates consistency between the response timeframes set forth in Va Code § 8.01-413 and Virginia’s privacy statute set forth in Va Code § 32.1-127.1:03. Specifically, a provider will have 30 days to respond to a request for records by the patient or patient’s attorney.1 If a healthcare provider cannot respond to a request within the 30 day period, HB 1689 imposes a statutory duty to inform the requester of the reason for the inability to respond within the required timeframe.
Revision of penalties
The legislation also revises the current penalty provision in Va Code § 8.01-413. Current law provides that a healthcare provider who is found to have willfully or arbitrarily refused to respond to a records request or who imposed excessive charges may be subject to an award by the court of damages for all expenses, including reasonable attorneys’ fees.
HB 1689 revises this section to provide that a healthcare provider who willfully refuses to comply with the request, either by “failing over the previous six-month to respond to a second of subsequent written request, properly submitted to the healthcare provider in writing with complete required information, without good cause. . .” or by imposing excessive charges may find the court entering an award against them to refund fees, if payment has been made for such charges, in addition to an award of reasonable attorney fees. In addition, the legislation provides that if the court finds a healthcare provider does not produce the records of any reason other than compliance with Virginia’s privacy statute or an inability to retrieve or access records as communicated to the requester, then the requester or party who issued the subpoena “shall be entitled to a rebuttal or resumption that expenses and attorney fees related to the failure to produce such records or paper shall be awarded by the court.”2
Healthcare providers should familiarize their staff members who handle medical record requests with these new statutory requirements in order to be prepared for a seamless implementation on July 1, 2017. When calculating the amount to charge for a request, take caution to differentiate requests by patients versus requests by attorneys and insurance companies.
- Scott Johnson practices law with Hancock Daniel Johnson & Nagle at the firm’s Richmond office.
1 Requests by patients for a copy of their medical record to be provided to them are governed by the “reasonable cost-based fee” as set forth in Section J of the Va Code § 32.1-127.1:03.
2 Va. Code § 8.01-413.C