What could a Kentucky medical provider charge a patient for the first and later copies of medical records?

Plain-English summary

Kentucky's Attorney General interpreted KRS 422.317 to require hospitals and other providers to give a patient one complete copy of medical records without charge. A provider could not make that first copy conditional on a certification, retrieval, review, notary, or similar fee. It also could not charge for reproducing an electronically stored record on a CD when that was the patient's first free copy.

After the free copy, the AG said total charges for a later copy could not exceed $1 per page, whatever labels the provider used. For example, a certification charge had to fit inside that cap rather than being added on top. Delivery was different: a provider could charge for a requested mailing or fax if it made an alternative way to receive the first copy free of cost, or to receive a later copy within the per-page cap.

The patient's free copy remained the patient's right. The AG said a no-fault insurer could not force a claimant to request records or assign that free copy to the insurer. A patient could voluntarily direct the free copy to an attorney, insurer, or other representative by written request, and an agent acting with consent or, in some cases, a court order could request it on the patient's behalf.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a doctor charge a certification or retrieval fee for a patient's first copy? A: No. The AG said the first complete copy had to be available without any required additional charge, including certification or retrieval fees.

Q: What was the limit for a second copy? A: The opinion said total copying-related charges could not exceed $1 per page. Fees called “certification,” “notary,” or “retrieval” had to fit within that limit rather than increase it.

Q: Could a provider charge to mail the records? A: The AG said optional mailing or faxing could carry an extra delivery fee if the provider offered another way to obtain the first copy free, or a later copy within the $1-per-page maximum.

Q: Could an insurer take a patient's free copy for a no-fault claim? A: The insurer could not compel the patient to request records or assign the free copy. The patient could voluntarily direct the copy to the insurer, and an insurer acting as the patient's agent with consent could request it.

Background and statutory framework

KRS 422.317 provided a free first copy on a patient's written request and allowed a fee of no more than $1 per page for a second copy. The AG reviewed invoices imposing fees for certification, record retrieval, staff time, postage, and copies. It distinguished fees that defeated the statutory copy limits from optional delivery charges where a compliant alternative existed.

The opinion also formalized earlier guidance about patient agents and no-fault insurance. Under KRS 304.39-280(1)(b), a claimant who had obtained a medical report could be required to deliver it to a reparations obligor. The AG said that provision did not let the insurer force the claimant to obtain records or surrender the statutory right to a free copy.

Citations and references

• KRS 422.317: free first copy and maximum second-copy fee.
• KRS 304.39-280(1)(b): no-fault claimant's delivery of reports already obtained.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_ec98dbec-1c01-49a8-bfd2-c389b1d3d7ae/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_ec98dbec-1c01-49a8-bfd2-c389b1d3d7ae

Original opinion text

OAG 09-009

December 11, 2009

Subject: Entitlement of a patient to copies of his or her medi- cal records; ability to assign right to copies; appropri- ate charges levied by medical providers.

Requested by: Senator Ray S. Jones II

Written by: Tad Thomas
Assistant Deputy Attorney General

Syllabus: A patient is entitled to require a medical provider to produce one free copy of their medical records with- out charge. While an insurance company, acting as a reparations obligor, cannot require a patient to as- sign their free copy to the insurance company, a pa- tient may make this assignment to a party of their choosing.

Statutes construed: KRS 422.317

OAGs cited:

Opinion of the Attorney General

Senator Ray S. Jones, II, has requested an opinion of this office “describing and setting forth those charges permissible under KRS 422.317, if any.” In addition to this question, the Senator has also re- quested that we clarify other issues pertaining to the statute which were previously addressed by this office in informal guidance as op- posed to a formal opinion. OAG 09-009 Page 2

KRS 422.317 was originally enacted as part of the General As- sembly’s 1994 Health Care Reform legislation and appears to have been intended to enable patients to obtain valuable information re- garding their medical history and also to provide patients with the abil- ity to transfer health information from one doctor to another in the event a change in insurance, or other circumstances, required a pa- tient to change providers. The statute states in relevant part:

(1) Upon a patient's written request, a hospital licensed un- der KRS Chapter 216B or a health care provider shall pro- vide, without charge to the patient, a copy of the patient's medical record. A copying fee, not to exceed one dollar ($1) per page, may be charged by the health care provider for furnishing a second copy of the patient's medical record upon request either by the patient or the patient's attorney or the patient's authorized representative.

In his request, he asserts that since the enactment of this statute “health care providers, or for-profit companies providing records man- agement and copying services for the providers, have continually tried to circumvent the statute by requiring the payment of additional fees and charges while claiming to provide copies free of charge or for $1 per page.”

In support of this assertion the Senator has included redacted copies of invoices purportedly sent to patients who had requested records pursuant to KRS 422.317. In one invoice the healthcare provider, providing the “copying” free of charge, also included a $250.00 “certification fee” as well as a fee of $9.15 for postage. In an- other invoice a family practitioner wrote, “I will be more than happy to provide you the free copy of [redacted] medical records, but it is the policy of this office to first obtain reimbursement for my time in com- plying with this request.” The letter then included an itemized list of charges for “research and review of KRS 422.317,” “Review of records,” “Preparation of letter,” and “Postage and handling,” all at a rate of $150.00 per hour. Other invoices furnished to this office included charges for a “Certification form,” “Notary charge/Certification,” “Re- OAG 09-009 Page 3

trieval fees,” and postage charges. Still other invoices included charges for records of more than $1.00 per page. We are of the opin - ion that most of these charges violate the statute.

Like all advisory opinions of the Attorney General, this opinion at- tempts to determine what a court might do when presented with the same legal issues. While not binding on the courts, opinions of the At- torney General are generally given great weight. York v. Com., 815 S.W.2d 415, 417 (Ky.App. 1991) (“An Attorney General’s opinion is highly persuasive, but not binding on the recipient.”) Like a court, we must construe statutes to ascertain and give effect to the intent of the General Assembly. Beckham v. Board of Education 873 S.W.2d 575, 577 (Ky. 1994).

There are no published opinions interpreting KRS 422.317, how- ever the statute is clear on its face. It contemplates two scenarios when a patient might request a copy of their medical records. The first scenario arises when a patient requests copies for the first time and has not yet received his or her free copy. The second scenario arises when the patient requests an additional copy of records and a free copy has already been provided.

Under the first scenario, KRS 422.317 states that hospitals and other medical providers shall provide at least one copy of a patient’s medical records without charge. The use of the term “shall” indicates the requirement to provide medical records without charge is manda- tory. Combs v. Hubb Coal Corp., 934 S.W.2d 250 (1996). Therefore, in a situation where a patient is requesting their one free copy allowed under KRS 422.317, providers must make a complete copy of the records available in some manner without requiring additional pay- ments of any type.

While KRS 422.317 requires hospitals and physicians to “provide” one copy of the records to the patient without charge, it does not set forth the manner in which records are to be delivered. In our view, a provider must make some arrangement for a patient to receive copies of their medical records without cost, whether that is to make them OAG 09-009 Page 4

available for pickup, mailing, faxing or some other form of delivery. However, it does appear that the statute may allow a provider to charge additional fees for mailing, faxing or otherwise delivering the records to a patient if the patient is afforded some alternative method of delivery which does not include charges. For example, if a provider allows the patient an opportunity to pick up a copy of the records at the place where the treatment was rendered, but the patient or re- questing party asks for those copies to be mailed or faxed, the provider could charge for that additional service.

It is also our opinion that the statute assumes a medical provider will produce a complete copy of a patient’s medical record unless oth- erwise requested by the patient. Therefore, a provider may be re- quired by the patient to certify that the records being provided are in- deed a complete copy of those records kept in the regular course of business. Additional charges for ensuring that the records are indeed complete, such as those charges identified in invoices provided to this office which list charges for a “Certification fee,” “Certification form,” or “Notary charge/Certification,” are not permitted under the statute when a patient is requesting their free copy to which they are entitled.1

Furthermore, a provider is also prohibited from charging a patient for records that are kept in electronic format if those records have not been previously provided to the patient free of charge. Providers would be required to absorb the cost of reproducing a CD just as they would the cost of paper copies.

The second situation contemplated by the statute is a request for a copy of medical records after a free copy has already been obtained by the patient. Under this scenario providers are limited to charges which would equate to a maximum charge of $1.00 per page, regard- less of the nomenclature used to describe the charge. For example, if 1 We would also note that KRS 64.300 provides for the maximum amount charged by notaries public. It states: The fees of notaries public for the following services shall be not more than set out in the following schedule: Every attestation, protestation, or taking acknowledgment of any instrument of writing, and certifying the same under seal including, but not limited to, the notarization of votes of absentee voters - $0.50; Recording same in book to be kept for that purpose – $0.75; Each notice of protest - $0.25; Administering oath and certificate thereof - $0.20. KRS 64.300. OAG 09-009 Page 5

a provider copies 100 pages of records and makes them available to the patient or other requesting party, the maximum charge would be
$100.00. In that case, a health care provider is not permitted to charge additional fees for certification of records, notary or retrieval charges, if the total charges would exceed $1.00 per page. If the provider wanted to charge $25.00 for a certification fee, the maximum copy charge would be $75.00 so that the total per page charge does not exceed $1.00 as set forth in the statute. KRS 422.317 is explicit in this requirement. Here again though, because the statute does not re- quire a particular method of delivery, a provider could include addi- tional charges for postage or faxing, so long as one method of delivery is made available that would not exceed the $1.00 per page maximum allowed under the statute.

Before moving on, we would bring to the Senator’s attention the matter of Hardin County v. Valentine, 894 S.W.2d 151 (Ky.App. 1995). There, the Court first addressed the issue of whether medical records were “public records” under the Open Records Act. After finding that they are not, the Court addressed the issue of the reasonable copying charges allowed under KRS 422.305 to KRS 422.330. The Court pro- vided some guidance on its position regarding the maximum allowable charge.

[O]ne should not lose sight of the fact that what might be a reasonable copying fee for copying one or two pages may be totally unreasonable when applied to a 500-page single record. Except for the actual time it takes to make the du- plicates, all other charge items listed by the hospital are one-time costs.

We offer no other advice to Judge Cooper as to the manner in which he determines, on remand, the amount the Hospi- tal may charge for this expense. We would, however, note that since this appeal was filed, the legislature enacted KRS 422.317 in which it is stated that ‘[a] copying fee, not to exceed one dollar ($1) per page, may be charged by the health care provider for furnishing a second copy of the pa- OAG 09-009
Page 6

tient’s medical record upon request either by the patient or the patient’s attorney….’ We reiterate, however, that while $1.00 may be reasonable for one of a few pages, other considerations become relevant for copying large records.

Id. at 153.

Many of the charges included in the invoices provided in Senator Jones’ request include charges which are clearly in violation of the KRS 422.317. It is simply impermissible to require a patient to pay for time a physician spends preparing a letter or reviewing the statute before that patient can obtain the free copy of the records he or she is clearly entitled to by that same statute.

As stated above, Senator Jones has also requested that this office issue as formal opinions, guidance related to KRS 422.317 previously issued in informal correspondence. We have done so here.

On June 30, 2008, we were presented with the question of whether an insurance company, serving as a reparations obligor under Kentucky’s No-Fault statutes, could obtain the free copy of medical records belonging to the patient under KRS 422.317. We held that it could not.

KRS 304.39-280(1)(b) requires an insurance claimant to deliver to a reparations obligor a copy of any medical report he or she obtains at any time. A reparations obligor is an insurance company providing benefits to an insured individual under Kentucky’s “no-fault” insurance statutes. However, in Kentucky Farm Bureau Mutual Insurance Com- pany v. Roberts, 603 S.W.2d 498 (Ky.App. 1980), the court held that the injured party had no duty to “search out” the reports or have them pre- pared. Furthermore, KRS 304.39-280(2) states, “any person other than the claimant providing information under this section may charge the person requesting the information for the reasonable cost of providing it.” OAG 09-009 Page 7

As we stated in our June 30, 2008 correspondence, Courts will ex- amine the policy reasons behind the enactment of a statute when in- terpreting its meaning. Hiler v. Brown, 177 F.3d 542 (1999). When ex- amining these statutes, the policy reasons behind the General Assem- bly’s enactment of those statutes and the holding in Roberts, we found that an insurer “cannot require a claimant to use their free copy for the purpose of having their claims paid under the reparations act since the court has ruled it is not the responsibility of the injured party and that was not the intent of the General Assembly when enacting the statute.”

We reiterate that opinion here. If a claimant obtains a copy of their medical records under KRS 422.317 or a report from their medical provider, a reparations obligor could require the patient to provide a copy of those records to it pursuant to KRS 304.39-280(1)(b). How- ever, the reparations obligor cannot require the patient to request the records or compel the patient to assign, to the carrier, his or her right to a free copy under KRS 422.317.

We further expanded upon that statement in our February 17, 2009, correspondence when we were asked if the previously issued let- ter was intended to mean that attorneys were not permitted to request a free copy of medical records on behalf of their clients. We clarified our previous statements by saying;

Our informal opinion of June 30, 2008, should not be con- strued as a bar preventing attorneys from obtaining a free copy of medical records on behalf of their clients pursuant to KRS 422.317.

As you are aware, the statute provides that upon a pa- tient’s written request, a hospital or health care provider is required to provide one free copy of the patient’s medical record. Our June 30, 2008, informal opinion merely sug- gested that an insurance carrier, without the written con- sent of the insured, is not entitled to a free copy of the medical records.
OAG 09-009
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We are of the opinion that there is nothing precluding a pa- tient from making a written request to a hospital or health care provider directing that the statutorily required free copy be directed to the patient’s attorney or other repre- sentative. We are also of the opinion that a free copy could be directed to the insurance carrier upon written request by the patient; however, the insurance carrier cannot re- quire the patient to make this assignment as discussed in our June 30, 2008, letter.

In short, KRS 422.317 directs a hospital or health care provider to provide a free copy of the patient’s medical records to the patient. The patient may, by written re- quest, direct release of this information to his or her attor- ney or authorized representative.

Again, we reiterate the opinions of this prior informal guidance here. KRS 422.317 clearly provides a patient the right to obtain a free copy of their medical records. It does not preclude someone, acting as the agent for a patient, from asserting that patient’s rights under the statute, provided they have the consent of the patient or, in some cases, a court order. For instance, in some cases a patient may be in- capacitated and unable to make a request for records on his own be- half. It would be contrary to public policy and common sense to say that individuals acting as powers of attorney, attorneys-at-law or attor- neys-in-fact, could not request a copy of medical records in the course and scope of their responsibilities to that patient.

Again, the original intent of this statute appears to have been to provide a patient with the ability to transfer their medical records from one provider to another in the event a change of providers was neces- sary. Because the statute does not limit who may act on the patient’s behalf, we conclude that any agent of the patient, acting with the pa- tient’s consent, or in some cases by order of a court, could request a free copy of the records under KRS 422.317 regardless of whether the requesting agent is an attorney, an insurance company, someone act- OAG 09-009 Page 9

ing as power of attorney, or even in some cases, another medical provider.

JACK CONWAY
ATTORNEY GENERAL

Tad Thomas
Assistant Deputy Attorney General