Request By:
Senator Ray S. Jones II
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Tad Thomas, Assistant Deputy Attorney General
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 requested that we clarify other issues pertaining to the statute which were previously addressed by this office in informal guidance as opposed to a formal opinion.
KRS 422.317 was originally enacted as part of the General Assembly's 1994 Health Care Reform legislation and appears to have been intended to enable patients to obtain valuable information regarding their medical history and also to provide patients with the ability to transfer health information from one doctor to another in the event a change in insurance, or other circumstances, required a patient to change providers. The statute states in relevant part:
(1) Upon a patient's written request, a hospital licensed under KRS Chapter 216B or a health care provider shall provide, 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 management 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 another 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 complying 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, " "Retrieval fees," and postage charges. Still other invoices included charges for records of more than $ 1.00 per page. We are of the opinion that most of these charges violate the statute.
Like all advisory opinions of the Attorney General, this opinion attempts to determine what a court might do when presented with the same legal issues. While not binding on the courts, opinions of the Attorney 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, however 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 mandatory.
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 payments 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 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 requesting 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 otherwise requested by the patient. Therefore, a provider may be required by the patient to certify that the records being provided are indeed 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, regardless of the nomenclature used to describe the charge. For example, if 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 require a particular method of delivery, a provider could include additional 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 provided 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 duplicates, 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 Hospital 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 patient'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 Company 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 prepared. 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."
As we stated in our June 30, 2008 correspondence, Courts will examine the policy reasons behind the enactment of a statute when interpreting its meaning.
Hiler v. Brown, 177 F.3d 542 (1999). When examining these statutes, the policy reasons behind the General Assembly'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). However, 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 letter 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 construed 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 patient'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 suggested that an insurance carrier, without the written consent of the insured, is not entitled to a free copy of the medical records.
We are of the opinion that there is nothing precluding a patient 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 representative. 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 require 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 request, direct release of this information to his or her attorney 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 incapacitated and unable to make a request for records on his own behalf. It would be contrary to public policy and common sense to say that individuals acting as powers of attorney, attorneys-at-law or attorneys-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 necessary. 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 patient'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 acting as power of attorney, or even in some cases, another medical provider.
Footnotes
Footnotes
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.