Ciox Case Changes the HIPAA Rules on Patient Rate Caps for Access to Health Records… Which Can Be Very Confusing in Wisconsin!

The Office for Civil Rights (OCR) issued an Important Notice Regarding Individuals' Right of Access to Health Records on January 29, 2020. We are so grateful for the clarification that it is important—we would not want to read the unimportant notices! The bottom line is that due to a federal district court ruling in Ciox Health v. Azar et.al No. 18-CV-00040 (D.D.C. January 23, 2020), the Health Insurance Portability and Accountability Act (HIPAA) fee caps on what providers can charge to patients for access to their medical records do not apply when the records are given to a third party rather than to the patient directly. Beware, however, as to state limitations on such fees. The HIPAA fee caps for patient access remain in place.

The Ciox ruling vacated and declared unlawful the application of patient rates to third parties to the extent stated in HHS’s expansion of The Health Information Technology for Economic and Clinical Health (HITECH) Act provision and in subsequent OCR guidance issued in 2016. The 2016 OCR guidance stated that the limits on access fees would apply to all patient requests (including a flat maximum of $6.50 per patient record), even where the patient requests directed the delivery of the records to third parties. The 2016 guidance also broke down which costs may be used in calculating the rates that would be charged to patients, and warned against attempting to circumvent these rates. The OCR then announced an initiative to vigorously enforce these access rights and started right in with pursuing penalties against providers violating the patient rate rules.

The OCR had issued Frequently Asked Questions interpreting 45 C.F.R. § 164.524, which now bears a prominent disclaimer that it is only effective to the extent it is not inconsistent with the Ciox order, rendering it…well…less helpful (to anyone) than it might have been prior to Ciox.

Note that state law still applies. In Wisconsin, that can require quite a bit of math in determining copy charges in light of state law (Wis. Stat. § 146.83 and recent clarifying case law). The Wisconsin Supreme Court ultimately concluded that where the patient had completed an authorization form directing delivery of records to the patient's attorney, that attorney was a “person authorized in writing by the patient” to receive copies of the records.

For more information on how these rule changes may affect you or your business, contact your Quarles & Brady attorney or:

• Sarah E. Coyne: (608) 283-2435 / sarah.coyne@quarles.com
• Meghan C. O'Connor: (414) 277-5423 / meghan.oconnor@quarles.com
• Rachel L. Dykema: (608) 283-2628 / rachel.dykema@quarles.com