1     
PATIENT MEDICAL RECORD ACCESS AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: James A. Dunnigan

5     
Senate Sponsor: Michael K. McKell

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the fee a person may charge for providing medical records if the
10     medical records are not provided in a certain amount of time.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     modifies the fee an entity may charge for providing medical records if the medical
15     records are not provided in a certain amount of time;
16          ▸     requires the Division of Professional Licensing to maintain an index of third party
17     services that provide medical records on behalf of health care providers; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          78B-5-618, as last amended by Laws of Utah 2022, Chapter 327
26     

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 78B-5-618 is amended to read:
29          78B-5-618. Patient access to medical records -- Third-party access to medical
30     records -- Medical records services -- Fees -- Standard form.
31          (1) As used in this section:
32          (a) "Force majeure event" means an event or circumstance beyond the control of the
33     health care provider or the health care provider's third-party service, including fires, floods,
34     earthquakes, acts of God, lockouts, ransomware, or strikes.
35          (b) "Health care provider" means the same as that term is defined in Section
36     78B-3-403.
37          (c) "History of poor payment" means three or more invoices where payment is more
38     than 30 days late within a 12-month period.
39          [(b)] (d) "Indigent individual" means an individual whose household income is at or
40     below 100% of the federal poverty level as defined in Section 26-18-3.9.
41          [(c)] (e) "Inflation" means the unadjusted Consumer Price Index, as published by the
42     Bureau of Labor Statistics of the United States Department of Labor, that measures the average
43     changes in prices of goods and services purchased by urban wage earners and clerical workers.
44          [(d)] (f) "Qualified claim or appeal" means a claim or appeal under any:
45          (i) provision of the Social Security Act as defined in Section 67-11-2; or
46          (ii) federal or state financial needs-based benefit program.
47          (g) "Third-party service" means a service that has entered into a contract with a health
48     care provider to provide patient records on behalf of a health care provider.
49          (2) Pursuant to Standards for Privacy of Individually Identifiable Health Information,
50     45 C.F.R., Parts 160 and 164, a patient or a patient's personal representative may inspect or
51     receive a copy of the patient's records from a health care provider when that health care
52     provider is governed by the provisions of 45 C.F.R., Parts 160 and 164.
53          (3) When a health care provider is not governed by Standards for Privacy of
54     Individually Identifiable Health Information, 45 C.F.R., Parts 160 and 164, a patient or a
55     patient's personal representative may inspect or receive a copy of the patient's records unless
56     access to the records is restricted by law or judicial order.
57          (4) A health care provider who provides a paper or electronic copy of a patient's
58     records to the patient or the patient's personal representative:
59          (a) shall provide the copy within the deadlines required by the Health Insurance
60     Portability and Accountability Act of 1996, Administrative Simplification rule, 45 C.F.R. Sec.
61     164.524(b); and
62          (b) may charge a reasonable cost-based fee provided that the fee includes only the cost
63     of:
64          (i) copying, including the cost of supplies for and labor of copying; and
65          (ii) postage, when the patient or patient's personal representative has requested the copy
66     be mailed.
67          (5) (a) Except for records provided [by a health care provider] under Section 26-1-37, a
68     health care provider [who] or a health care provider's third-party service that provides a copy of
69     a patient's records to a patient's attorney, legal representative, or other third party authorized to
70     receive records:
71          [(a)] (i) shall provide the copy within 30 days after receipt of notice; [and]
72          [(b)] (ii) may charge a reasonable fee for paper or electronic copies, but may not
73     exceed the following rates:
74          [(i)] (A) $30 per request for locating a patient's records;
75          [(ii)] (B) reproduction charges may not exceed 53 cents per page for the first 40 pages
76     and 32 cents per page for each additional page;
77          [(iii)] (C) the cost of postage when the requester has requested the copy be mailed;
78          [(iv)] (D) if requested, the [health care provider] person fulfilling the request will
79     certify the record as a duplicate of the original for a fee of $20; and
80          [(v)] (E) any sales tax owed under Title 59, Chapter 12, Sales and Use Tax Act[.]; and
81          (iii) may charge an expedition fee of $20 if:
82          (A) the requester's notice explicitly requests an expedited response; and
83          (B) the person fulfilling the request postmarks or otherwise makes the record available
84     electronically within 15 days from the day the person fulfilling the request receives notice of
85     the request.
86          (b) Notwithstanding the provisions of Subsection (5)(a)(ii) and subject to Subsection
87     (5)(c), in the event the requested records are not postmarked or otherwise made available
88     electronically by the person fulfilling the request:
89          (i) within 30 days after the day on which notice is received by the person fulfilling the
90     request, the person fulfilling the request shall waive 50% of the fee; or
91          (ii) within 60 days after the day on which notice is received by the person fulfilling the
92     request, the person fulfilling the request shall provide the requested records free of charge to
93     the requester.
94          (c) Performance under Subsection (5)(b) shall be extended in accordance with
95     Subsection (5)(d) if the person fulfilling the request notifies the requester of:
96          (i) the occurrence of a force majeure event within 10 days from the day:
97          (A) the force majeure event occurs; or
98          (B) the person fulfilling the request receives notice of the request; and
99          (ii) the termination of the force majeure event within 10 days from the day the force
100     majeure event terminates.
101          (d) In accordance with Subsection (5)(c), for a force majeure event:
102          (i) that lasts less than eight days, the person fulfilling the request shall, if the records
103     are not postmarked or otherwise made available electronically within:
104          (A) 30 days of the day the force majeure event ends, waive 50% of the fee for
105     providing the records; and
106          (B) 60 days of the day the force majeure event ends, waive the entire fee for providing
107     the records;
108          (ii) that lasts at least eight days but less than 30 days, the person fulfilling the request
109     shall, if the records are not postmarked or otherwise made available electronically within:
110          (A) 60 days of the day the force majeure event ends, waive 50% of the fee for
111     providing the records; and
112          (B) 90 days of the day the force majeure event ends, waive the entire fee for providing
113     the records; and
114          (iii) that lasts more than 30 days, the person fulfilling the request shall, if the records
115     are not postmarked or otherwise made available electronically within:
116          (A) 90 days of the day the force majeure event ends, waive 50% of the fee for
117     providing the records; and
118          (B) 120 days of the day the force majeure event ends, waive the entire fee for providing
119     the records.
120          (e) (i) A third-party service may require prepayment before sending records for a
121     request under this Subsection (5) if the third-party service:
122          (A) determines the requester has a history of poor payment; and
123          (B) notifies the requester, within the time periods described in Subsection (5)(b)(i) and
124     (ii), that the records will be sent as soon as the request has been prepaid.
125          (ii) The fee reductions described in Subsection (5)(d) do not apply if a third-party
126     service complies with Subsection (5)(e)(i).
127          (f) If a third-party service does not possess or have access to the data necessary to
128     fulfill a request, the third-party service shall notify:
129          (i) the requester that the request cannot be fulfilled; and
130          (ii) state the reasons for the third-party service's inability to fulfill the request within 30
131     days from the day on which the request is received by the third-party service.
132          (g) A patient's attorney, legal representative, or other third party authorized to receive
133     records may request patient records directly from a third-party service.
134          [(6) Except for records provided under Section 26-1-37, a contracted third party service
135     that provides medical records, other than a health care provider under Subsections (4) and (5),
136     who provides a copy of a patient's records to a patient's attorney, legal representative, or other
137     third party authorized to receive records:]
138          [(a) shall provide the copy within 30 days after the request; and]
139          [(b) may charge a reasonable fee for paper or electronic copies, but may not exceed the
140     following rates:]
141          [(i) $30 per request for locating a patient's records;]
142          [(ii) reproduction charges may not exceed 53 cents per page for the first 40 pages and
143     32 cents per page for each additional page;]
144          [(iii) the cost of postage when the requester has requested the copy be mailed;]
145          [(iv) if requested, the health care provider or the health care provider's contracted third
146     party service will certify the record as a duplicate of the original for a fee of $20; and]
147          [(v) any sales tax owed under Title 59, Chapter 12, Sales and Use Tax Act.]
148          (6) (a) A health care provider that contracts with a third-party service to fulfill the
149     health care provider's medical record requests shall file a statement with the Division of
150     Professional Licensing containing:
151          (i) the name of the third-party service;
152          (ii) the phone number of the third-party service; and
153          (iii) the fax number, email address, website portal address, if applicable, and mailing
154     address for the third-party service where medical record requests can be sent for fulfillment.
155          (b) A health care provider described in Subsection (6)(a) shall update the filing
156     described in Subsection (6)(a) as necessary to ensure that the information is accurate.
157          (c) The Division of Professional Licensing shall develop a form for a health care
158     provider to complete that provides the information required by Subsection (6)(a).
159          (d) The Division of Professional Licensing shall:
160          (i) maintain an index of statements described in Subsection (6)(a) arranged
161     alphabetically by entity; and
162          (ii) make the index available to the public electronically on the Division of
163     Professional Licensing's website.
164          (7) A health care provider or the health care provider's [contracted third party]
165     third-party service shall deliver the medical records in the electronic medium customarily used
166     by the [health care provider or the health care provider's contracted third party service] person
167     fulfilling the request or in a universally readable image such as portable document format:
168          (a) if the patient, patient's personal representative, or a third party authorized to receive
169     the records requests the records be delivered in an electronic medium; and
170          (b) the original medical record is readily producible in an electronic medium.
171          (8) (a) Except as provided in Subsections (8)(b) [and (c),] through (d), the per page fee
172     in Subsections (4)[, (5), and (6)] and (5) applies to medical records reproduced electronically or
173     on paper.
174          (b) The per page fee for producing a copy of records in an electronic medium shall be
175     50% of the per page fee otherwise provided in this section, regardless of whether the original
176     medical records are stored in electronic format.
177          (c) (i) A health care provider or a health care provider's [contracted third party]
178     third-party service shall deliver the medical records in the electronic medium customarily used
179     by the health care provider or the health care provider's [contracted third party] third-party
180     service or in a universally readable image, such as portable document format, if the patient,
181     patient's personal representative, patient's attorney, legal representative, or a third party
182     authorized to receive the records, requests the records be delivered in an electronic medium.
183          (ii) [An entity providing requested information] A person fulfilling the request under
184     Subsection (8)(c)(i):
185          (A) shall provide the requested information within 30 days; and
186          (B) may not charge a fee for the electronic copy that exceeds $150 regardless of the
187     number of pages and regardless of whether the original medical records are stored in electronic
188     format.
189          (d) Subject to Subsection (8)(e), in the event the requested records under Subsection
190     (8)(c)(i) are not postmarked or otherwise made available electronically by the person fulfilling
191     the request:
192          (i) within 30 days after the day notice is received by the person fulfilling the request,
193     the person fulfilling the request may not charge a fee for the electronic copy that exceeds $75
194     regardless of the number of pages and regardless of whether the original medical records are
195     stored in electronic format; or
196          (ii) within 60 days after the day notice is received by the person fulfilling the request,
197     the person fulfilling the request shall provide the requested records free of charge to the
198     requester.
199          (e) Performance under Subsection (8)(d) shall be extended in accordance with
200     Subsection (8)(f) if the person fulfilling the request notifies the requester of:
201          (i) the occurrence of a force majeure event within 10 days from the day:
202          (A) the force majeure event occurs; or
203          (B) the person fulfilling the request receives notice of the request; and
204          (ii) the termination of the force majeure event within 10 days from the day the force
205     majeure event terminates.
206          (f) In accordance with Subsection (8)(e), for a force majeure event:
207          (i) that lasts less than eight days, the person fulfilling the request, if the records are not
208     postmarked or otherwise made available electronically within:
209          (A) 30 days of the day the force majeure event ends, may not charge a fee for an
210     electronic copy that exceeds $75 regardless of the number of pages and regardless of whether
211     the original medical records are stored in electronic format; and
212          (B) 60 days of the day the force majeure event ends, shall waive the entire fee for
213     providing the records;
214          (ii) that lasts at least eight days but less than 30 days, the person fulfilling the request,
215     if the records are not postmarked or otherwise made available electronically within:
216          (A) 60 days of the day the force majeure event ends, may not charge a fee for an
217     electronic copy that exceeds $75 regardless of the number of pages and regardless of whether
218     the original medical records are stored in electronic format; and
219          (B) 90 days of the day the force majeure event ends, shall waive the entire fee for
220     providing the records; and
221          (iii) that lasts more than 30 days, the person fulfilling the request, if the records are not
222     postmarked or otherwise made available electronically within:
223          (A) 90 days of the day the force majeure event ends, may not charge a fee for an
224     electronic copy that exceeds $75 regardless of the number of pages and regardless of whether
225     the original medical records are stored in electronic format; and
226          (B) 120 days of the day the force majeure event ends, shall waive the entire fee for
227     providing the records.
228          (9) (a) On January 1 of each year, the state treasurer shall adjust the following fees for
229     inflation:
230          (i) the fee for providing patient's records under[:] Subsections (5)(a)(ii)(A) and (B); and
231          [(A) Subsections (5)(b)(i) through (ii); and]
232          [(B) Subsections (6)(b)(i) through (ii); and]
233          (ii) the maximum amount that may be charged for an electronic copy under Subsection
234     (8)(c)(ii)(B).
235          (b) On or before January 30 of each year, the state treasurer shall:
236          (i) certify the inflation-adjusted fees and maximum amounts calculated under this
237     section; and
238          (ii) notify the Administrative Office of the Courts of the information described in
239     Subsection (9)(b)(i) for posting on the court's website.
240          (10) Notwithstanding Subsections (4) through (6), if a request for a medical record is
241     accompanied by documentation of a qualified claim or appeal, a health care provider or the
242     health care provider's [contracted third party] third-party service:
243          (a) may not charge a fee for the first copy of the record for each date of service that is
244     necessary to support the qualified claim or appeal in each calendar year;
245          (b) for a second or subsequent copy in a calendar year of a date of service that is
246     necessary to support the qualified claim or appeal, may charge a reasonable fee that may not:
247          (i) exceed 60 cents per page for paper photocopies;
248          (ii) exceed a reasonable cost for copies of X-ray photographs and other health care
249     records produced by similar processes;
250          (iii) include an administrative fee or additional service fee related to the production of
251     the medical record; or
252          (iv) exceed the fee provisions for an electronic copy under Subsection (8)(c); and
253          (c) shall provide the health record within 30 days after the day on which the request is
254     received by the health care provider.
255          (11) (a) Except as otherwise provided in Subsections (4) through (6), a health care
256     provider or the health care provider's [contracted third party] third-party service shall waive all
257     fees under this section for an indigent individual.
258          (b) A health care provider or the health care provider's [contracted third party]
259     third-party service may require the indigent individual or the indigent individual's authorized
260     representative to provide proof that the individual is an indigent individual by executing an
261     affidavit.
262          (c) (i) An indigent individual that receives copies of a medical record at no charge
263     under this Subsection (11) is limited to one copy for each date of service for each health care
264     provider, or the health care provider's [contracted third party] third-party service, in each
265     calendar year.
266          (ii) Any request for additional copies in addition to the one copy allowed under
267     Subsection (11)(c) is subject to the fee provisions described in Subsection (10).
268          (12) By January 1, 2023, a health care provider and all of the health care provider's
269     contracted third party health related services shall accept a properly executed form described in
270     Title 26, Chapter 70, Standard Health Record Access Form.