We just got a bill for medical records from UTMB on a capital case. We often request such records when gearing up to close out the case, but this is the first time we've ever gotten a bill (that I can find out about). Generally, when we subpoena records from folks, there is no billing allowed. But UTMB says they have some sort of agreement with TDCJ. Anyone else run into this?

Is this not covered in the magnificent new book on HIPPA, published by TDCAA and authored by Markus Kypreos? Markus, can you update us?

The Privacy Rule permits covered entities to charge "reasonable, cost-based fees" for providing copies of PHI to individuals or their personal representatives. According to the Privacy Rule, fees for copies of medical records can only include the costs for: (1) copying, including the cost for supplies for and labor of copying; (2) postage if the individual has requested that the information be mailed; and (3) preparing an explanation or summary of the PHI, only if agreed to by the individual as required if the individual requested a summary or explanation instead of records. 45 CFR � 164.524(c)(4).

In the Preamble to the Privacy Rule issued on December 28, 2000 (the "Preamble"), the U.S. Department of Health and Human Services ("HHS") clarified that copying fees are to be reasonable and based upon the costs of making the copies, including but not limited to labor and supply costs (examples included in the Preamble are costs of paper for hard copies and the cost of a disk for electronic copies supplied on a computer disk). Furthermore, covered entities may not charge any fees for retrieving or handling the information, or for processing the request for copies. The Privacy Rule does not provide a maximum fee, including a per-page or per-record maximum, so depending upon the length of the record, the total fees could be quite high.

I know it's in response to a grand jury subpoena, but I think federal law trumps here. Just my opinion, though. I will keep looking for a different answer...

When I have a problem like this I refuse copies and require the custodian of records to appear at Grand Jury. I have her/him sit in the hall for at least half a day, then I make my own copies of the records. They never mention a bill after that. Their employee's time is worth much more than any silly bill!

Try giving a copy of JC-0181 to those who try to bill for production of evidentiary copies in a criminal case(relates to financial records, but same policy issues would apply). The link is:

http://www.oag.state.tx.us/opinions/op49cornyn/jc-0181.htm

From the opinion:

"There is a strong public policy in favor of supplying information in connection with a criminal investigation, even though this duty may be financially burdensome to the individual. See Hurtado, 410 U.S. at 589; Pittsburgh Nat'l Bank, 771 F.2d at 76; see generally Andino v. State, 645 S.W.2d 615 (Tex. App.-Austin 1983, no writ) (duty of witness to give testimony)."

The AG opinion is what we normally throw at these folks. What seems strange here is the State has an agreement with the State to pay for the records . . . While federal statuory law requires Feds to pay for this stuff, I don't believe a federal regulation can require the State to do so. Can it? The State is not an individual or an individual's representative.

[This message was edited by John Rolater on 04-19-06 at .]

John, I'll post a cite when I get to the office in the morning. I THINK I have a case that is applicable to your situation.

A grand jury subpoena for documents is normally considered an order to deliver the originals. Now, the hospital can't charge for complying with such a subpoena, any more than anyone can charge for delivering original documents.

And, for the convenience of the hospital, we permit the hospital to deliver copies of the records, along with an affidavit that saves the custodian from appearing at trial to testify. Seems like a fair arrangement.

As mentioned above, when a hospital lawyer demands payment, we simply ask the custodian to re-appear with the originals. If pressed, I suppose we could make the copy of the originals provided by the hospital and ask the custodian to come back again for the trial.

I do not regard federal regulations that set up standards for federal entities to control how a grand jury handles its business. [Markus, aren't you glad I dragged you into this?]

I agree with John and A. Diamond.

A.G. Opinion JC-0181 would seem to be the best argument for why you wouldn't have to pay, but just to be sure, I've got a call out to the Department of Health and Human Services, not that they will have a definitive answer.

Mark and John are also correct in that the best way to avoid payment or non-complaince is to threaten to call the custodian of records to appear and that usually ends the discussion.

As for the K between UTMB and TDCJ, I have no idea. I would love to see the K and the terms of what TDCJ has to pay for under it. I would also like to hear UTMB's explanation to you, John.

JR, what I have is the AG opinion also. It was so long ago when the issue arose that I had placed the opinion in a folder appropriately entitled and had forgotten whether it was case law or what.

I talked with HHS and the Office of Civil Rights in Dallas. The problem with my citation above, 45 CFR 164.524(c), is that it only applies to individuals and not to government entities or other agencies.

The bottom line is that the hospital can't charge for copies in response to a grand jury subpoena or any other law enforcement request for that matter under HIPAA.

Indicentally, there are also two typos on page 42 of my book, so add that to my list of errors.

But if TDCJ made an agreement with UTMB, does that override the normal policy of no payment?

Don't mean to be flip, but if they say the reason you have to pay is because they have a deal with TDCJ, I don't see how that binds anyone but TDCJ.

Ok, maybe I did mean to be flip.

Keep flipping!

Is UTMB's agreement regarding the medical records concerning inmates in TDCJ and their medical treatment?

So an agreement by the State with one part of the State is not binding on another part of the State? What does the civil chief think of that? this job makes me dizzy.