May a covered health care provider charge a fee under HIPAA for individuals to access the PHI that is available through the provider’s EHR technology that has been certified as being capable of making the PHI accessible?
No. The HIPAA Privacy Rule at 45 CFR 164.524(c)(4) permits a covered entity to charge a reasonable, cost-based fee that covers only certain limited labor, supply, and postage costs that may apply in providing an individual with a copy of PHI in the form and format requested or agreed to by the individual. Where an individual requests or agrees to access her PHI available through the View, Download, and Transmit functionality of the CEHRT, we believe there are no labor costs and no costs for supplies to enable such access. Thus, a covered health care provider cannot charge an individual a fee when it fulfills an individual’s HIPAA access request using the View, Download, and Transmit functionality of the provider’s CEHRT.