One of the biggest pet peeves I have working in this industry is receiving, in my opinion, ludicrous requests from practitioners relating to the cost of obtaining medical records in their custody. For example, just the other day I received a request from a neurologist for $200 for the luxury of obtaining eight – yes you read that right – eight pages of clinical notes and records.
Information is of utmost importance in insurance litigation and obtaining clinical notes and records, medical reports and other medical documentation is an everyday requirement. It is not very often that we see insurance companies pushing back on the costs associated with this necessary task. For the most part, it appears that when a practitioner or facility requests an amount for the purpose of obtaining records, insurers or their counsel usually pay it because the information contained in the records is so vital to the proper management of the claim. However, the importance of the records should not dictate an overall resignation to paying whatever the practitioners and/or facilities deem to be “reasonable costs” for providing them.
In 2010, the Information and Privacy Commissioner of Ontario issued a decision dealing with the cost of obtaining medical records (Order H0-009). In this instance, the complainant sought a determination that the fee of $125 for 34 pages of records being charged by one of her treating practitioners was unreasonable. The complaint was made pursuant to the Personal Health Information Protection Act (the “Act”).
Sections 54(10) and (11) of the Act set out the statutory entitlement of a Custodian to charge
a fee for access to records of personal health information. Those sections state:
(10) A health information custodian that makes a record of personal health
information or a part of it available to an individual under this Part or provides a
copy of it to an individual under clause (1) (a) may charge the individual a fee for
that purpose if the custodian first gives the individual an estimate of the fee.
(11) The amount of the fee shall not exceed the prescribed amount or the amount
of reasonable cost recovery, if no amount is prescribed.
The Commissioner reviewed submissions from the complainant, the responding doctor, the Ontario Medical Association and the Ontario Hospital Association. Ultimately, it was decided that he term “reasonable cost recovery” in section 54(11) of the Act should also be interpreted in light of the importance of the right of access. The right of access to one’s own records of personal information, including records of personal health information, is a cornerstone of fair information practices and a fundamental tenet of all privacy legislation. The right of an individual to access his or her records of personal health information is essential to the exercise of other statutory and common law rights, including the right of an individual to determine for himself or herself what shall or shall not be done with his or her own body; the right of an individual to “informational self-determination,” that is, the right of an individual to control the collection, use or disclosure of his or her personal health information; and the right of an individual to require the correction or amendment of personal health information about themselves.
Having regard to the importance of an individual’s right of access to his or her records of personal health information, it is, again, my opinion that any interpretation of the term “reasonable cost recovery” in section 54(11) of the Act that has the effect of imposing a financial barrier or acting as a deterrent to an individual exercising his or her right of access to records of personal health information must be avoided.
The doctor in the case at issue argued that “reasonable cost recovery” allows the practitioner to recover the actual or total cost incurred in providing the records but this was explicitly rejected by the Commissioner. The Commissioner instead relied on a Proposed Regulation from the Minister, that was publicly circulated but not adopted, which limited the amount recoverable by a Custodian to a flat fee of $30 dollars for the photocopying or printing of records up to the first 20 pages and then 25 cents per page thereafter. The flat fee includes an allotment of 15 minutes for review by the Custodian, which was found to be reasonable in this case for the 34 pages of documents.
This case has been cited by two 2015 decisions, London Health Sciences Centre (Re) (“London Health”) and Mackenzie Health (Re), which follow the HO-009 framework in terms of costs chargeable for medical documents.
London Health Sciences Centre (Re) specifically explained that the “reasonable cost recovery” based on the framework for “access” adopted in Order HO-009 should apply equally whether the request comes from individuals or third parties. This case went on to explain that, although HO-009 was decided in the context of an access request, its framework is fully applicable to both access and disclosure requests. This case also supported the statement in Order HO-009 that the Regulation proposed by the Minister on March 11, 2016 in The Ontario Gazette, which prescribed the maximum amount of fees that a health information custodian could charge an individual for access to records for personal health information, provides the best framework for determining the amount of reasonable cost recovery.
The March 11, 2016 Ontario Gazette sets out the same fee of $30 for the first 20 pages and 25 cents per page thereafter.
Applying the “reasonable cost recovery” found in these cases to our everyday requests for medical records could ultimately eliminate a substantial amount of costs to insurers. Using my previous example, instead of paying $200 for the neurological clinical notes and records as requested, we should agree to pay the flat fee of $30 and nothing more, saving $170 in one request. The insurance industry is expensive enough as it is; we should find ways to save some expenses whenever we can!