By Dan Schulte, J.D.
MDA Legal Counsel
From the August 2013 issue of the Journal
Question: I have a patient owing me a large balance that I have unsuccessfully been attempting to collect. The patient is now requesting that I provide a copy of her records to another dentist. Can I require her to pay the copy fee in advance? Would it be illegal to have an office policy providing patients free copies of their records if their account is paid in full, charging only those patients who have past due balances for their copies?
Answer: Michigan’s Medical Records Access Act, MCL 333.26261 et seq., requires that patients and their authorized representatives (e.g., someone the patient has given written authorization to receive information, a personal representative or heir at law of a deceased patient, etc.) the right to examine or obtain a copy of their dental record as promptly as reasonably possible under the circumstances but generally not more than 30 days following the request. A patient or an authorized representative who makes a proper request is entitled to examine and copy his or her dental record. You may not refuse to comply with this requirement due to the patient having a past-due balance. The age of the past-due balance, its amount and other factors are irrelevant.
However, you may refuse to make the copy yourself and instead only make the record available for copying. This would require the patient to hire his own copying service to appear at your office and make the copy pursuant to a contractual arrangement directly between the patient and the copying service. Alternatively, Section 9 of the Medical Records Access Act allows you to refuse to copy all or part of the dental record for a patient until and unless the entire copying fee is paid up-front.
Therefore, under no circumstances are you required, nor should you allow a patient, to become further indebted to you as a result of complying with Michigan’s Medical Records Access Act.
Section 9 governs the amount of the fee that may be charged to make the copy. As of Feb. 8, 2013, the fees are as follows:
- initial fee — $23.32;
- first 20 pages — $1.16 per page;
- pages 21–50 — $.58 per page;
- pages 51+ — $.23 per page.
Section 9 does not require you to collect this copying fee. Instead, it provides that you may charge up to these amounts. Having an office policy whereby you do not charge patients for a copy of records who have paid in full would be legal even if you charge a copying fee to those that have an outstanding balance.
Question: I can only assume that a patient with an outstanding balance requesting a copy of her records is doing so because she is seeking treatment from another dentist. Can I inform the other dentist that this patient has not paid me for my services?
Answer: The best practice would be to not make such a disclosure. There has been no ruling that the existence of or amount of a patient’s past-due balance, standing alone, is “protected health information” such that HIPAA would prevent its disclosure. However, until such a ruling has been made it is simply not worth taking the chance that you may be making an illegal disclosure.
It is hoped that the new dentist will protect himself/herself from an uncollectible patient balance by insisting on being paid up-front, or obtaining a valid credit card to charge, or by other means.