Can a provider charge a medical records requestor a fee when there are no records? There is no clear answer to this question.

A client was served with a subpoena for medical records, but the patient in question did not have a record (i.e., had not been a patient). The provider’s ROI company responded with a letter stating that there was no patient and invoiced for a processing fee and postage. The lawyer responded that the fee was illegal under the section of R.S. 40:1165.1 which states that “the health care provider … shall not charge any other fee which is not specifically authorized by the provisions of this Subparagraph…” 

The statute provides that:

“… copies shall be provided upon payment of a reasonable copying charge…. If requested, the health care provider shall provide the requestor, at no extra charge, a certification page setting forth the extent of the completeness of records on file. In the event a hospital record is not complete, the copy of the records furnished shall indicate … the extent of completeness of the records…. The health care provider or person or legal entity providing records on behalf of the health care provider shall not charge any other fee which is not specifically authorized by the provisions of this Subparagraph, except for notary fees and fees for expedited requests as contracted by the parties.”

Is the charge prohibited? Does the statute prohibit charging a fee for certifying that there are no records? The statute is poorly written for this circumstance. It’s unclear, but there is an argument that it does prohibit the charge. The ROI contractor is a “person or legal entity providing records on behalf of the health care provider” and is therefore covered by this prohibition. On the other hand, since copies aren’t being provided, the statute arguably doesn’t apply at all. Any good lawyer could argue either side.

What should the provider/ROI contractor do? Is it worth fighting over? The problem with fighting with lawyers is that they don’t have to pay a lawyer to fight. They also like to fight with ROI contractors. In this case, the charge was only $25.57, so unless this is a common problem and the problem becomes frequent enough to be material, it simply isn’t worth the expense of fighting over it. My practical advice is to continue to bill requesters in these circumstances until they object (since it is arguably allowed), but to void the charges if and when anyone objects.