Pabrai Blog on Individual Access to PHI (HITECH NPRM)

Under the proposed HITECH NPRM, if a covered entity maintains PHI electronically and the recipient requests copies of their PHI in an electronic format, the covered entity must provide the information in the electronic format requested by the individual if readily producible in that format, or, if not, in a different electronic format agreed to by the covered entity and the individual.

Costs for Electronic Requests of PHI
If the covered entity provides an individual with electronic access to PHI, the proposed rule would only allow the covered entity to charge the costs of labor associated with the preparation of the request.

The proposed rule clarifies the labor and supply costs applicable to preparation of electronic requests vs. paper requests. Labor costs to produce an electronic copy involve the cost of reviewing and preparing the copy. Supplies for an electronic copy apply only to the cost of the media, if applicable, for providing the information to the individual. If the individual provides the media (e.g., a CD or flash drive), there would be no cost for the media. Similarly, if the information is transmitted via e-mail or some other electronic mode, there would be no charge for media.

Format & Delivery
Both the current and proposed rules continue to permit the covered entity and individual to negotiate over the format and delivery of PHI. By emphasizing the provision of PHI electronically, the proposed rule may lower costs because postage costs are eliminated or reduced and labor and supply costs are significantly reduced. Thus, there may be some savings that result from the greater use of EPHI.