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Do Indigent Persons Have To Pay For Medical Records in Michigan?

The public is generally aware that under HIPAA and other medical privacy laws, they are both entitled to privacy concerning their medical records and access to those records.  The issue arises when providers wish to charge for copying medical records requested by patients and former patients.  Michigan’s Medical Records Access Act, MCL § 333.26269 provides that “a health care provider, health facility, or medical records company shall waive all fees for a medically indigent individual.” MCL § 333.26269(e)(3).[1]

Two categories of individuals are usually indigent: those on public assistance and inmates.  The Act covers one category, but seems to specifically exclude the other.

The Act: Section 333.26269 covers the fee issue:

(1) Except as otherwise provided in this section, if a patient or his or her authorized representative makes a request for a copy of all or part of his or her medical record under section 5, the health care provider, health facility, or medical records company to which the request is directed may charge the patient or his or her authorized representative a fee that is not more than the following amounts:
(a) An initial fee of $20.00 per request for a copy of the record.
(b) Paper copies as follows:
(i) One dollar per page for the first 20 pages.
(ii) Fifty cents per page for pages 21 through 50.
(iii) Twenty cents for pages 51 and over.
(c) If the medical record is in some form or medium other than paper, the actual cost of preparing a duplicate.
(d) Any postage or shipping costs incurred by the health care provider, health facility, or medical records company in providing the copies.
(e) Any actual costs incurred by the health care provider, health facility, or medical records company in retrieving medical records that are 7 years old or older and not maintained or accessible on-site.
(2) A health care provider, health facility, or medical records company may refuse to retrieve or copy all or part of a medical record for a patient or his or her authorized representative until the applicable fee is paid.
(3) A health care provider, health facility, or medical records company shall not charge a fee for retrieving, copying, or mailing all or part of a medical record other than a fee allowed under subsection (1). Except as otherwise provided in subsection (4), a health care provider, health facility, or medical records company shall waive all fees for a medically indigent individual. The health care provider, health facility, or medical records company may require the patient or his or her authorized representative to provide proof that the patient is a recipient of assistance as described in this subsection.
(4) A medically indigent individual that receives copies of medical records at no charge under subsection (3) is limited to 1 set of copies per health care provider, health facility, or medical records company. Any additional requests for the same records from the same health care provider, health facility, or medical records company shall be subject to the fee provisions under subsection (1).
(5) Notwithstanding subsection (1), a health care provider, health facility, or medical records company shall not charge a patient an initial fee for his or her medical record.
(6) Beginning 2 years after the effective date of this act, the department of community health shall adjust on an annual basis the fees prescribed by subsection (1) by an amount determined by the state treasurer to reflect the cumulative annual percentage change in the Detroit consumer price index.  (Emphasis added)

Therefore, while medical providers can charge an initial fee, copying costs, postage costs, and costs of retrieving a record older than seven years from storage, the providers cannot charge a “medically indigent individual.”  The issue then becomes what is a “medically indigent individual” under the Act and Michigan law.

“Medically Indigent Individual”

Section 333.26263 provides definitions for the Act, and states:

(k)  “Medically indigent individual” means that term as defined in section 106 of the social welfare act, 1939 PA 280, MCL 400.106.

Indigent citizens

The Act states that “‘medically indigent individual’ means that term as defined in section 106 of the social welfare act.” MCL § 333.26263(k). And the Social Welfare Act defines a “medically indigent individual” as “[a]n individual receiving family independence program benefits or an individual receiving supplemental security income . . .” or an individual meeting a list of six specific requirements, having to do with eligibility issues such as income at the poverty level or supplemental security income.  However, subsection (b)(v) requires that “[t]he individual is not an inmate of a public institution except as a patient in a medical institution.” MCL § 400.106(b)(v) [2]  Thus non-inmates who are indigent and on public assistance qualify for free medical records.

Inmates

Since the Social Welfare Act specifically excludes individuals who are “an inmate of a public institution . . .” MCL § 400.106(b)(v), inmates clearly are not “medically indigent individuals” under  the Michigan’s Medical Records Access Act. Inmates, therefore, do not qualify for free medical records.

There are other options available for inmates in the Michigan Department of Corrections. Policy Directive 05.03.115 sets for the requirements for prison law libraries but does not provide for payment for copies or exhibits.[3] Policy Directive 05.03.116 concerns prisoners’ access to the courts, and provides:

(M) Prisoners shall be provided photocopying services to obtain copies of items needed for legal research. Prisoners also shall be provided photocopying services to obtain copies of documents in their possession, or available to them in the law library, which are necessary for the prisoner to file with a court or serve on a party to a lawsuit. Prisoners shall use the Legal Photocopy Disbursement Authorization form (CSJ-602) to request photocopying; the forms shall be available to prisoners in the housing unit and institutional law libraries. A fee of 10 cents shall be charged for each page copied.

(N) Prisoners who lack sufficient funds to pay for copies of documents in their possession, or available to them in the law library, which are necessary for the prisoner to file with the court or serve on a party to a lawsuit shall be loaned funds to pay for the copying. Funds shall not be loaned, however, for copying a document which can otherwise be reproduced by the prisoner, except if the document is notarized or was created for the prisoner through the Legal Writer Program and as otherwise required by court order for service of a federal lawsuit.

 (O) A prisoner may be required to present documentation (e.g., court rule, copy of the pleading) to show that requested copies are necessary. If the prisoner presents his/her personal legal materials, staff shall read only those portions that are necessary to determine whether the copies will be provided and, if applicable, whether funds will be loaned. If a loan is approved, it shall be considered an institutional debt and collected as set forth in PD 04.02.105 “Prisoner Funds.” (Emphasis added)

Therefore, there are provisions for indigent inmates to get loans to pay for necessary court copies. However, by the policy’s plain language, the sections of PD 05.03.116 applies only to items needed for legal research or “documents in [the prisoner’s] possession . . . which are necessary for the prisoner to file with a court or serve on a party to the lawsuit.” PD 05.03.116(M).

Pursuant to MDOC regulations, plaintiff may obtain a copy of his own prison medical records, as provided for in PD 03.04.108, ¶ S.[4] An individual also has a right to inspect and obtain copies of all his medical records under federal law (see 45 C.F.R. § 164.524) although it allows for costs to the medical provider,[5] and excludes inmates when security issues are raised:

(2) Unreviewable grounds for denial. A covered entity may deny an individual access without providing the individual an opportunity for review, in the following circumstances.

***

(ii) A covered entity that is a correctional institution or a covered health care provider acting under the direction of the correctional institution may deny, in whole or in part, an inmate’s request to obtain a copy of protected health information, if obtaining such copy would jeopardize the health, safety, security, custody, or rehabilitation of the individual or of other inmates, or the safety of any officer, employee, or other person at the correctional institution or responsible for the transporting of the inmate. (Emphasis added)

Discovery in General

Parties in civil litigation, whether indigent or not, generally cannot get copies of any discovery without paying a copying fee, whether it is medical records or other materials in the case.   Fed. R. Evid. 34 requires a party “to produce and permit the requesting party . . . to inspect, copy, test, or sample” documents; nothing in Rule 34 requires the producing party to provide copies.

The Courts have made it clear that “indigent civil litigants are not entitled to free copies but instead must bear their own litigation expenses.” Dujardine v. Mich. Dep’t of Corr., 2009 U.S. Dist. LEXIS 97006, 2009 WL 3401172 at *1 (W.D. Mich. Oct. 19, 2009) (collecting cases).  Also see, Aden v. Herrington, 2012 U.S. Dist. LEXIS 153392, 2 (S.D. Ohio Oct. 25, 2012).

Defendants are not obligated to fund the costs of plaintiff’s discovery. See Smith v. Yarrow, 78 Fed. Appx. 529, 544 (6th Cir. 2003). There is no constitutional or statutory requirement that the government or a defendant pay for an indigent prisoner’s discovery efforts. See Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir. 1983). The Courts find that because a plaintiff may obtain medical records as easily as a defendant, and because defendants are not obligated to fund plaintiff’s litigation efforts, it is not appropriate to compel defendants to produce back to plaintiff his own medical records. See, Mitchell v. Haviland, 2013 U.S. Dist. LEXIS 146979, 15 (E.D. Cal. Oct. 9, 2013); Smith v. Yarrow, 78 Fed. Appx. 529, 544 (6th Cir. 2003).  Indeed, other Circuits hold the same, as explained by Wivell v. Adams County Adult Corr. Facility, 2007 U.S. Dist. LEXIS 53847, 5 (M.D. Pa. July 25, 2007):

Second, it has been repeatedly recognized that prisoners have no right to free photocopying for use in lawsuits. Johnson v. Moore, 948 F. 2d 517, 521 (9th Cir. 1991) (“denial of free photocopying does not amount to a denial of access to the courts”); Harrell v. Keohane, 621 F. 2d 1059 (10th Cir. 1980); Jenkins v. Porfiro, Civil Action No. 3:CV-95-2048, slip op. at 1 (M.D. Pa. May 15, 1996) (Vanaskie, J.). It has also been held that there is no requirement that the government or a defendant has to pay for an indigent plaintiff’s discovery efforts. Smith v. Yarrow, 78 Fed. Appx. 529, 544 (6th Cir. 2003). Simply put, prison officials are not constitutionally required to relieve Wivell of reasonable payment for the photocopying of documents.

Summary

Michigan’s Medical Records Access Act, MCL § 333.26269 provides that “a health care provider, health facility, or medical records company shall waive all fees for a medically indigent individual.” MCL § 333.26269(e) (3).  While the Act covers indigent members of the public, inmates are expressly excluded under the Act. Thus, non-inmates who are indigent and on public assistance qualify for free copies of  medical records.  Under the MDOC’s policy’s plain language, the sections of PD 05.03.116 applies only to items needed for legal research or “documents in [the prisoner’s] possession . . . which are necessary for the prisoner to file with a court or serve on a party to the lawsuit.” PD 05.03.116(M). Pursuant to MDOC regulations, plaintiff may obtain a copy of his own prison medical records, as provide for in PD 03.04.108, ¶ S.  An individual also has a right to inspect and obtain copies of all his medical records under federal law, see 45 C.F.R. § 164.524, although it allows for costs to the medical provider, and excludes inmates when security issues are raised.  Finally, generally indigent individuals, whether inmates or not, are not entitled to free copies of their medical records or other discovery materials in civil litigation in Federal Court.

 


[1]  Section 333.26267 states the medical provider may not ask the reason for the request:  “A health care provider or health facility that receives a request for a medical record under section 5 shall not inquire as to the purpose of the request.”

[2] MCL §791.215 “Correctional facility” defined.  “As used in this act, ‘correctional facility’ means a facility or institution which is maintained and operated by the department.”

[3]   The Policy does provide for inmates to get copies of legal materials, but the inmates must pay for same.  Subsection F. states in pertinent part:  “If a prisoner requests the law librarian or designee to obtain an
item from another library, the librarian or designee shall submit the request to the other library as soon
as practicable after the request is received. Copies from other libraries become the property of the
prisoner and the prisoner is therefore responsible for the cost of those copies, including any required
postage; funds shall not be loaned for this purpose
.”  Subjection G: states: “Prisoners may request and receive copies of Michigan statutes that are not part of the law library collection through the main law library. The copies become the property of the prisoner and the prisoner is therefore responsible for the cost of those copies; funds shall not be loaned for this purpose.”  (Emphasis added)

[4] “S. A prisoner may receive copies of documents contained within his/her health record by making a
specific, written request to the appropriate health information manager or designee and paying the
required per-page fee, as set forth in OP 03.04.108-B ‘Prisoner Access to Medical Records’.”

[5] “If the individual requests a copy of the protected health information or agrees to a summary or explanation of such information, the covered entity may impose a reasonable, cost-based fee, provided that the fee includes only the cost of:
(i) Copying, including the cost of supplies for and labor of copying, the protected health information requested by the individual;
(ii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and
(iii) Preparing an explanation or summary of the protected health information, if agreed to by the individual as required by paragraph (c)(2)(ii) of this section.”