Under section 54(10) of the Personal Health Information Protection Act (PHIPA), a health sector provider may charge a fee for responding to a person's access request if it first gives the person an estimate. Section 54(11) provides that the amount of the fee shall not exceed the prescribed amount or "the amount of reasonable cost recovery", if no amount is prescribed. However the government has never prescribed an amount so that, until recently, there was little guidance as to what a health service provider could charge for a copy of a patient's record.
THE IPC'S INTERPRETATION OF WHAT AMOUNTS TO "REASONABLE COST RECOVERY"
The IPC's Order HO-009 provides some guidance in this regard. In this case, the patient made a complaint regarding the $125 fee charged by her physician for providing access to 34 pages of psychological therapy notes. The IPC found that this fee exceeded the amount of reasonable cost recovery and reduced it to $33.50. To avoid creating a financial barrier or impediment to access, the IPC interpreted the words "reasonable cost recovery" as entitling health sector providers to recover something less than the actual or full costs associated with responding to access requests.
The IPC reduced the fee to $33.50 on a basis that permits a health sector provider to charge $30 for photocopying or printing the first 20 pages, and 25 cents per page for every additional page. The set fee of $30 not only covered the cost of photocopying and printing the first 20 pages but also covered the following costs:
- receipt and clarification, if necessary, of a request for a record
- providing a fee estimate
- locating and retrieving the record
- reviewing the contents of the records for 15 minutes to determine if the record contains information to which access may be refused
- preparing a response letter to the individual
- the cost of faxing a copy of the record to a fax number in Ontario or mailing a copy of the record by ordinary mail to an address in Canada.
COMMENT
Order HO-009 provides health sector providers with welcome guidance in determining what fee to charge where the requests involve a limited number of records of personal health information.
At the same time, it may not allow for a "reasonable cost of recovery" where the record is voluminous, in multiple forms and where portions are offsite and located in a records management facility. Therefore, health sector providers may want to develop frameworks allowing them to both determine and reduce the costs of responding to access requests.
PRACTICAL TIPS
Health service providers will need to continue improving processes for responding to access requests by:
- Developing frameworks for estimating and determining appropriate fees.
- Exploring means of reducing costs for searching for and within records, including the implementation of records management techniques and software.
- Making appropriate changes to record-keeping of the time and resources involved in processing an access request.
Changes made to better determine and to reduce the costs of responding to requests for access made under PHIPA may also be applied to requests under the Freedom of Information and Protection of Privacy Act (FIPPA), which applies to hospitals since January 1, 2012.
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