2.5 Responding to Records Requests: Rights, Refusals, Deadlines, and Fees

The right of access

Health and Safety Code § 123100 declares that anyone responsible for their own health care decisions has a right to complete information about their condition and care. § 123105 expressly lists dentists as "health care providers" covered by the access chapter. § 123110 gives the right to:

• Any adult patient.
• A minor patient, but only for records of care the minor could lawfully consent to.
• A patient's personal representative, such as a parent of a minor, guardian, conservator, health care agent, or executor.

The dentist may require reasonable verification of identity, but not in a way designed to delay compliance.

When you must share (K1052)

HIPAA's access rule (45 CFR § 164.524) allows up to 30 days, but California's shorter deadlines control.

Format (K1054): Under § 123110(b), provide copies in the form and format requested if they are readily producible. If records are electronic and the patient asks for an electronic copy, provide it electronically. Radiographs can be sent as image files, printed, or, under § 123110(c), sent as originals to the new dentist. Secure email, a patient portal, encrypted media, or mail all work. A patient may ask to receive records by unencrypted email after being warned of the risk.

Unpaid bills are not a reason to refuse

§ 123110(i) prohibits withholding records or summaries because of an unpaid bill. A dentist who willfully violates the access chapter commits unprofessional conduct under § 123110(h), and the patient may sue to enforce the right and recover attorney fees under § 123120. The ADA Code agrees: Advisory Opinion 1.B.1 says records beneficial to future treatment must be furnished "whether or not the patient's account is paid in full."

When you may not, or need not, share (K1051)

1. A minor's representative may not see records of care the minor lawfully consented to alone, such as sexual assault or STD care (§ 123115(a)(1), (a)(3)).
2. A minor's representative may be refused access when the provider determines it would harm the provider's relationship with the minor or the minor's physical safety or psychological well-being. The provider is liable only for bad-faith decisions (§ 123115(a)(2)).
3. Mental health records may be withheld from the patient only after documenting a substantial risk of significant harm, and must then be offered to a designated licensed professional (§ 123115(b)).
4. Third parties without an authorization, subpoena, court order, or other legal basis get nothing (Civil Code § 56.10; see Section 2.1).
5. Psychotherapy notes and information compiled for litigation have special HIPAA limits, though these rarely arise in dentistry.

Fees (K1053 and K1054)

§ 123110(j) allows a reasonable, cost-based fee that may include only:

• Labor for copying.
• Supplies for paper copies or portable electronic media.
• Postage, if mailing was requested.
• Preparing a summary or explanation, if the patient agreed.

Paper copies are capped at 25 cents per page, or 50 cents per page from microfilm. When original X-rays are sent to another provider under § 123110(c), the office may charge reasonable costs that do not exceed actual cost. Retrieval fees, "processing" surcharges, and fees conditioned on paying the treatment balance are not allowed.

Ethical duties that go beyond the statute

The ADA Code, Section 1.B, requires dentists to give a patient, or the patient's new dentist, any information "that will be beneficial for the future treatment of that patient," in accordance with law. The CDA Code (Section 1E) repeats that duty. When a new dentist calls for a copy of last month's radiographs to avoid re-exposing the patient, the ethical answer is to send them promptly once you have the patient's request or a lawful basis to share for treatment (Civil Code § 56.10(c)(1) allows disclosure to other providers for diagnosis or treatment).

Sample problem

A former patient emails on Monday asking for her records and radiographs in electronic form so she can see a new dentist. She owes $480. The office uses electronic records and digital radiography.

• Deadline: transmit copies within 15 days.
• Format: electronic, because the records are electronic and readily producible that way.
• Fee: labor, plus media or postage if requested. There is no per-page paper charge for an electronic copy.
• Balance: irrelevant to the request. Refusing would be a willful violation.