Maryland's Confidentiality of Medical Records Act: The Ghost of Judge Bork Prevails

Janice Hollabaugh v. MRO Corporation, No. 27, September Term, 2024. Opinion by Fader, C.J. 

            Plaintiff Janice Hollabaugh authorized her attorney to request her medical records from her medical care provider, name unknown.  Ms. Hollabaugh was in the process of making a claim for an unknown personal injury.  As is often the case, the subject medical care provider utilized the services of a vendor to handle medical record requests, i.e., in this instance, it was MRO Corporation.  Upon receiving Ms. Hollabaugh’s attorney’s request for her medical records, the medical care provider contacted MRO to fulfill said request.  Unfortunately, MRO was unsuccessful in obtaining Ms. Hollabaugh’s medical records after making a search for same.  MRO thereafter sent a notice to Ms. Hollabaugh’s attorney stating “Your request for Medical Records has been cancelled.”  Here’s the rub … MRO charged Ms. Hollabaugh’s attorney a fee in the amount of $22.88, ‘for searching for her Medical Records.’  Ms. Hollabaugh’s attorney paid said fee with Ms. Hollabaugh reimbursing him in full, ostensibly from her personal injury/financial recovery.    

Thereafter, now Plaintiff Janice Hollabaugh filed a ‘class action’ lawsuit in the Circuit Court for Baltimore County alleging (Count I) that the ‘fee’ charged by MRO for the unsuccessful ‘search’ for her medical records violated Health General Article §4-304(c) of the Confidentiality Act, seeking damages equal to the alleged ‘overpayment’.[1]  This section of the Confidentiality Act governs or better said ‘Authorizes’, inter alia, the $22.88, fee for “record and preparation”.  MRO filed a Motion to Dismiss arguing that (1): §4-304(c) does authorize the charging of a fee for searches that do not result in the finding/production of records and, (2): that Ms. Hollabaugh lacked standing to sue.  The Circuit Court for Baltimore County granted the Motion to Dismiss on the issue of MRO’s argument/interpretation of §4-304(c).  This ruling was affirmed by the Appellate Court of Maryland.  The Supreme Court of Maryland granted Ms. Hollabaugh’s petition for writ of certiorari in order to decide whether the Confidentiality Act authorizes MRO’s search fee, i.e., a ‘search’ that does not result in the production of records, along with granting MRO’s cross-petition on whether Ms. Hollabaugh has standing to raise that claim.[2]  

Turning to the statute, in salient section;

“(C)(3)(i) … for a copy of a medical record requested by a person in interest or any other authorized person under paragraph (2)(ii) of this subsection, a health care provider may charge a fee for copying and mailing not exceeding 76 cents for each page of the medical record.

(ii) In addition to the fee charged under subparagraph (i) of this paragraph, a hospital or a health care provider may charge:

1.      Subject to the fee limitations that apply to persons in interest under 45 C.F.R. 164.524

and any guidance on those limitations issued by the U.S. Department of Health and Human Services, a preparation fee not to exceed $22.88 for medical record retrieval and preparation; and

2.      The actual cost for postage and handling of the medical record.[3]

(iii) Subject to the fee limitations that apply to persons in interest under 45 C.F.R. 164.524 and any guidance on those limitations issued by the U.S. Department of Health and Human Services, a hospital or a health care provider that uses or maintains the requested medical records in an electronic format may charge for an electronic copy of a medical record in an electronic format requested by a person in interest or any other authorized person:

1.      A preparation fee not to exceed $22.88 for electronic format medical records retrieval and preparation;

2.      A per-page fee of 75% of the per-page fee charged by a health care provider under subparagraph (i) of this paragraph that may not exceed $80; and

3.      The actual cost for postage and handling of the electronic format medical records. Health-Gen. 4-304(c)(3).

            In Ms. Hollabaugh’s perspective, §4-304(c) does not allow and/or permit a health care provider to charge a fee for an unsuccessful records search, in short, a ‘search fee’ is simply not present in the clear language of the statute.  MRO argued that (1): yes, a health care provider can charge for a search that does not result in a retrieval because ‘searching’ for records is a necessary and component part of ‘retrieval’, and, (2): it is ‘illogical’ to permit a record holder to recover its costs when records are found and not to permit the recovery of said costs when records are not found.  The Court agreed that while a ‘search’ for a medical record is a necessary antecedent to ‘retrieving’ those records, it is a separate step and more to the point, it is not a step that is separately named or codified in the language of the statute.  Additionally, pursuant to the intent of the Maryland State Legislature, the statute presents certain “decisions concerning when providers may charge fees, what those fees may be charged for, and the amount of those fees for complying with obligations to provide medical records. That it has drawn lines in places MRO might not agree with does not make those lines illogical.”

            The Supreme Court of Maryland ruled in favor of Ms. Hollabaugh holding that §4-304(c) of the Health-General Article does not allow a health care provider to charge a preparation fee for a medical records search that does not result in any records being retrieved and prepared to be provided to the requesting party.  The Court reasoned that MRO’s arguments fail to account for the statute’s presupposition of actual records at the end of a request, i.e., in terms of ‘preparation’, ‘handling’, ‘copying’ and ‘providing’.  The Court reasoned that “every aspect of §4-304 contemplates the existence of medical records maintained by the provider from whom they are requested.” If no records exist, then no fee may be charged. 

        - Milton P. Warren, Of Counsel 

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[1] Perhaps another future blog will be drafted on the apparent abundance of time and under-utilized resources of this Plaintiff in pursuit of $22.88, recovery in damages, notwithstanding the possibility of the awarding of treble damages pursuant to the Maryland Consumer Protection Act and the Maryland Consumer Debt Collection Act cause(s) of action presented in Ms. Hollabaugh’s Circuit Court Complaint.

[2] Suffice it to say that this article will not focus on the issue of Ms. Hollabaugh’s ‘standing’ other than to simply say that Ms. Hollabaugh overcame MRO’s argument (one of two) that she did not have standing to sue over the alleged violation of section §4-304(c) of Health Gen. Art., as it was her attorney who actually paid MRO for the offending fee for the unsuccessful ‘search’ for her medical records.

[3] Section §4-304(c)(3) allows the fees authorized under (c)(3) to be adjusted annually for inflation in accordance with the Consumer Price Index except for the fee for ‘retrieval and preparation’ of a medical record in hard copy or electronic format.