Fees for Copies of Medical Records
TMA OFFICE OF THE GENERAL COUNSEL JANUARY 2022
Copy Fees Under Texas Medical Board Rules
For many years, the Medical Practice Act allowed physicians to charge a “reasonable fee” for release of medical records.
However, that law proved unworkable, as no one could agree what particular amount was reasonable nor was there any
standard for determining what was an unreasonable fee. The 1995 Texas Legislature directed the then Texas State Board
of Medical Examiners to adopt rules interpreting the “reasonable fee” standard in the law and set the maximum charges
for release of medical records. The Texas Medical Board (TMB) has since adopted rules setting the maximum cost of
copies.
Copy Fees for Medical Records in a Paper Format
Under these rules, physicians may charge no more than $25 for the rst 20 pages and 50 cents for each page thereafter
for medical records provided in a paper format.
1
Thus, a physician may charge a maximum of $27.50 for a 25-page chart.
These are maximums, and the rules bear out that the fee actually charged must be both “reasonable” and “cost-based.
2
Thus, merely following the guideline may not be sufcient to meet the mandate imposed by the regulation.
Copy Fees for Medical Records in an Electronic Format
For medical records provided in an electronic format, the rules provide that physicians may charge no more than $25 for
500 pages or fewer and $50 for more than 500 pages.
3
Again, these are maximums, and the rules state the fee charged
must be reasonable and cost-based.
4
As with providing copies of medical records in a paper format, simply charging the
maximum fee allowed under the rule may not be sufcient to be in compliance with the rule.
Copy Fees for Medical Records in a Hybrid Format
The rules also address the possibility that medical records would be requested partially in electronic format and partially
in paper format (hybrid). Copy fees charged for medical records provided in a hybrid format also must be reasonable
and cost-based.
5
A reasonable fee for providing the requested records in a hybrid format may be a combination of the
fees allowed for providing records in a paper format and in an electronic format.
6
What Is a “Reasonable” Fee?
A reasonable copy fee may include only the costs associated with copying and labor (including compiling, extracting,
scanning, burning onto media, and distributing media);
7
the cost of supplies for creating the paper copy or electronic
media (if the individual requests portable media);
8
postage (if the individual has requested the copy or summary be
mailed);
9
and preparing a summary of the records (when appropriate).
10
The fee may not include costs associated with
searching for and retrieving the requested information.
11
1 22 TAC §165.2(e)(1)(B).
2 22 TAC §165.2(e)(1)(A).
3 22 TAC §165.2(e)(2)(B).
4 22 TAC §165.2(e)(2)(A).
5 22 TAC §165.2(e)(3)(A).
6 22 TAC §165.2(e)(3)(B).
7 22 TAC §165.2(e)(5)(A).
8 22 TAC §165.2(e)(5)(B).
9 22 TAC §165.2(e)(5)(C).
10 22 TAC §165.2(e)(5)(D).
11 22 TAC §165.2(e)(5).
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VISION: To improve the health of all Texans.
MISSION: TMA supports Texas physicians by providing distinctive solutions to the challenges
they encounter in the care of patients.
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What Other Charges Are Permitted?
The regulations provide for a “reasonable fee” cap for supporting “afdavits for medical records custodian,” which often
accompany requests for release of medical records in prelitigation situations. The regulations permit a charge of up to
$15 for completing this document.
12
Pursuant to board rules, physicians are permitted to charge separately for copies of medical and billing records.
13
Where the request is for lms or other static diagnostic imaging studies, the practice is entitled to no more than $8 per
copy of an imaging study.
14
Who Must Pay the Copy Fee?
Texas law and TMB rules govern what physicians may charge but do not address who must pay. This means these rules
appear to govern what physicians may charge anyone (e.g., patient, insurance company, another physician practice,
patients attorney) in most nonsubpoena situations (exceptions are discussed below).
Withholding Copies of Records for Failure to Pay Copy Fee
Generally, the regulations permit physicians to retain records until payment of a copy fee is received (keep in mind
there are exceptions, discussed below). However, to appropriately withhold copies for failure to pay the copy fee, a
physician is required to send the requesting party written correspondence of the need for payment within 10 calendar
days of receiving the request. Failure to send the letter impairs the practice’s ability to withhold the records. TMB further
requires that the “10-day” letter be made part of the patient’s medical and/or billing record.
15
It is important to note
that if the records are requested by a physician licensed in the United States or Canada for the purposes of
providing emergency or acute medical care to the patient, the records cannot be withheld.
16
Although a practice is permitted to withhold copies for lack of payment of the copy fee, TMB has prohibited
practices from using requests for copies as a method of collecting on overdue accounts. Therefore, where a
patient has a past due account for treatment previously rendered to the patient and that patient pays for the
copies, the records must be provided to the patient.
17
TMB does enforce this particular provision. Consider
the following summary (with the physician’s name omitted), which appeared in a TMB newsletter.
P, M.D., Texas
On August 26, 2005, the Board and Dr. P entered into an Agreed Order assessing an administrative
penalty of $500. The action was based on allegations that Dr. P failed to timely provide to one patient
properly requested medical records while under the misunderstanding that records can be withheld
because of an outstanding bill.
18
It is possible that, in addition to the TMB penalty, the physician paid defense costs associated with hiring legal counsel.
Also, the physician must now report on credentialing forms that he has been the subject of a complaint and penalty by
the Texas Medical Board.
The law permits a patient to name a recipient of the copies other than himself or herself.
19
No exception in the law
would permit a physician to refuse disclosure based solely on the objection of who is the named recipient (even if that
recipient is an attorney).
12 22 TAC §165.2(e)(4)(A).
13 22 TAC §165.2(e)(4)(B).
14 22 TAC §165.3(e).
15 22 TAC §165.2(g).
16 22 TAC §165.2(f).
17 22 TAC §165.2(h).
18 Texas Medical Board Bulletin, Vol. 3, No. 1 (Fall 2005) (emphasis added).
19 Tex. Occ. Code §159.005(b)(3).
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When a Practice Cannot Charge for Copies: Exceptions to the Regulations
A physician is entitled to receive copy fees for records before releasing the records, except where the records are
requested:
1. By a licensed Texas health care provider or any American or Canadian licensed physician for emergency or acute
medical care;
20
or
2. To support an application (or an appeal) for disability or other benets or assistance under:
a. Aid to Families with Dependent Children;
b. Medicaid;
c. Medicare;
d. Supplemental Security Income;
e. Federal Old-Age and Survivors Insurance; and
f. Veterans’ benets.
21
Where the requestor attempts to avoid fees under No. 2, above, the law states:
A person … that requests a record under this section shall include with the request a statement
or document from the department or agency that administers the issuance of the assistance or
benets that conrms the application or appeal.
22
The fee is waived only when the patient or his or her attorney requests the records and includes a statement or
document from the agency; it does not apply when a state or federal agency requests the records.
A physician may charge a fee for the medical or mental health record of a patient requested by a state or federal agency
in relation to the patient’s application for benets or assistance under No. 2 above or an appeal relating to denial of
those benets or assistance.
23
A physician is not required to provide more than one complete record requested for veterans’ benets without charge.
If additional material is added to the patient or former patient’s record, on request of the patient, the physician shall
supplement the record provided for veterans’ benets without charge. The law does not appear to permit charging for
copies of supplemental records to support applications under the other mentioned programs.
24
How Do HIPAA Privacy Regulations Affect the Amount the Practice Can Charge?
State regulations also contain provisions relating to HIPAA privacy standards. Physicians who must comply with HIPAA
(and not all physicians must do so, as there are exceptions) must adhere to the federal requirement. Under federal
regulations, the fee must be cost-based and include only the cost of supplies and labor of copying along with any
postage necessary to mail the records. The federal regulations - just as in the state regulations - prohibit physicians
from charging fees for retrieving the records, handling the records, or processing the request for access.
25
The federal
government does not impose a different standard in fees for copies. When adopting the HIPAA regulations, the federal
government stated, “Fees for copying and postage provided under state law, but not for other costs excluded under this
rule, are presumed reasonable.
26
The TMB medical record copy fee rules are adopted by command of state law.
27
The HIPAA privacy regulations do not, by their own terms, expressly permit withholding of records for failure to pay
the copy fee. However, the regulation and the government comments implicitly permit this practice. Consider the
following government discussion:
20 22 TAC §165.2(f).
21 Texas Health and Safety Code §161.202(a).
22 Texas Health and Safety Code §161.202(c) (emphasis added).
23 Texas Health and Safety Code §161.202(b).
24 Texas Health and Safety Code §161.202(d).
25 45 CFR §164.524(c)(4).
26 65 Fed. Reg. 82,557 (emphasis added).
27 Tex. Occ. Code §159.008.
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The inclusion of a fee for copying is not intended to impede the ability of individuals to copy their
records. Rather, it is intended to reduce the burden on covered entities. If the cost is excessively
high, some individuals will not be able to obtain a copy. We encourage covered entities to limit
the fee for copying so that it is within reach of all individuals.
28
One would not expect that the agency adopting the regulations would be concerned about high fees preventing access
to records unless covered entities are permitted to withhold for failure to pay.
Is $6.50 the Maximum Fee HIPAA Allows for a Copy of Electronic Medical Records?
No. In early 2016, the U.S. Department of Health and Human Services (HHS) Ofce of Civil Rights (OCR) published a
fact sheet on individuals’ right under HIPAA to access protected health information (PHI). There was confusion over
some text within the fact sheet, which stated a at fee not to exceed $6.50 is a permissible option for covered entities
when charging individuals requesting electronic copies of medical records. Some interpreted this to mean that $6.50
was the maximum amount that could be charged for providing copies of electronic medical records. In response, OCR
issued a clarication that “$6.50 is not the maximum amount that can be charged for all individual requests for a copy
of PHI under the right of access. Rather, charging a at fee not to exceed $6.50 is an option available to those entities
that do not want to go through the process of calculating the actual or average costs for requests for electronic copies of
PHI maintained electronically as permitted by the Privacy Rule.
29
While OCR permits the option of a $6.50 at fee for electronic medical records for physicians who do not want to
calculate actual or average costs, TMB rules still require copy fees to be “cost-based.
30
Copy Fees Under the Information Blocking Provision of the 21st Century Cures Act
The 21st Century Cures Act prohibits information blocking of electronic health information (EHI).
31
For a physician,
information blocking means a practice that is likely to interfere with the access, exchange, or use of EHI where the
physician knows such practice is unreasonable and is likely to interfere with the access, exchange, or use of EHI.
32
It
does not include a practice required by law or covered by an exception under the Cures Act.
33
To avoid implicating the information blocking provision when charging a fee to access, exchange, or use EHI, a
physician would generally need to satisfy the conditions of the fees exception under the Cures Act.
34
However, if the
physician fullls the request for EHI in the manner requested, any fees charged do not have to satisfy this exception.
35
To rely on the fees exception,
36
the following conditions must be satised:
1. Basis for fees condition.
a. The fees the physician charges must be:
i. Based on objective and veriable criteria that are uniformly applied for all similarly situated classes of
persons or entities and requests;
ii. Reasonably related to the physician’s costs of providing the type of access, exchange, or use of EHI to, or at
the request of, the person or entity to whom the fee is charged (e.g., for copy fees, the lesser of the amount
permitted by state law or HIPAA);
28 65 Fed. Reg. 82,557 (emphasis added).
29 U.S. Department of Health and Human Services (emphasis in original). Clarication of Permissible Fees for HIPAA Right of Access – Flat Rate Option of
Up to $6.50 is Not a Cap on All Fees for Copies of PHI. May 23, 2016.
30 22 TAC §§165.2(e)(1)(A), (e)(2)(A), and (e)(3)(A).
31 42 USC §300jj-52(b)(2)(B) (penalty referrals for health care providers who commit information blocking).
32 45 CFR §171.103.
33 Id.
34 85 Fed. Reg. 25,879: ”[W]e interpret the broad denition of information blocking … to encompass any fee that is likely to interfere with the access,
exchange, or use of EHI (84 FR 7521). Fees that do not meet this exception may implicate the information blocking provision and will have to be
assessed on a case-by-case basis to determine, for example, the actor’s intent and whether the practice rises to the level of an interference. (Emphasis
in original.)
35 45 CFR §171.301(b)(1)(ii)(A).
36 45 CFR §171.302(a)-(b).
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iii. Reasonably allocated among all similarly situated persons or entities to whom the technology or service is
supplied, or for whom the technology is supported; and
iv. Based on costs not otherwise recovered for the same instance of service to a provider and third party.
b. The fees the physician charges must not be based on:
i. Whether the requestor or other person is a competitor or potential competitor, or will be using the EHI in a
way that facilitates competition with the physician;
ii. Sales, prot, revenue, or other value the requestor or other persons derive or may derive from the access,
exchange, or use of the EHI;
iii. Costs the physician incurred due to the health IT being designed or implemented in a nonstandard way,
unless the requestor agreed to the fee associated with the nonstandard design or implementation to access,
exchange, or use the EHI;
iv. Costs associated with intangible assets other than the actual development or acquisition costs of such assets;
v. Opportunity costs unrelated to the access, exchange, or use of EHI; or
vi. Any costs that led to the creation of intellectual property, if the physician charged a royalty for that
intellectual property pursuant to the licensing exception and that royalty included the development costs for
the creation of the intellectual property.
2. Excluded fees condition. The fees exception does not apply to:
a. A copy fee prohibited by HIPAA;
b. A fee based in any part on the electronic access (dened below) of a patient’s EHI by the patient or the patient’s
representative or designee;
c. A fee to perform an export of EHI via the capability of health IT certied to the 2015 Edition health IT
certication criteria for the purposes of switching health IT or to provide patients their EHI; and
d. A fee to export or convert data from an EHR technology that was not agreed to in writing at the time the
technology was acquired.
“Electronic access” means an internet-based method that makes EHI available at the time the EHI is requested and
where no manual effort is required to fulll the request.
37
Notably, a fee to access EHI through some form of physical media, such as paper copies (where the EHI is printed out),
or where EHI is copied onto a CD or ash drive, does not implicate the information blocking provision – and therefore
not need to satisfy the fees exception – provided the fee complies with HIPAA.
38
Copy Fees for Specific Records
Copy Fees for Hospitals
Hospitals may charge for copies; however, the hospital fee schedule for copies is governed by a different law. Texas
Health and Safety Code §241.151 et seq. creates special medical records release provisions for licensed hospitals – and
only licensed hospitals. They do not apply to physician ofces. The fee is to be adjusted accordingly based on certain
changes to the consumer price index, effective Sept. 1, 1996, and annually thereafter.
The fee schedule FOR HOSPITALS ONLY as of Sept. 1, 2021, is as follows:
39
1. A basic retrieval or processing fee, which must include the fee for providing the rst 10 pages of copies and which
may not exceed $52.12; and
37 45 CFR §171.302(d). Fees based on electronic access are distinguished from the cost-based fees that a physician may charge for copies of electronic
protected health information under HIPAA and state law, which would not be excluded under the fees exception. 85 Fed. Reg. 25,886.
38 85 Fed. Reg. 25,886.
39 Texas Health and Human Services. Maximum Fees Allowed for Providing Health Care Information Effective September 1, 2021.
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a. A charge for each page of:
i. $1.76 for the 11th through the 60th page of provided copies;
ii. 86 cents for the 61st through the 400th page of provided copies;
iii. 47 cents for any remaining pages of the provided copies; and
b. The actual cost of mailing, shipping, or otherwise delivering the provided copies;
2. If the requested records are stored on microform, a retrieval or processing fee, which must include the fee for
providing the rst 10 pages of the copies and which may not exceed $79.39; and
a. $1.81 per page thereafter; and
b. The actual cost of mailing, shipping, or otherwise delivering the provided copies; or
3. If the requested records are provided on a digital or other electronic medium and the requesting party requests
delivery in a digital or electronic medium, including electronic mail:
a. A retrieval or processing fee, which may not exceed $94.42; and
b. The actual cost of mailing, shipping, or otherwise delivering the provided copies.
In addition, Texas Health and Safety Code §241.154 prohibits a hospital from charging a fee for providing health care
information where the fee is prohibited under Texas Health and Safety Code §161.202 (regarding support for applications
for disability).
Copy Fees for Mental Health Records
Under the Texas Mental Health Code, if the patient requests a summary or narrative of “mental health records,” the
mental health “professional” (which includes physicians) must respond or give the patient a written reason for a refusal
to disclose.
40
A professional or other entity who has possession or control of a mental health record shall grant access
to any portion of the record to which access is not specically denied, within a reasonable time and may charge a
reasonable fee.
41
It is unclear whether the TMB rules regarding fees for medical records generally apply to fees for copies of mental health
records, specically. The regulations do not mention this portion of the health and safety code. Nonetheless, it may be
prudent for physicians who are mental health “professionals” to follow the TMB rules in this area.
Copy Fees for Workers’ Compensation
Physicians who examine or treat workers’ compensation patients must send copies of certain medical and
narrative reports to the Texas Department of Insurance (TDI) Division of Workers’ Compensation (DWC), the
workers’ compensation carrier, the injured worker, and the workers representative.
42
No written consent to release
medical records is required in this situation, and the HIPAA privacy regulation contains an exception for workers’
compensation.
43
A physician must provide the injured worker and/or the workers representative with an initial copy of the medical
documentation without charge.
44
Additionally, a workers’ compensation carrier is not required to pay a physician
for initial medical documentation provided by a physician to support payment of a medical bill submitted by the
physician.
45
However, in both instances, the requestor shall pay the physician for any subsequent requests of the
same medical documentation.
46
If the injured worker and/or the worker’s representative requests creation of medical
40 Texas Health and Safety Code §§611.001 and 611.0045.
41 Texas Health and Safety Code §611.0045 (emphasis added).
42 28 TAC §§127.10(e)-(f) and 130.1(d).
43 45 CFR §164.512(l).
44 28 TAC §134.120(c).
45 28 TAC §134.120(a).
46 28 TAC §134.120(b)-(c).
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documentation, such as a medical narrative, the requestor shall pay the physician for this additional information.
47
A physician may not charge TWI DWC for any documents it requests or requires.
48
Where payment is permitted, a physician may charge for reports and copies of records of workers’ compensation
patients only according to a fee schedule adopted by TDI DWC
49
:
Copies of medical documentation 50 cents per page
Copies of hospital records Initial fee of $5 plus 50 cents per page for the rst 20 pages,
then 30 cents per page for records over 20 pages
Microlm 50 cents per page
Copies of x-rays $8 per lm
Narrative reports $100 for one to two pages, then $40 per page after two pages
Copy Fees and Subpoenas
When You Receive a Subpoena Duces Tecum for Medical Records, Are You Entitled to Be Paid for Your
Trouble?
While it is customary to pay professionals for their time in responding to a subpoena (primarily out of a desire to
avoid an uncooperative witness who feels he or she has been “stiffed” out of the copying fee), the Texas Rules of Civil
Procedure do not absolutely require parties to lawsuits to pay the persons upon whom they serve subpoenas for either
the documents requested or the time necessary to attend a deposition or court hearing (unless the person subpoenaed
is called to testify as an expert witness). This is often an unpleasant surprise to many people; however, it is consistent
with established legal precedent. The U.S. Supreme Court put it this way: “There is a public obligation to provide
evidence, and this obligation persists no matter how nancially burdensome it may be.Hurtado v. U.S., 410 U.S. 578
(1973).
The Texas Rules of Civil Procedure generally state that “a person served with a subpoena must comply with the
command stated therein unless discharged by a court or by the party summoning such witness.
50
Note that the
language of the rule does not allow someone to refuse to produce any object or writing unless he or she is rst paid
a set fee for the records sought. In other words, a party receiving a subpoena duces tecum may send a bill for his or
her overhead costs, or handling or preparation fees, but there is no absolute requirement that the attorney issuing the
subpoena has to pay that bill.
However, if the opposing party les a motion to quash or modify a subpoena, the court must provide a person served
with a subpoena “protection from undue burden or expense.
51
The attitude of attorneys varies greatly in this area: Some are willing to pay any reasonable amount while others “play
hard ball” and refuse to pay any amount on grounds that the rules of procedure do not mandate that they do so. As
Texas Rules of Civil Procedure Rule 176 refers to undue expense and TMB has set “reasonable fees,” a court might
recognize what the TMB rules allow as the maximum reasonable cost in subpoena situations where a motion to quash
has been led, but there is no assurance this would be the case.
This insight is bolstered by another action taken by the 1995 Texas Legislature: The enactment of section 22.004 of the
Texas Civil Practice and Remedies Code, which limits compensation paid to a custodian of records (any records) who
produces records under compulsion of a tribunal (that likely means a subpoena) to one dollar ($1).
52
This is because
of the “rule of statutory construction” that states that when two laws purport to govern a subject, the specic law is
given preference over the general law. In this case, the bill enacting the section of the Civil Practice and Remedies Code
is specic, as it governs production of documents under subpoena – and the Medical Practice Act does not mention
47 28 TAC §134.120(d).
48 28 TAC §134.120(e) (emphasis added).
49 28 TAC §134.120(f).
50 Texas Rules of Civil Procedure 176.6(a).
51 Texas Rules of Civil Procedure 176.7.
52 See Texas Civil Practice & Remedies Code §22.004(a).
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subpoenas. In addition, no professional licensing board is empowered to make rules governing civil procedure or
evidence in lawsuits. That is a task left to the judicial branch of government, not the executive branch.
TMA has a separate white paper on Subpoenas for Medical Records.”
53
Copy Fees and Utilization Review Agents
Utilization review agents shall pay health care professionals for the reasonable costs of providing medical information
in writing, including copying and transmitting any requested patient records or other documents, unless precluded or
modied by contract.
54
The charges shall not exceed the cost of copying for workers’ compensation records.
55
A contract provision that arguably could modify the right to be paid under this chapter of the insurance code may read
as follows:
The medical records maintained by Physician shall remain the property of the Physician and shall not
be transferred or removed from Physician. Physician shall permit MCO with access to medical records
for three years following termination of the agreement. Physician agrees to provide any copies of
medical records as may be requested by enrollees or MCO.
The health plan would argue that agreement to provide records as requested means to provide those records without
charge.
Exceptions
These utilization review provisions do not apply to certain dened types of reviews, including: (1) Medicare,
56
(2)
Medicaid,
57
(3) claims under an automobile insurance policy,
58
and (4) benets of employee welfare benet plans under
the Employee Retirement Income Security Act of 1974 (ERISA).
59
Copying Fees in Other Situations
Several governmental entities have rights to audit records of various sorts in a physicians ofce. Most of these agencies
require that physicians make them copies at no charge when they are conducting an investigation. The Texas Medicaid
and Healthcare Partnership (TMHP) September 2021 Texas Medicaid Provider Procedures Manual provision is fairly
representative: “The provider is required to submit original documents, records, and accompanying business records
afdavits to representatives of the organizations listed in this section. … Requested records must be provided promptly
and at no cost to the state or federal agency” (in this case, the Texas Health and Human Services Commission or its
Ofce of Inspector General, the Texas Department of State Health Services, TMHP, the Attorney General’s Medicaid
Fraud Control Unit or Antitrust and Civil Medicaid Fraud Section, the Texas Department of Family and Protective
Services, the Texas Workforce Commission, or the U.S. Department of Health and Human Services).
If you are subject to a governmental audit, be very clear what your rights and responsibilities are. Also, the Texas
Medical Board may request medical records without charge pursuant to an investigation.
Conclusion
Physicians are often permitted to charge for copies of medical records. Practices should not confuse the rules that affect
physicians with the fee schedule that affects hospitals. However, the general rule has a number of exceptions, and
policies should be put into place within the practice to prevent improper charges.
53 TMA log-in required; available at: www.texmed.org/Template.aspx?id=2101.
54 Texas Insurance Code §4201.207(a).
55 Texas Insurance Code §4201.207(b)(1).
56 Texas Insurance Code §4201.052.
57 Texas Insurance Code §4201.053(a)(1).
58 Texas Insurance Code §4201.055.
59 Texas Insurance Code §4201.056.
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NOTICE: Please check the Texas Medical Board website at www.tmb.state.tx.us for current updates on its
rules and policies with respect to this issue.
NOTICE: The Texas Medical Association provides this information with the express understanding that
(1) no attorney-client relationship exists, (2) neither TMA nor its attorneys are engaged in providing
legal advice, and (3) that the information is of a general character. This is not a substitute for the
advice of an attorney. While every effort is made to ensure that content is complete, accurate, and
timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication
and assumes no legal responsibility for loss or damages resulting from the use of this content. You
should not rely on this information when dealing with personal legal matters; rather legal advice from
retained legal counsel should be sought. Any legal forms are only provided for the use of physicians
in consultation with their attorneys. Certain links provided with this information connect to websites
maintained by third parties. TMA has no control over these websites or the information, goods, or
services provided by third parties. TMA shall have no liability for any use or reliance by a user on these
third-party websites.
KF.311060.1.22