(a) Purpose. This section is promulgated to ensure that patients have reasonable access to diagnostic imaging studies maintained in the physician's office and that the practice of medicine by individual licensees and the delivery of health care to the public shall not be unduly hindered or interrupted by allowing for such access. As used in this section, "diagnostic imaging studies" or "imaging studies" includes static and non-static films and imaging studies in electronic format.
(b) Request and release.
  (1) Upon receiving a written request and release of information that complies with §159.005 of the Act, a physician in possession or control of diagnostic imaging studies of a patient shall allow access to the imaging studies through one or more of the following means:
    (A) providing copies of the imaging studies to the patient or recipient as designated in the request; or
    (B) releasing the original imaging studies to the patient or recipient as designated in the request.
  (2) Release and transfer of original imaging studies may be evidenced by a signed and dated receipt from a patient or recipient of the original imaging studies, or from their authorized representative, acknowledging receipt of and responsibility for the original imaging studies.
(c) Exceptions. As provided for under §159.005 of the Act, a physician is not required to release imaging studies directly to a patient if the physician determines that access to the imaging studies would be harmful to the physical, mental, or emotional health of the patient. If a physician makes a determination that access would be harmful to the physical, mental, or emotional health of the patient, the physician shall, within the time allowed after receipt of a proper request, provide access to the requested imaging studies to an authorized representative of the patient as provided for in subsection (b) of this section.
(d) Time for release and denial. The requested copies or access to imaging studies shall be provided by the physician within 15 business days after the date of receipt of the request. If the physician denies the request, in whole or in part, the physician shall furnish the patient or recipient a written statement, signed and dated, within 15 business days of receipt of the request stating the reason for the denial and how the patient or recipient can file a complaint with federal Department of Health and Human Services and the Texas Medical Board. A copy of the statement denying the request shall be placed in the patient's medical records.
(e) Fees. The physician responding to a request by providing copies of imaging studies shall be entitled to a reasonable fee for providing the copies. A reasonable fee shall be no more than $8 per copy of an imaging study. In addition, a reasonable fee may include actual costs for mailing, shipping, or delivery.
(f) Emergency Request. The physician providing copies of requested imaging studies shall be entitled to a reasonable fee prior to release of the copies unless the copies are requested by a licensed Texas health care provider or a physician licensed by any state, territory, or insular possession of the United States or any state or province of Canada if requested for purposes of emergency or acute medical care.
(g) Non-emergent Requests. In the event that the physician receives a proper request for access to imaging studies for purposes other than for emergency or acute medical care, the physician may retain copies of the requested information until payment is received. If payment is not routed with such a request, within ten calendar days from receiving the request, the physician shall notify the requesting party in writing of the need for payment and may withhold the copies until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patient's medical record.
(h) Improper Withholding for Past Due Accounts. Access to or copies of imaging studies requested pursuant to a proper request for release may not be withheld from the patient, the patient's authorized agent, or the patient's designated recipient for such copies based on a past due account for medical care or treatment previously rendered to the patient.
(i) Subpoena. A subpoena shall not be required for access to or the release of originals or copies of imaging studies requested pursuant to the provisions of this section.
(j) Maximum charges. The allowable charges set forth in this section shall be maximum amounts, and this section shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by prevailing state or federal law.

Source Note: The provisions of this §165.3 adopted to be effective December 29, 1997, 22 TexReg 12490; amended to be effective September 19, 2002, 27 TexReg 8769; amended to be effective September 14, 2003, 28 TexReg 7703; amended to be effective June 24, 2009, 34 TexReg 4124