BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 2253 (Pan)
          As Introduced
          Hearing Date: July 3, 2012
          Fiscal: No
          Urgency: No
          NR
                    

                                        SUBJECT
                                           
               Clinical Laboratory Test Results: Electronic Conveyance

                                      DESCRIPTION  

          Existing law authorizes the results of clinical laboratory tests 
          performed at the request of a health care provider to be 
          conveyed to the patient in electronic form if requested by the 
          patient and if deemed most appropriate method of disclosure by 
          the health care professional.  However, laboratories may not 
          electronically release to patients their test results related to 
          HIV antibodies, hepatitis, drug abuse, and specified test 
          results that reveal malignancy.

          This bill would authorize the electronic conveyance of clinical 
          laboratory test results related to HIV antibodies, hepatitis, 
          drug abuse, and specified test results that reveal a malignancy, 
          if requested by the patient, and the health care professional 
          deems electronic conveyance the most appropriate method of 
          disclosure, and the professional has already discussed the 
          results with the patient.  

                                      BACKGROUND  

          Both state and federal law govern the release of patient medical 
          records, including clinical lab results. California law allows 
          patients to inspect their records upon a written request to the 
          health care provider, and also requires health care 
          professionals, at whose request a clinical laboratory test is 
          performed, to provide or arrange for the results to be delivered 
          to the patient.  These results may be delivered in electronic 
          form if the patient so requests, and the health care 
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          professional deems electronic conveyance the most appropriate 
          means of disclosure, given the circumstances.  In the event that 
          test results are delivered electronically, they must first be 
          reviewed by the health care professional, and then be provided 
          to the patient in a reasonable amount of time.  However, there 
          is an exception to the general rule that prohibits the 
          electronic transmission of clinical laboratory test results for 
          HIV, hepatitis, drug abuse, or test results related to routinely 
          processed tissues including if they reveal a malignancy.  This 
          exception was apparently created to protect the confidentiality 
          of the sensitive information contained in these tests, and 
          ensure that a health care professional would be able to 
          interpret and discuss the results with the patient. 

          New technologies and financial incentives have resulted in 
          health care providers increasingly and actively using electronic 
          health records.  In 2009, the President signed the American 
          Recovery and Reinvestment Act (ARRA) which included the 
          establishment of the Office of the National Coordinator for 
          Health Information Technology (ONC) to facilitate and expand the 
          use of health information technology pursuant to national 
          standards.  The ARRA incorporated the health Information 
          Technology for Economic and Clinical Health Act (HITECH) which 
          included a number of funding opportunities for states that 
          advance health information technology and support the adoption 
          of electronic health records (EHR).  The ARRA also included 
          provisions relating to the privacy and security of EHR, and 
          established that an individual has a right to access certain 
          information about him or herself in an electronic format. 

          This bill would authorize electronic conveyance of clinical 
          laboratory test results related to HIV, hepatitis, drug abuse, 
          or test results related to routinely processed tissues if they 
          reveal a malignancy, if requested by the patient, the health 
          care provider deems electronic conveyance the most appropriate 
          method of conveyance, and the health care provider has already 
          discussed the results with the patient. 

                                CHANGES TO EXISTING LAW
           
           Existing law  requires that a health care provider, health care 
          service plan, or contractor must disclose a patient's medical 
          information to him or her.  (Civ. Code Sec. 56.10(b)(7).)  
          Existing law provides that an adult patient of a health care 
          provider, any minor patient authorized by law to consent to 
          medical treatment, and any patient representative shall be 
                                                                      



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          entitled to inspect the patient's records upon presenting to the 
          health care provider a written request for those records and 
          upon payment of reasonable clerical costs incurred in locating 
          and making the records available.  (Health & Saf. Code Sec. 
          123110.)
          
           Existing law  requires a health care professional at whose 
          request a clinical laboratory test is performed to provide or 
          arrange for the results to be delivered to the patient.  At the 
          patient's request, and if deemed most appropriate by the health 
          care professional, the results may be conveyed in electronic 
          form.  (Health & Saf. Code Sec. 123148(a).) 

           Existing law  requires the electronic provision of test results 
          to be delivered to a patient in a reasonable time period, after 
          the results have been reviewed by the health care professional, 
          and recorded in the patient's medical record.  (Health & Saf. 
          Code Sec. 123148(b) and (e).)

           Existing law  establishes use limitations and protections for 
          clinical lab test results conveyed by electronic means, 
          including: 
           the information shall not be used for any commercial purpose 
            without the consent of the patient; and
           any third party to whom the results or information are 
            disclosed to are deemed a provider and subject to limitations 
            under the civil code.  (Health & Saf. Code Sec. 123148(g) and 
            (h).)

           Existing law  provides that a patient or his or her physician may 
          revoke any consent to receive test results electronically at any 
          time and without penalty, except to the extent that action has 
          been taken in reliance on that consent.  (Health & Saf. Code 
          Sec. 123148(j).)
           
          Existing law  prohibits the results of the following clinical 
          laboratory tests from being conveyed electronically to patients: 

           HIV antibody test;
           presence of antigens indicating a hepatitis infection;
           abusing the use of drugs; and
           test results related to routinely processed tissues, including 
            skin biopsies, Pap smear tests, products of conception, and 
            bone marrow aspirations for morphological evaluation, if they 
            reveal a malignancy. (Health & Saf. Code Sec. 123148(f).)

                                                                      



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           This bill  would authorize clinical laboratory test results for 
          HIV antibodies, hepatitis, drug abuse, and test results related 
          to routinely processed tissues, as specified, if:
           the patient requests the electronic conveyance;
           the health care professional deems this conveyance as the most 
            appropriate means; and 
           a health care professional has first discussed the results 
            with the patient. 


                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

             This bill promotes the expansion of health information 
             exchange and electronic health records, as well as, 
             furthering the participation of patients in their own medical 
             decision making.  As the federal government has moved to 
             implement health information exchange and technology with the 
             goal of expanding electronic health records, California has 
             been identified as one of a number of states with state laws 
             that present barriers to the expansion of health information 
             exchange.  Particularly, existing state law prohibits the 
             conveyance of HIV, hepatitis, abuse of drugs, and pathology 
             test results electronically.  The explicit prohibition 
             against conveyance of test results to patients on the 
             specified test creates a special class of information that 
             exceeds the Health Insurance Portability and Accountability 
             Act (HIPAA) privacy standards regulating all other types of 
             personal health information.  This bill would assist eligible 
             professionals and hospitals to qualify for these incentive 
             payments while allowing patients to take an active role in 
             their health care.
           
          2.Confidentiality and security of clinical laboratory results

           This bill would allow, upon the request of the patient and 
          approval of the health care provider, clinical laboratory 
          results related to HIV, hepatitis, drug abuse, and test results 
          related to routinely processed tissues if the test reveals a 
          malignancy, to be electronically released to the patient, as 
          specified.  

          AB 1490 (Thompson, Chapter 529, Statutes of 2001) provided that 
                                                                      



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          test results may be delivered in electronic form if requested by 
          the patient and if deemed appropriate by the health care 
          professional who requested the test.  That bill incorporated a 
          number of safeguards to protect the confidentiality of the 
          information, and also to ensure that the health care 
          professionals had the ability to first review the results and 
          contact the patient if necessary.  However, uneasiness remained 
          concerning the posting of highly sensitive and confidential 
          information to the Internet.  As a result, an exception was 
          created for the tests at issue under this bill, presumably to 
          protect the patient from the social consequences which may arise 
          if the confidentiality of the information was breached.  SB 850 
          (Leno, Chapter 714, Statutes of 2011) was enacted a decade later 
          to further ensure the accuracy, integrity, and efficiency of 
          electronic health information and also clarified that medical 
          information held in both the electronic and physical forms is 
          protected under the law.  SB 850 also required electronic 
          medical record systems to automatically record any change or 
          deletion of any electronically stored medical information, 
          including the identity of the person who accessed and changed 
          the medical information, the date and time the information was 
          accessed, and the change that was made.


          Increasingly, health care professionals have been using 
          electronic records.  Proponents of this trend argue that 
          patients' right to electronic health records allows individuals 
          to take a more active role in their health care.  A recent 
          article published by Kaiser Health News noted that "patient 
          follow-up could make a difference in many instances. The 
          ÝJournal of American College of Radiology] study examined 
          medical malpractice claims from 425 hospitals and 52,000 
          providers. ? Of the 306 cases in which test results were 
          specifically cited as a factor in a malpractice case, the most 
          common problem - it occurred almost half the time - was that the 
          patient didn't receive the test results, cited in 143 cases. The 
          second-most-common problem was that the clinician didn't receive 
          the results, cited in 110 cases. Other problems included delays 
          and slow turnaround in reporting findings and test results that 
          were filed before the clinician reviewed them." (Andrews, Both 
          Patients And Physicians Can Suffer When Test Results Aren't 
          Reported, Nov. 29, 2011, Physician News, < 
          http://www.physiciansnews.com/2011/11/29/both-patients-and-physic
          ians-can-suffer-when-test-results-aren%e2%80%99t-reported/> Ýas 
          of June 28, 2012].)

                                                                      



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          Arguably, the confidentiality and security concerns that existed 
          during the enactment of AB 1490 have been assuaged by new 
          technologies, legislation, and a general level of comfort with 
          the posting of information online.  Furthermore, access to one's 
          medical information encourages greater patient involvement in 
          the managing of their health care and may reduce the risk that 
          health care providers will inadvertently fail to provide 
          requested results to a patient. 

           3.Patient request for specified test results 

           This bill would authorize laboratories to electronically release 
          specified test results directly to the patient if requested by 
          the patient, the health care provider deems electronic 
          conveyance the most appropriate method of conveyance, and the 
          health care provider has already discussed the potential results 
          with the patient.
           
           The American Civil Liberties Union (ACLU) opposes this bill 
          unless it is amended to require the patient to make the request 
          for an electronic conveyance of test results in writing.  The 
          ACLU argues that a written request will "ensure that the patient 
          understands and in fact agrees to receive the results 
          electronically."  In response, the author writes that: 

             existing state law sufficiently ensures that a patient must 
             have already given written consent to conduct the specified 
             test, to share with third parties, including themselves; and 
             for the information to be conveyed electronically if the 
             ordering physician deems it appropriate.  In order to protect 
             patient privacy, AB 2253 only releases clinical lab results 
             to the patient who is the subject of the test and only if so 
             requested by the patient.

          Staff notes that the aim of this suggested amendment, that the 
          patient understands he or she has made a request for an 
          electronic conveyance, is arguably accomplished under the 
          existing provisions of the bill.  First, the patient must 
          specifically request an electronic conveyance of the test 
          results before a health care professional may authorize the 
          release of the results from the lab to the patient.  Second, if 
          the health care professional believes that an electronic 
          conveyance is not the most appropriate way to communicate the 
          results of the test at issue, he or she may not authorize the 
          results to be released to the patient electronically.  Thus, if 
          a patient cannot clearly communicate that he or she wishes to 
                                                                      



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          receive test results electronically, under this bill, the 
          physician should choose a more traditional method of conveyance. 
          This bill would also require a health care provider to first 
          discuss the results of the test with the patient.  Because this 
          discussion must occur prior to the test results being delivered 
          to the patient, practically speaking, the health care 
          professional will probably need to discuss the potential range 
          of results with the patient when the request for an electronic 
          conveyance is made. Thus, it should be clear to the patient that 
          the health care professional will not be present to interpret or 
          explain the results when the patient receives them.  
           
           Furthermore, the provisions of this bill are subject to a 
          requirement under existing law, which provides that the health 
          care professional who ordered the tests must first review the 
          tests before the results may be released to the patient.  This 
          allows the health care professional to contact the patient if 
          the range of test results were not previously discussed with the 
          patient, or the test produced unanticipated or difficult to 
          interpret results.  Finally, existing law provides that a 
          patient may always request to receive medical information 
          through traditional methods, and allows a patient or health care 
          professional to revoke his or her request or authorization to 
          receive results electronically at any time with no penalty. 
          Arguably, adequate protections and safeguards exist to permit 
          patient the convenience and privacy of reviewing test results 
          electronically, if so requested.  
           
           Staff notes that there is pending federal legislation that would 
          require all lab results be made available directly to patients. 
          If passed, these proposed amendment to the Health Insurance 
          Portability and Accountability Act (HIPAA) and the Clinical 
          Laboratory Improvement Amendments (CLIA) would appear to preempt 
          California law, and this bill if enacted.  
           

          Support  :  Center for Democracy and Technology; California 
          Society of Pathologists; Quest Diagnostics Incorporated

           Opposition  :  American Civil Liberties Union (unless amended)

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known
                                                                      



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           Prior Legislation  :

          AB 1490 (Thompson, Chapter 529, Statutes of 2001) See Comment 2. 


          SB 850 (Leno, Chapter 714, Statutes of 2011) See Comment 2. 

           Prior Vote  :

          Assembly Floor (Ayes 73, Noes 1) 
          Assembly Committee on Health (Ayes 18, Noes 1)

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