BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 850|
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UNFINISHED BUSINESS
Bill No: SB 850
Author: Leno (D)
Amended: 9/1/11
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 05/10/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
SENATE FLOOR : 21-15, 05/31/11
AYES: Alquist, Calderon, Corbett, De León, DeSaulnier,
Evans, Hancock, Kehoe, Leno, Lieu, Liu, Lowenthal,
Negrete McLeod, Padilla, Pavley, Price, Rubio, Simitian,
Steinberg, Wolk, Yee
NOES: Anderson, Blakeslee, Cannella, Correa, Dutton,
Emmerson, Fuller, Gaines, Harman, Huff, La Malfa, Runner,
Strickland, Walters, Wyland
NO VOTE RECORDED: Berryhill, Hernandez, Vargas, Wright
ASSEMBLY FLOOR : 58-18, 9/7/11 - See last page for vote
SUBJECT : Medical records: confidential information
SOURCE : Consumer Attorneys of California
DIGEST : This bill requires electronic health record
systems or electronic medical record systems to
automatically record and preserve any change or deletion of
any electronically stored medical information and would
enact related requirements. This bill clarifies that
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existing law relating to the destruction of medical records
applies to medical information, thus including information
kept in both physical and electronic form.
Assembly Amendments added definitions, and made technical
and clarifying changes.
ANALYSIS : Existing law prohibits a health care provider,
health care service plan, or contractor from disclosing
medical information regarding a patient, enrollee, or
subscriber without first obtaining an authorization, except
as specified. (Civ. Code Sec. 56.10(a).) Existing law
requires a health care provider, health care service plan,
or contractor to disclose medical information if the
disclosure is compelled as specified (Civ. Code Sec.
56.10(b)) and permits a health care provider or service
plan to disclose medical information in specified
circumstances. (Civ. Code Sec. 56.10(c).)
Existing law defines "medical information" to mean any
individually identifiable information, in electronic or
physical form, in possession of or derived from a provider
of health care, health care service plan, pharmaceutical
company, or contractor regarding a patient's medical
history, mental or physical condition, or treatment.
Existing law defines "individually identifiable" to mean
that the medical information includes or contains any
element of personal identifying information sufficient to
allow identification of the individual, such as the
patient's name, address, electronic mail address, telephone
number, or social security number, or other information
that, alone or in combination with other publicly available
information, reveals the individual's identity. (Civ. Code
Sec. 56.05(g).)
Existing law requires a health care provider, health care
service plan, pharmaceutical company, or contractor who
creates, maintains, preserves, stores, abandons, destroys,
or disposes of medical records to do so in a manner that
preserves the confidentiality of the information contained
within those records. Existing law provides that any
health care provider of health care, health care service
plan, pharmaceutical company, or contractor who negligently
creates, maintains, preserves, stores, abandons, destroys,
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or disposes of medical records shall be subject to existing
remedies and penalties, as specified. (Civ. Code Sec.
56.101.)
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 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.)
This bill revises Section 56.101, relating to the
destruction of medical records to specify that this section
applies to the destruction of "medical information" rather
than "medical records," thus clarifying that information
held in both physical and electronic form is protected.
This bill requires electronic health record systems or
electronic medical record systems to do the following:
1.Protect and preserve the integrity of electronic medical
information.
2.Automatically record and preserve any change or deletion
of any electronically stored medical information. The
record of any change or deletion shall include the
identity of the person who accessed and changed the
medical information, the date and time the medical
information was accessed, and the change that was made to
the medical information.
This bill provides that a patient's right to access or
receive a copy of his or her electronic medical records
upon request shall be consistent with current applicable
state and federal laws governing patient access to, and the
use and disclosures of, medical information.
This bill provides that the above provisions apply to an
"electronic medical record" or "electronic health record"
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that meets the definition of "electronic health record," as
defined.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 9/7/11)
Consumer Attorneys of California (source)
California Association of Health Underwriters
Consumer Federation of California
ARGUMENTS IN SUPPORT : According to the author's office:
Conflicting records and records with missing
information make it impossible for a healthcare
provider to adequately evaluate and treat a patient
and can have egregious consequences. Preserving the
integrity and accuracy of electronic health records is
crucial to reducing the occurrence of medical errors.
Keeping complete and accurate records has genuine
health and safety implications on a patient's
well-being and quality of life. SB 850 would ensure
the accuracy and integrity and efficiency of
electronic health records in order to achieve the
ultimate goal of reducing medical errors.
Current law has failed to assure that EHR systems
protect the integrity of a patient's medical records.
In some situations, health care providers have taken
advantage of design flaws to cover-up errors by
modifying or deleting earlier entries.
At Stanford Hospital, doctors failed to treat a
patient who suffered from complications following a
surgery; and as a result, she died. The patient's
surviving family members had to request records from
Stanford six times only to be told the information did
not exist. But further investigations revealed that
many records were not produced because of a
technicality and because several records were
destroyed after the error was made and the patient had
died. In other situations, patients have received
conflicting records when requesting their records from
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their health care provider. In Northern California, a
patient had requested his records three times because
there was no record of a particular visit to a doctor.
It wasn't until the third request that this visit was
reflected in his records, with no explanation as to
why the record was initially missing.
The Consumer Attorneys of California writes:
Deletions and modifications of a record put a
patient's safety at risk whether intentional or
unintentional. Systems must be put into place to
ensure that a patient's record accurately reflects the
patient's health history and medical treatment in
order to provide the quality care to a patient in the
future. A simple inadvertent mistake, such as
deleting a patient's allergic reactions, can have
detrimental effects in the future.
SB 850 increases the level of accountability in the
electronic storage and maintenance process. Several
healthcare providers have pioneered this effort by
implementing these safeguards on their own, and they
can be easily accomplished. Providers like Kaiser and
the Veteran's Administration (VA) Medical Centers are
among the largest EHR systems in the nation and have
already provided such patient protections. This
change in law will ensure that there is always a clear
record of treatment received by the patient, and that
vital information does not go missing. In so doing,
SB 850 helps to ensure the accuracy and integrity of
electronic health records thus contributing to the
ultimate goal of reducing medical errors.
ASSEMBLY FLOOR : 58-18, 9/7/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fletcher, Fong,
Fuentes, Beth Gaines, Galgiani, Gatto, Gordon, Hall,
Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman,
Jeffries, Lara, Bonnie Lowenthal, Ma, Mendoza, Miller,
Mitchell, Monning, Nestande, Pan, Perea, V. Manuel Pérez,
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Portantino, Skinner, Smyth, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. Pérez
NOES: Conway, Cook, Donnelly, Garrick, Grove, Hagman,
Halderman, Harkey, Jones, Knight, Logue, Morrell,
Nielsen, Norby, Olsen, Silva, Valadao, Wagner
NO VOTE RECORDED: Charles Calderon, Furutani, Gorell,
Mansoor
RJG:nl 9/8/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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