Senate Bill No. 588

Introduced by Senator Emmerson

February 22, 2013

An act to amend Sections 1158 and 1563 of the Evidence Code, relating to evidence.

LEGISLATIVE COUNSEL’S DIGEST

SB 588, as introduced, Emmerson. Medical records: reproduction fees.

(1) Existing law requires certain enumerated health care providers to make all of a patient’s records under their custody or control available for inspection and copying by an attorney at law, or his or her representative, who presents a written authorization therefor, as specified. Existing law authorizes any person or enumerated health care provider to charge all reasonable costs incurred in making the patient records available against the person whose written authorization required the availability of the records, as specified. Where the medical records are delivered to the attorney or the attorney’s representative for inspection or photocopying at the record custodian’s place of business, existing law prohibits the fee for complying with the authorization from exceeding $15 dollars, plus actual costs, as specified.

This bill would delete the provision that authorizes all reasonable costs to be charged against the person whose written authorization required the availability of the records, and would instead require certain fees for producing paper or electronic copies of medical records, including a search and retrieval fee of $30 dollars; a fee of 50 cents per page for the first 25 pages and 25 cents for each additional page, as specified; a fee of 50 cents per page for reproduction of documents stored on microfilm, oversize documents, or documents requiring special processing; actual postage charges, as specified; and the actual cost, if any, charged to the witness by a third party for the retrieval and return of records held offsite by that third party. The bill also would delete the provision that prohibits the fee from exceeding $15 dollars, plus actual costs, as specified, where the records are delivered to the attorney or the attorney’s representative for inspection or photocopying at the record custodian’s place of business. The bill would provide that an electronic copy of a patient’s medical record is required only under specified conditions.

This bill would, no later than December 1 of each year, require the Director of the California Department of Health Care Services to examine the need to increase or decrease the specified fees by making a calculation based on the Consumer Price Index for All Urban Consumers published by the United States Department of Labor, Bureau of Labor Statistics, as specified, and would authorize the Director to increase or decrease the fees at his or her sole discretion. The bill would prohibit the fees from remaining unchanged for 3 consecutive years unless the Consumer Price Index does not change during that 3-year period. The bill would require any changes to the rates to be effective on January 1 following the December 1 calculation and to be published on the Department of Health Care Services Internet Web site on or before that date.

(2) Existing law provides for procedures for the production of business records pursuant to a subpoena duces tecum. Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.

This bill would clarify that the reasonable costs incurred by a nonparty witness do not apply to fees incurred in response to a subpoena for the production of medical records. Instead, the fees established for the production of medical records pursuant to an authorization would apply to the production of medical records in response to a subpoena.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1158 of the Evidence Code is amended
to read:

1158.  

begin delete Whenever, prior to end delete begin insert (a) end insert begin insert   end insert begin insert Before end insert the filing of any action
or the appearance of a defendant in an action, begin insert if end insert an attorney at law
or his or her representative presents a written authorization therefor
signed by an adult patient, by the guardian or conservator of his
or her person or estate, or, in the case of a minor, by a parent or
guardian of the minor, or by the personal representative or an heir
of a deceased patient, or a copy thereof, a physician and surgeon,
dentist, registered nurse, dispensing optician, registered physical
therapist, podiatrist, licensed psychologist, osteopathic physician
and surgeon, chiropractor, clinical laboratory bioanalyst, clinical
laboratory technologist, or pharmacist or pharmacy, duly licensed
as such under the laws of the state, or a licensed hospital, shall
make all of the patient’s records under begin delete his, hers or its end delete begin insert that person end insert
begin insert or entity’s end insert custody or control available for inspection and copying
by the attorney at law or begin delete his, or her, end delete begin insert his or her end insert representative,
promptly upon the presentation of the written authorization.

begin insert (1) end insert begin insert   end insert begin delete No copying may end delete begin insert Copying of medical records stored on
paper shall not end insert be performed by any medical provider or employer
begin delete enumerated above, end delete begin insert described in subdivision (a), end insert or by an agent
thereof, when the requesting attorney has employed a professional
photocopier or anyone identified in Section 22451 of the Business
and Professions Code as his or her representative to obtain or
review the records on his or her behalf. The presentation of the
authorization by the agent on behalf of the attorney shall be
sufficient proof that the agent is the attorney’s representative.

begin insert

(2) An electronic copy of a patient’s medical record shall be
required only if all of the following conditions are met:

end insert begin insert

(A) The entire request can be reproduced from an electronic
health record system.

end insert begin insert

(B) The medical record is specifically requested to be delivered
in electronic format.

end insert begin insert

(C) The medical record can be delivered electronically.

end insert

begin insert (3) end insert begin insert   end insert Failure to make the records begin delete available, end delete begin insert available end insert during
business hours, within five days after the presentation of the written
authorization, may subject the person or entity having custody or
control of the records to liability for all reasonable expenses,
including attorney’s fees, incurred in any proceeding to enforce
this section.

begin delete

All reasonable costs incurred by any person or entity enumerated
above in making patient records available pursuant to this section
may be charged against the person whose written authorization
required the availability of the records.

“Reasonable cost,” as used in this section, shall include, but not
be limited to, the following specific costs: ten cents ($0.10) per
page for standard reproduction of documents of a size 81⁄2 by 14
inches or less; twenty cents ($0.20) per page for copying of
documents from microfilm; actual costs for the reproduction of
oversize documents or the reproduction of documents requiring
special processing which are made in response to an authorization;
reasonable clerical costs incurred in locating and making the
records available to be billed at the maximum rate of sixteen dollars
($16) per hour per person, computed on the basis of four dollars
($4) per quarter hour or fraction thereof; actual postage charges;
and actual costs, if any, charged to the witness by a third person
for the retrieval and return of records held by that third person.

Where the records are delivered to the attorney or the attorney’s
representative for inspection or photocopying at the record
custodian’s place of business, the only fee for complying with the
authorization shall not exceed fifteen dollars ($15), plus actual
costs, if any, charged to the record custodian by a third person for
retrieval and return of records held offsite by the third person.

end delete begin insert

(b) (1) Fees may be charged for paper or electronic copies of
medical records that are requested pursuant to this section, as
follows:

end insert begin insert

(A) A search and retrieval fee of thirty dollars ($30), plus a fee
of fifty cents ($0.50) per page for the first 25 pages and twenty-five
cents ($0.25) for each additional page.

end insert begin insert

(B) Fifty cents ($0.50) per page for reproduction of oversize
documents, diagnostic test results, or documents stored on
microfilm.

end insert begin insert

(C) If any portion of the medical record is stored in an electronic
health record, and the medical provider or employer described in
subdivision (a), or an agent thereof, elects, in its sole discretion,
to print the records, a fee of fifty cents ($0.50) per page for the
first 25 pages and twenty-five cents ($0.25) for each additional
page for the labor involved in ensuring compliance with the federal
Health Insurance Portability and Accountability Act of 1996 (42
U.S.C. Sec. 300gg).

end insert begin insert

(D) Actual postage charges. If the requesting party receives the
records electronically, postage shall not be charged, but a fee for
actual delivery costs, if any, shall apply.

end insert begin insert

(E) The actual cost, if any, charged to the record custodian by
a third party for retrieval and return of records held offsite by that
third party.

end insert begin insert

(2) Medical records requested pursuant to Section 1563 are
subject to the fees described in this section and are not subject to
the reasonable costs described in paragraph (1) of subdivision (b)
of Section 1563. Notwithstanding paragraph (1) of subdivision (b)
of Section 1563, Section 1563 applies to subpoena requests for
medical records.

end insert begin insert

(c) No later than December 1 of each year, the Director of the
California Department of Health Care Services shall examine the
need to increase or decrease the fees described in this section by
making a calculation based on the Consumer Price Index for All
Urban Consumers (United States city average, all items) published
by the United States Department of Labor, Bureau of Labor
Statistics, for the 12-calendar-month period commencing prior to
the first day of December. The Director may, in his or her sole
discretion, elect to increase or decrease the fees described in this
section based on this calculation. These fees shall not remain
unchanged for three consecutive years unless the Consumer Price
Index does not change for those three consecutive years. Any
changes to the rates shall be effective on January 1 following the
December 1 calculation and published on or before that date on
the Department of Health Care Services Internet Web site.

end insert begin insert

(d) A patient not represented by an attorney who wishes to
receive a copy, or examine all or part, of his or her medical record
shall submit a written request to the health care provider pursuant
to Section 123110 of the Health and Safety Code.

end insert

SEC. 2.  

Section 1563 of the Evidence Code is amended to read:

1563.  

(a) This article begin delete shall end delete begin insert does end insert not begin delete be interpreted to end delete require
tender or payment of more than one witness fee and one mileage
fee or other charge begin delete , end delete to a witness or witness’ business, unless there
is an agreement to the contrary between the witness and the
requesting party.

(b) All reasonable costs incurred in a civil proceeding by begin delete any end delete
begin insert a end insert witness begin delete which end delete begin insert who end insert is not a party with respect to the production
of all or any part of business records the production of which is
requested pursuant to a subpoena duces tecum begin delete may end delete begin insert shall end insert be charged
against the party serving the subpoena duces tecum.

(1) “Reasonable begin delete cost,” end delete begin insert costs, end insert begin insert ” end insert as used in this section, begin delete shall
include, but not be limited to, end delete begin insert includes end insert the following specific costs:
begin delete ten end delete

begin insert (A) end insert begin insert   end insert begin insert T end insert begin insert en end insert cents ($0.10) per page for standard reproduction of
documents of a size 81⁄2 by 14 inches or begin delete less; twenty end delete begin insert less. end insert

begin insert (B) end insert begin insert   end insert begin insert Twenty end insert cents ($0.20) per page for copying of documents
from microfilm; actual costs for the reproduction of oversize
documents or the reproduction of documents requiring special
processing which are made in response to a begin delete subpoena; reasonable end delete
begin insert subpoena. end insert

begin insert (C) end insert begin insert   end insert begin insert Reasonable end insert clerical costs incurred in locating and making
the records available to be billed at the maximum rate of
twenty-four dollars ($24) per hour per person, computed on the
basis of six dollars ($6) per quarter hour or fraction begin delete thereof; actual end delete
begin insert thereof. end insert

begin insert (D) end insert begin insert   end insert begin insert Actual end insert postage begin delete charges; and the end delete begin insert charges. end insert

begin insert (E) end insert begin insert   end insert begin insert The end insert actual cost, if any, charged to the witness by a third
begin delete person end delete begin insert party end insert for the retrieval and return of records held offsite by
that third begin delete person end delete begin insert party end insert .

begin insert

(2) Notwithstanding paragraph (1), if records are delivered
pursuant to a subpoena under this article to the attorney, the
attorney’s representative, or the deposition officer for inspection
or photocopying at the witness’ place of business, the cost for
complying with the subpoena shall not exceed fifteen dollars ($15),
plus the actual cost, if any, charged to the witness by a third party
for retrieval and return of records held offsite by that third party.
If the records are retrieved from microfilm, the reasonable costs,
as defined in paragraph (1), shall also apply.

end insert begin insert

(3) The fees described in paragraphs (1) and (2) do not apply
to a subpoena for the production of medical records, the fees for
which are governed by subdivision (b) of Section 1158.

end insert begin delete

(2)

end delete

begin insert (c) end insert  The requesting party, or the requesting party’s deposition
officer, shall not be required to pay begin delete those end delete begin insert the reasonable end insert costs or
any estimate thereof begin delete prior to end delete begin insert before end insert the time the records are
available for delivery pursuant to the subpoena, but the witness
may demand payment of costs pursuant to this section simultaneous
with actual delivery of the subpoenaed records, and until payment
is made, begin insert the witness end insert is under no obligation to deliver the records.

begin delete

(3)

end delete

begin insert (d) end insert  The witness shall submit an itemized statement for the costs
to the requesting party, or the requesting party’s deposition officer,
setting forth the reproduction and clerical costs incurred by the
witness. begin delete Should end delete begin insert If end insert the costs exceed those authorized in paragraph
(1) begin insert of subdivision (b), or in subdivision (b) of Section 1158 for the
reproduction of medical records end insert , or begin insert if end insert the witness refuses to
produce an itemized statement of costs as required by begin delete paragraph
(3), end delete begin insert this subdivision, end insert upon demand by the requesting party, or the
requesting party’s deposition officer, the witness shall furnish a
statement setting forth the actions taken by the witness in
justification of the costs.

begin delete

(4)

end delete

begin insert (e) end insert  The requesting party may petition the court in which the
action is pending to recover from the witness all or a part of the
costs paid to the witness, or to reduce all or a part of the costs
charged by the witness, pursuant to this subdivision, on the grounds
that those costs were excessive. Upon the filing of the petition the
court shall issue an order to show cause and from the time the
order is served on the witness the court has jurisdiction over the
witness. The court may hear testimony on the order to show cause
and if it finds that the costs demanded and collected, or charged
but not collected, exceed the amount authorized by this subdivision,
it shall order the witness to remit to the requesting party, or reduce
its charge to the requesting party by an amount equal to, the amount
of the excess. In the event that the court finds the costs excessive
and charged in bad faith by the witness, the court shall order the
witness to remit the full amount of the costs demanded and
collected, or excuse the requesting party from any payment of
costs charged but not collected, and the court shall also order the
witness to pay the requesting party the amount of the reasonable
expenses incurred in obtaining the order begin insert , end insert including attorney’s fees.
If the court finds the costs were not excessive, the court shall order
the requesting party to pay the witness the amount of the reasonable
expenses incurred in defending the petition, including attorney’s
fees.

begin delete

(5)

end delete

begin insert (f) end insert  If a subpoena is served to compel the production of business
records and is subsequently withdrawn, or is quashed, modified
or limited on a motion made other than by the witness, the witness
shall be entitled to reimbursement pursuant to paragraph (1) begin insert of
subdivision (b) end insert for all begin insert reasonable end insert costs incurred in compliance
with the subpoena to the time that the requesting party has notified
the witness that the subpoena has been withdrawn or quashed,
modified or limited. In the event the subpoena is withdrawn or
quashed, if those costs are not paid within 30 days after demand
therefor, the witness may file a motion in the court in which the
action is pending for an order requiring payment, and the court
shall award the payment of expenses and attorney’s fees in the
manner set forth in begin delete paragraph (4). end delete begin insert subdivision (e). end insert

begin delete

(6) Where the records are delivered to the attorney, the
attorney’s representative, or the deposition officer for inspection
or photocopying at the witness’ place of business, the only fee for
complying with the subpoena shall not exceed fifteen dollars ($15),
plus the actual cost, if any, charged to the witness by a third person
for retrieval and return of records held offsite by that third person.
If the records are retrieved from microfilm, the reasonable cost,
as defined in paragraph (1), shall also apply.

end delete begin delete

(c)

end delete

begin insert (g) end insert   begin delete When end delete begin insert If end insert the personal attendance of the custodian of a record
or other qualified witness is required pursuant to Section 1564, in
a civil proceeding, he or she shall be entitled to the same witness
fees and mileage permitted in a case where the subpoena requires
the witness to attend and testify before a court in which the action
or proceeding is pending and to any additional costs incurred as
provided by subdivision (b).