BILL NUMBER: SB 588 INTRODUCED
BILL TEXT
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. Whenever, prior to (a)
Before the filing of any action or the appearance of
a defendant in an action, if 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 his, hers or its
that person or entity's custody or
control available for inspection and copying by the attorney at law
or his, or her, his or her
representative, promptly upon the presentation of the written
authorization.
(1) No copying may
Copying of medical records stored on paper shall not be
performed by any medical provider or employer enumerated
above, described in subdivision (a), 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.
(2) An electronic copy of a patient's medical record shall be
required only if all of the following conditions are met:
(A) The entire request can be reproduced from an electronic health
record system.
(B) The medical record is specifically requested to be delivered
in electronic format.
(C) The medical record can be delivered electronically.
(3) Failure to make the records
available, available 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.
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.
(b) (1) Fees may be charged for paper or electronic copies of
medical records that are requested pursuant to this section, as
follows:
(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.
(B) Fifty cents ($0.50) per page for reproduction of oversize
documents, diagnostic test results, or documents stored on microfilm.
(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).
(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.
(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.
(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.
(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.
(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.
SEC. 2. Section 1563 of the Evidence Code is amended to read:
1563. (a) This article shall does
not be interpreted to require tender or payment of
more than one witness fee and one mileage fee or other charge
, 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
any a witness which
who 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 may shall
be charged against the party serving the subpoena duces tecum.
(1) "Reasonable cost," costs, "
as used in this section, shall include, but not be
limited to, includes the following specific
costs: ten
(A) T en cents ($0.10)
per page for standard reproduction of documents of a size 81/2 by 14
inches or less; twenty less.
(B) 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 a
subpoena; reasonable subpoena.
(C) Reasonable 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 thereof; actual thereof.
(D) Actual postage
charges; and the charges.
(E) The actual cost, if any,
charged to the witness by a third person
party for the retrieval and return of records held offsite by
that third person party .
(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.
(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.
(2)
(c) The requesting party, or the requesting party's
deposition officer, shall not be required to pay those
the reasonable costs or any estimate thereof
prior to before 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, the witness is under no obligation to deliver the
records.
(3)
(d) 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. Should If the
costs exceed those authorized in paragraph (1) of subdivision
(b), or in subdivision (b) of Section 1158 for the reproduction of
medical records , or if the witness refuses to
produce an itemized statement of costs as required by
paragraph (3), this subdivision, 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.
(4)
(e) 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 ,
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.
(5)
(f) 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)
of subdivision (b) for all reasonable 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 paragraph (4).
subdivision (e).
(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.
(c)
(g) When If 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).