SB 588, as amended, Emmerson. Medical records: reproduction fees.
begin deleteExisting end deletelaw 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
begin delete 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 wouldend delete begin delete delete the provision that prohibits the fee from exceeding $15 dollars, plus actual costs, as specified,end delete
where the records are delivered to the attorney or the attorney’s representative for inspection or begin delete photocopyingend delete at the record custodian’s place of begin delete business. The bill would provide that an electronic copy of a patient’s medical record is required only under specified conditionsend delete.
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 1158 of the Evidence Code is amended
10Before the filing of
begin delete anyend delete action or the appearance of a
11defendant in an action,
begin delete ifend delete an attorney at lawor his or her
begin delete presents a writtenend delete
begin delete thereforend delete signed by an adult begin delete patient,end delete by the guardian or
17conservator of his or her person or estate, or, in the case of a minor,
18by a parent or guardian of the
begin delete minor,end delete or by the personal
19representative or an heir of a deceased
begin delete patient, or a copy thereof,
20a physician and surgeon, dentist, registered nurse, dispensing
P4 1optician, registered physical therapist, podiatrist, licensed
2psychologist, osteopathic physician and surgeon, chiropractor,
3clinical laboratory bioanalyst, clinical laboratory technologist, or
4pharmacist or pharmacy, duly licensed as such under the laws of
5the state, or a licensed hospital, shall make all of the patient’s
6records under that person or entity’s custody or control available
7for inspection and copying by the attorney at law or his or her
8representative, promptly upon the presentation of the written
10(1) Copying of medical records stored on paper shall not be
11performed by any medical provider or employer described in
12subdivision (a), or by an agent thereof, when the requesting
13attorney has employed a professional photocopier or anyone
14identified in Section 22451 of the Business and Professions Code
15as his or her representative to obtain or review the records on his
16or her behalf. The presentation of the authorization by the agent
17on behalf of the attorney shall be sufficient proof that the agent is
18the attorney’s representative.
19(2) An electronic copy of a patient’s medical record shall be
20required only if all of the following conditions are met:
21(A) The entire request can be reproduced from an electronic
22health record system.
23(B) The medical record is specifically requested to be delivered
24in electronic format.
begin delete(C)end delete begin delete end delete begin deleteThe medical record can be delivered electronically.end delete
33(3) Failure to make
begin delete theend delete records available during business hours, within five days after
35the presentation of the written authorization, may subject the
begin delete person to liability for all reasonable expenses, including
36or entity having custody or control of the recordsend delete
38attorney’s fees, incurred in any proceeding to enforce this
begin delete section.end delete
19(b) (1) Fees may be chargedend delete
34for paper or electronic copies of medical
begin delete records that as follows:
36are requested pursuant to this section,end delete
37(A) A search and retrieval fee of thirty dollars ($30), plus a fee
38of fifty cents ($0.50) per page for the first 25 pages and twenty-five
39cents ($0.25) for each additional page.
P6 1(B) Fifty cents ($0.50) per page for reproduction of oversize
2documents, diagnostic test results, or documents stored on
4(C) If any portion of the medical record is stored in an electronic
5health record, and the medical provider or employer described in
6subdivision (a), or an agent thereof, elects, in its sole discretion,
7to print the records, a fee of fifty cents ($0.50) per page for the
8first 25 pages and twenty-five cents ($0.25) for each additional
9page for the labor involved in ensuring compliance with the federal
10Health Insurance Portability and Accountability Act of 1996 (42
11U.S.C. Sec. 300gg).
13 Actual postage charges. If
begin delete the requesting party the records electronically, postage shall not
17be charged, but a fee for actual delivery costs, if any, shall apply.
19 The actual cost, if any, charged to the record custodian by
20a third party for retrieval and return of records held offsite by that
29 Medical records requested pursuant to Section 1563 are
30subject to the fees described in this section and are not subject to
31the reasonable costs described in paragraph (1) of subdivision (b)
32of Section 1563. Notwithstanding paragraph (1) of subdivision (b)
33of Section 1563, Section 1563 applies to subpoena requests for
36 No later than December 1 of each year, the Director of the
37California Department of Health Care Services shall examine the
38need to increase or decrease the fees described in this section by
39making a calculation based on the Consumer Price Index for All
40Urban Consumers (United States city average, all items) published
P7 1by the United States Department of Labor, Bureau of Labor
2Statistics, for the 12-calendar-month period commencing prior to
3the first day of December. The director may, in his or her sole
4discretion, elect to increase or decrease the fees described in this
5section based on this calculation. These fees shall not remain
6unchanged for three consecutive years unless the Consumer Price
7Index does not change for those three consecutive years. Any
8changes to the rates shall be effective on January 1 following the
9December 1 calculation and published on or before that date on
10the Department of Health Care Services Internet Web site.
12 A patient not represented by an attorney who
13receive a copy, or examine all or part, of his or her medical record
14shall submit a written request to the health care provider pursuant
15to Section 123110 of the Health and Safety Code.
Section 1563 of the Evidence Code is amended to read:
(a) This article does not require tender or payment of
18more than one witness fee and one mileage fee or other charge to
19a witness or witness’ business, unless there is an agreement to the
20contrary between the witness and the requesting party.
21(b) All reasonable costs incurred in a civil proceeding by a
22witness who is not a party with respect to the production of all or
23any part of business records the production of which is requested
24pursuant to a subpoena duces tecum shall be charged against the
25party serving the subpoena duces tecum.
26(1) “Reasonable costs,” as used in this section, includes the
27following specific costs:
28(A) Ten cents ($0.10) per page for standard reproduction of
29documents of a size 81⁄2 by 14 inches or less.
30(B) Twenty cents ($0.20) per page for copying of documents
31from microfilm; actual costs for the reproduction of oversize
32documents or the reproduction of documents requiring special
33processing which are made in response to a subpoena.
34(C) Reasonable clerical costs incurred in locating and making
35the records available to be billed at the maximum rate of
36twenty-four dollars ($24) per hour per person, computed on the
37basis of six dollars ($6) per quarter hour or fraction thereof.
38(D) Actual postage charges.
P8 1(E) The actual cost, if any, charged to the witness by a third
2party for the retrieval and return of records held offsite by that
4(2) Notwithstanding paragraph (1), if records are delivered
5pursuant to a subpoena under this article to the attorney, the
6attorney’s representative, or the deposition officer for inspection
7or photocopying at the witness’ place of business, the
begin delete costend delete
8 for complying with the subpoena shall not exceed
9fifteen dollars ($15), plus the actual cost, if any, charged to the
10witness by a third party for retrieval and return of records held
11offsite by that third party. If the records are retrieved from
12microfilm, the reasonable costs, as defined in paragraph (1), shall
14(3) The fees described in paragraphs (1) and (2) do not apply
15to a subpoena for the production of medical records, the fees for
16which are governed by subdivision (b) of Section 1158.
17(c) The requesting party, or the requesting party’s deposition
18officer, shall not be required to pay the reasonable costs or any
19estimate thereof before the time the records are available for
20delivery pursuant to the subpoena, but the witness may demand
21payment of costs pursuant to this section simultaneous with actual
22delivery of the subpoenaed records, and until payment is made,
23the witness is under no obligation to deliver the records.
24(d) The witness shall submit an itemized statement for the costs
25to the requesting party, or the requesting party’s deposition officer,
26setting forth the reproduction and clerical costs incurred by the
27witness. If the costs exceed those authorized in paragraph (1) of
28subdivision (b), or in subdivision (b) of Section 1158 for the
29reproduction of medical records, or if the witness refuses to produce
30an itemized statement of costs as required by this subdivision,
31upon demand by the requesting party, or the requesting party’s
32deposition officer, the witness shall furnish a statement setting
33forth the actions taken by the witness in justification of the costs.
34(e) The requesting party may petition the court in which the
35action is pending to recover from the witness all or a part of the
36costs paid to the witness, or to reduce all or a part of the costs
37charged by the witness, pursuant to this subdivision, on the grounds
38that those costs were excessive. Upon the filing of the petition the
39court shall issue an order to show cause and from the time the
40order is served on the witness the court has jurisdiction over the
P9 1witness. The court may hear testimony on the order to show cause
2and if it finds that the costs demanded and collected, or charged
3but not collected, exceed the amount authorized by this subdivision,
4it shall order the witness to remit to the requesting party, or reduce
5its charge to the requesting party by an amount equal to, the amount
6of the excess. In the event that the court finds the costs excessive
7and charged in bad faith by the witness, the court shall order the
8witness to remit the full amount of the costs demanded and
9collected, or excuse the requesting party from any payment of
10costs charged but not collected, and the court shall also order the
11witness to pay the requesting party the amount of the reasonable
12expenses incurred in obtaining the order, including attorney’s fees.
13If the court finds the costs were not excessive, the court shall order
14the requesting party to pay the witness the amount of the reasonable
15expenses incurred in defending the petition, including attorney’s
17(f) If a subpoena is served to compel the production of business
18records and is subsequently withdrawn, or is quashed, modified
19or limited on a motion made other than by the witness, the witness
20shall be entitled to reimbursement pursuant to paragraph (1) of
21subdivision (b) for all reasonable costs incurred in compliance
22with the subpoena to the time that the requesting party has notified
23the witness that the subpoena has been withdrawn or quashed,
24modified or limited. In the event the subpoena is withdrawn or
25quashed, if those costs are not paid within 30 days after demand
26therefor, the witness may file a motion in the court in which the
27action is pending for an order requiring payment, and the court
28shall award the payment of expenses and attorney’s fees in the
29manner set forth in subdivision (e).
30(g) If the personal attendance of the custodian of a record or
31other qualified witness is required pursuant to Section 1564, in a
32civil proceeding, he or she shall be entitled to the same witness
33fees and mileage permitted in a case where the subpoena requires
34the witness to attend and testify before a court in which the action
35or proceeding is pending and to any additional costs incurred as
36provided by subdivision (b).