Amended in Senate April 8, 2013

Senate BillNo. 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 amended, Emmerson. Medical records: reproduction fees.

(1) begin deleteExisting end deletebegin insertBefore the filing of an action or the appearance of a defendant in an action, existing end insertlaw 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 wouldbegin 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 deletebegin delete delete the provision that prohibits the fee from exceeding $15 dollars, plus actual costs, as specified,end deletebegin insert provide that,end insert where the records are delivered to the attorney or the attorney’s representative for inspection orbegin delete photocopyingend deletebegin insert copyingend insert at the record custodian’s place ofbegin delete business. The bill would provide that an electronic copy of a patient’s medical record is required only under specified conditionsend deletebegin insert business and if any portion of the patient’s medical records is stored on paper, the fee for complying with the authorization would be $15 dollars, plus actual costs, as specified. If any portion of the records is stored electronically and is inaccessible for inspection or copying, the bill would authorize the health care provider, in its sole discretion, to produce a paper copy of the electronic records for the attorney to inspect and copy, and to charge specified feesend insert.

begin insert

The bill would delete the provision that authorizes all reasonable costs to be charged against the person whose written authorization required the production of copies of the records, and would instead require an attorney who requests that the health care provider provide paper or electronic copies of the medical records to pay certain fees, 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 require the health care provider to provide electronic copies of a patient’s medical records that are stored electronically, under specified conditions.

end insert

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:

P3    1

SECTION 1.  

Section 1158 of the Evidence Code is amended
2to read:

3

1158.  

(a) begin insertAs used in this section, the term “health care
4provider” includes a patient’s end insert
begin insertphysician and surgeon, dentist,
5registered nurse, dispensing optician, registered physical therapist,
6podiatrist, licensed psychologist, osteopathic physician and
7surgeon, chiropractor, clinical laboratory bioanalyst, clinical
8laboratory technologist, or pharmacist or pharmacy, duly licensed
9as such under the laws of the state, or a licensed hospital.end insert

10begin insert(b)end insertbegin insertend insertBefore the filing ofbegin delete anyend deletebegin insert anend insert action or the appearance of a
11defendant in an action,begin delete ifend delete an attorney at lawbegin insert, end insertor his or her
12representativebegin delete presents a writtenend deletebegin insert, may inspect or copy a patient’s
13medical records upon presentation of a written authorization to
14a health care provider, as follows:end insert

15begin insert(1)end insertbegin insertend insertbegin insertThe writtenend insert authorizationbegin delete thereforend deletebegin insert, or a copy thereof, shall
16beend insert
signed by an adultbegin delete patient,end deletebegin insert patient;end insert 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 thebegin delete minor,end deletebegin insert minor;end insert 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
9authorization.end delete

begin delete

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.

end delete

25begin delete(C)end deletebegin deleteend deletebegin deleteThe medical record can be delivered electronically.end deletebegin insert patient.end insert

begin insert

26(2) An attorney requesting to inspect records under this
27subdivision may employ a professional photocopier, or any person
28or entity identified in Section 22451 of the Business and Professions
29Code, as his or her representative to obtain or review the records
30stored on paper on his or her behalf. The presentation of the
31written authorization by the agent on behalf of the attorney shall
32be sufficient to prove that the agent is the attorney’s representative.

end insert

33(3) Failure to makebegin delete theend delete recordsbegin insert stored on paperend insert availablebegin insert for
34inspection or copyingend insert
during business hours, within five days after
35the presentation of the written authorization, may subject thebegin delete person
36or entity having custody or control of the recordsend delete
begin insert health care
37providerend insert
to liability for all reasonable expenses, including
38attorney’s fees, incurred in any proceeding to enforce thisbegin delete section.end delete
39begin insert subdivision.end insert

begin insert

P5    1(4) If any portion of a patient’s medical records is stored on
2paper and delivered to the attorney or the attorney’s representative
3for inspection or copying at the record custodian’s place of
4business, the fee for complying with the authorization shall be
5fifteen dollars ($15), plus actual costs, if any, charged to the record
6custodian by a third party for retrieval and return of records held
7offsite by that third party.

end insert
begin insert

8(5) If any portion of a patient’s medical records is stored in an
9electronic health record that is inaccessible for inspection or
10copying, the health care provider, or an agent thereof, in its sole
11discretion, may elect to provide a paper copy of the electronic
12records for inspection or copying by the attorney, or his or her
13representative, and the health care provider may charge a search
14and retrieval fee of thirty dollars ($30), plus a fee of fifty cents
15($0.50) per page for the first 25 pages and twenty-five cents ($0.25)
16for each additional page for the labor involved in ensuring
17compliance with the federal Health Insurance Portability and
18Accountability Act of 1996 (42 U.S.C. Sec. 300gg).

end insert
begin delete

19(b) (1) Fees may be charged

end delete

20begin insert(c)end insertbegin insertend insertbegin insertBefore the filing of an action, or the appearance of a
21defendant in an action, an attorney at law, or his or her
22representative, may request a health care provider, upon
23presentation of a written authorization form prescribed by
24paragraph (1) of subdivision (b), to provide paper or electronic
25copies of the patient’s medical records, as follows:end insert

26begin insert(1)end insertbegin insertend insertbegin insertElectronic copies of the patient’s medical records that are
27stored electronically shall be provided if all of the following
28conditions are met:end insert

begin insert

29(A) The entire request can be reproduced from an electronic
30health record.

end insert
begin insert

31(B) The medical record is specifically requested to be delivered
32in electronic format.

end insert
begin insert

33(C) The medical record can be delivered electronically.

end insert

34begin insert(2)end insertbegin insertend insertbegin insertThe health care provider shall charge a fee end insertforbegin insert the providing
35ofend insert
paper or electronic copies ofbegin insert the patient’send insert medicalbegin delete records that
36are requested pursuant to this section,end delete
begin insert records,end insert as follows:

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
3microfilm.

begin delete

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).

end delete
begin delete

12(D)

end delete

13begin insert(C)end insert Actual postage chargesbegin insert, if any, incurred by the health care
14provider to deliver the paper records by mail to the requesting
15attorney, or his or her representativeend insert
. Ifbegin delete the requesting party
16receivesend delete
the recordsbegin insert are producedend insert electronically, postage shall not
17be charged, but a fee for actual delivery costs, if any, shall apply.

begin delete

18(E)

end delete

19begin insert(D)end insert The actual cost, if any, charged to the record custodian by
20a third party for retrieval and return of records held offsite by that
21third party.

begin delete

22(2)

end delete
begin insert

23(3) Failure to provide paper or electronic copies of the patient’s
24medical record within 30 days after the presentation of the written
25authorization and request for copies, or within 60 days if the
26records are stored offsite, may subject the health care provider to
27liability for all reasonable expenses, including attorney’s fees,
28incurred in any proceeding to enforce this subdivision.

end insert

29begin insert(d)end insert 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
34medical records.

begin delete

35(c)

end delete

36begin insert(e)end insert 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.

begin delete

11(d)

end delete

12begin insert(f)end insert A patient not represented by an attorney who wishes to
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.

16

SEC. 2.  

Section 1563 of the Evidence Code is amended to read:

17

1563.  

(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 812 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
3third party.

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, thebegin delete costend delete
8begin insert reasonable costsend insert 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
13also apply.

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
16fees.

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).



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