BILL NUMBER: SB 588 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 8, 2013
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) Existing Before the filing of an
action or the appea rance of a defendant in an action,
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, provide tha
t, where the records are delivered to the attorney
or the attorney's representative for inspection or
photocopying copying 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 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 fees .
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.
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. (a) As used in this section, the term "health care
provider" includes a patient's 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.
(b) Before the filing of any
an action or the appearance of a defendant in an
action, if an attorney at law , or his
or her representative presents a written ,
may inspect or copy a patient's medical records upon presentation of
a written authorization to a health care provider, as follows:
(1) The written authorization
therefor , or a copy thereof, shall be
signed by an adult patient, 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,
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 that
person or entity's custody or control available for inspection and
copying by the attorney at law or his or her representative, promptly
upon the presentation of the written authorization.
(1) Copying of medical records stored on paper shall not be
performed by any medical provider or employer 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. patient.
(2) An attorney requesting to inspect records under this
subdivision may employ a professional photocopier, or any person or
entity identified in Section 22451 of the Business and Professions
Code, as his or her representative to obtain or review the records
stored on paper on his or her behalf. The presentation of the written
authorization by the agent on behalf of the attorney shall be
sufficient to prove that the agent is the attorney's representative.
(3) Failure to make the records stored on
paper available for inspection or copying 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 health care
provider to liability for all reasonable expenses, including
attorney's fees, incurred in any proceeding to enforce this
section. subdivision.
(4) If any portion of a patient's medical records is stored on
paper and delivered to the attorney or the attorney's representative
for inspection or copying at the record custodian's place of
business, the fee for complying with the authorization shall be
fifteen dollars ($15), plus actual costs, if any, charged to the
record custodian by a third party for retrieval and return of records
held offsite by that third party.
(5) If any portion of a patient's medical records is stored in an
electronic health record that is inaccessible for inspection or
copying, the health care provider, or an agent thereof, in its sole
discretion, may elect to provide a paper copy of the electronic
records for inspection or copying by the attorney, or his or her
representative, and the health care provider may charge 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 for the labor involved in ensuring
compliance with the federal Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. Sec. 300gg).
(b) (1) Fees may be charged
(c) Before the filing of an action, or
the appearance of a defendant in an action, an attorney at
law, or his or her representative, may request a health care
provider, upon presentation of a written authorization form
prescribed by paragraph (1) of subdivision (b), to provide paper or
electronic copies of the patient's medical records, as
follows:
(1) Electronic copies of the patient's
medical records that are stored electronically shall be provided if
all of the following conditions are met:
(A) The entire request can be reproduced from an electronic health
record.
(B) The medical record is specifically requested to be delivered
in electronic format.
(C) The medical record can be delivered electronically.
(2) The health care provider shall
charge a fee for the providing of paper or
electronic copies of the patient's medical
records that are requested pursuant to this section,
records, 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)
(C) Actual postage charges , if any, incurred by
the health care provider to deliver the paper records by mail to the
requesting attorney, or his or her representative . If
the requesting party receives the records are produced
electronically, postage shall not be charged, but a fee for
actual delivery costs, if any, shall apply.
(E)
(D) 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)
(3) Failure to provide paper or electronic copies of the patient's
medical record within 30 days after the presentation of the written
authorization and request for copies, or within 60 days if the
records are stored offsite, may subject the health care provider to
liability for all reasonable expenses, including attorney's fees,
incurred in any proceeding to enforce this subdivision.
(d) 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)
(e) 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)
(f) 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 does not 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 a
witness 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 shall be charged against the party
serving the subpoena duces tecum.
(1) "Reasonable costs," as used in this section, includes the
following specific costs:
(A) Ten cents ($0.10) per page for standard reproduction of
documents of a size 81/2 by 14 inches or 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.
(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.
(D) Actual postage charges.
(E) 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.
(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
reasonable costs 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.
(c) The requesting party, or the requesting party's deposition
officer, shall not be required to pay the reasonable costs or any
estimate thereof 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.
(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. 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 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.
(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.
(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 subdivision
(e).
(g) 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).