BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 588
AUTHOR: Emmerson
AMENDED: April 8, 2013
HEARING DATE: April 17, 2013
CONSULTANT: Marchand
SUBJECT : Medical records: reproduction fees.
SUMMARY : Revises provisions of law governing disclosure of
medical records to attorneys prior to the filing of any action
by (1) increasing the fees that may be charged for copying these
records, including distinguishing costs for paper and electronic
medical records; (2) deleting the prohibition on medical
providers performing the copying when the attorney has employed
a professional copier; and (3) only permitting the attorney to
employ a professional photocopying service when the records are
in paper form.
Existing law:
1.Requires health care providers to make a patient's medical
records available for inspection and copying by an attorney or
his or her representative whenever, prior to the filing of any
action or the appearance of a defendant in an action, the
attorney presents a written authorization from a patient or
patient's representative.
2.Prohibits copying from being performed by any medical
provider, or by an agent of the health care provider, when the
requesting attorney has employed a professional photocopier or
anyone exempt from being required to register as a
professional photocopier, as specified.
3.Permits all reasonable costs incurred by a health care
provider in making patient records available to be charged
against the person whose written authorization required the
availability of the records.
4.Defines "reasonable cost" as including, but not limited to,
$0.10 per page for standard sized documents, $0.20 per page
for microfilm, actual costs for oversize documents or the
reproduction of documents requiring special processing, and
$16 per hour per person for clerical costs incurred in
locating and making the records available.
Continued---
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5.Limits the fees, where the records are delivered to the
attorney for inspection or photocopying at the record
custodian's place of business, to $15, plus actual costs, if
any, charged to the record custodian by a third party for
retrieval and return of the records held offsite by the third
party.
6.Specifies reasonable costs that may be charged against a party
serving a subpoena for evidence, including $0.10 per page for
standard size documents; $0.20 for microfilm; actual costs for
the reproduction of oversize documents or those requiring
special processing; and up to $24 per hour per person for
clerical costs incurred in locating and making the records
available.
This bill:
1.Revises provisions of law governing disclosure of medical
records to attorneys prior to the filing of any action or the
appearance of a defendant in an action by deleting a provision
that prohibits any copying to be performed by the medical
provider, as defined, or by an agent of the provider, when the
requesting attorney has employed a professional photocopier or
any person or entity who is exempted from having to register
as a professional photocopier under specified provisions of
law.
2.Permits an attorney to employ a professional photocopier to
obtain or review the medical records, but only those that are
stored on paper, and maintains the existing fee of $15, plus
actual costs charged to the custodian for retrieval and return
of any paper records held offsite by a third party.
3.Limits the provision of law that subjects a health provider to
liability for failure to make records available within five
business days to only records stored on paper.
4.Deletes provisions of law specifying what costs can be charged
by the medical provider for making records available,
including deleting limitations of $0.10 per page for standard
size reproduction, $0.20 per page for microfilm, actual costs
for oversize documents, and up to $16 per hour per person for
clerical costs in locating and making the records available.
5.Specifies that if any portion of a patient's medical records
is stored in an electronic health record that is inaccessible
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for inspection or copying, the health care provider, in its
sole discretion, is permitted to elect to provide a paper copy
of the electronic records for inspection or copying, and
permits the health care provider to charge a search and
retrieval fee of $30, plus a fee of $0.50 per page for the
first 25 pages, and $0.25 for each additional page for labor
involved in ensuring compliance with the federal Health
Insurance Portability and Accountability Act of 1996 (HIPAA).
6.Permits an attorney, before the filing of an action or the
appearance of a defendant in an action, to request a health
care provider to provide paper or electronic copies of the
patient's medical records pursuant to a written authorization
form, as follows:
a. Requires electronic copies of the patient's medical
records that are stored electronically to be provided if
the entire request can be reproduced from an electronic
health record, the medical record is specifically requested
to be delivered in electronic format, and the medical
record is able to be delivered electronically.
b. Requires the health care provider to charge a fee for
the providing of paper or electronic copies of a patient's
medical records as follows: a search and retrieval fee of
$30, plus $0.50 per page for the first 25 pages and $0.25
for each additional page; $0.50 per page for reproduction
of oversize documents diagnostic test results, or documents
stored on microfilm; actual postage charges, if any; and
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.
c. Specifies that failure to provide 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 requirement.
7.Requires medical records requested pursuant to provisions of
existing law governing subpoenas to be subject to the fees
described in this bill, and not subject to the reasonable
costs described in the provision of existing law governing
subpoenas.
8.Requires the Director of the California Department of Health
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Care Services (DHCS) to examine the need to increase or
decrease the fees described in this bill by making a
calculation based on the Consumer Price Index for All Urban
Consumers, as specified. Permits the Director of DHCS, in his
or her sole discretion, to elect to increase or decrease the
fees in this bill based on this calculation.
9.Prohibits fees in this bill from remaining unchanged for three
consecutive years unless the Consumer Price Index does not
change for those three consecutive years.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. In 1986, specific fees were established
for the production of paper medical records to an attorney or
their agent before the filing of a lawsuit under two
circumstances: (1) where the attorney or attorney's agent was
going to inspect and copy the medical records, and (2) where
the attorney or attorney's agent requested a physical copy of
the medical records. However, these provisions of law did not
in any way contemplate the production of electronic health
records, which are quickly becoming ubiquitous in the medical
community. SB 588 attempts to address these issues by adding
language regarding electronic health records and the
appropriate fees, and increasing the ten cents per page
existing fee for the production of medical records. It is
important to note that these provisions of law only address
medical records requested by attorneys or attorneys' agents
and does not affect rates for patients requesting their own
medical records. Additionally, section, a separate provision
of law sets fees for the production of records produced in
response to a subpoena. However, the rates in this provision
of law do not take into account HIPAA requirements or the
requisite training, expense and work involved in maintaining
patient confidentiality while still producing the requested
medical records. SB 588 also addresses the subpoenaed records
provision by providing that any medical records produced in
response to a subpoena under that provision of law shall be
produced for the same fees governing the copying and
inspection of medical records prior to the filing of a
lawsuit. Of particular importance is that SB 588 does not
interfere with the attorney or attorney's agent inspecting a
medical record before the filing of a lawsuit. The bill does,
however, acknowledge the cost of maintaining HIPAA required
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patient confidentiality while providing attorneys and their
agents a reasonable manner in which to access medical records.
2.Double referral. This bill is double referred. Should it
pass out of this committee, it will be referred to the Senate
Judiciary Committee.
3.Prior legislation. This bill is substantially similar to SB
1543 (Emmerson) of 2012, though SB 1543 entirely eliminated
the ability of attorneys or their agents to make their own
copies, while this bill would still allow attorney's or their
agents to make their own copies of paper records. SB 1543 was
never heard in a committee.
4.Support. This bill is sponsored by HealthPort, which
describes itself as a nationwide release-of-information
company. HealthPort states that in the last 30 years,
medicine, law and technology have all evolved to allow us to
create, store and transmit medical records electronically.
However, the law governing the disclosure of medical records
to attorneys has not been amended since 1987, and therefore
fails to address how electronic health records are to be
treated despite federal mandates that medical records be
stored and transmitted electronically. HealthPort states that
one problem is that current law requires attorneys and their
agents to have the ability to inspect medical records and make
their own copies, yet electronic health records are stored in
systems on computers and in clouds with vast amounts of data
not relevant to the attorney's request or authorization.
Mandating a medical provider allow direct access to a
hospital's health records could open up confidentiality issues
under HIPAA and related laws. HealthPort also points out that
confidentiality laws require security for electronic records,
which come with a cost, and therefore a price increase for
copying records and for providing access is warranted.
HealthPort also supports the amendment of the law governing
subpoenaed records. HealthPort states that while California
treats all records subject to subpoena equally, medical
records require confidentiality that other records do not, yet
the fees in law are the same. HealthPort asserts that now is
the time to bring these provisions of law current with the
practice of medical records disclosure.
5.Opposition. The California Association of Legal Support
Professionals (CALSPro) states in opposition that this bill
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amends the statutes in the Evidence Code relating to the
copying of medical records, usually in the litigation context.
The members of CALSPro perform this function, on behalf of
lawyers who subpoena records. CALSPro states that existing
law clearly prohibits medical providers, or their agents, from
copying records if a registered photocopier has been retained
by a lawyer to copy them. This ensures that a disinterested
third party can copy the records, to protect litigants who
need accurate, complete records. According to CALSPro, in
spite of the clear language in the statute, its members are
routinely denied access to records by health care providers or
their agents, which frustrates the public policy of the law.
CALSPro states that this bill proposes to preserve the
disinterested third party system for paper records only, while
permitting health facilities and their agents to copy records
if any portion of those records is electronic. CALSPro states
that the bill also provides a very significant fee increase
for providers or their agents to copy records, which it
believes may have the unintended consequence of encouraging
providers to deny access to records.
The Western Center on Law and Poverty (WCLP) also opposes this
bill, stating that this bill seeks to raise fees for retrieval
of medical records if any portion of the patient's medical
records is stored electronically to an initial fee of $30,
plus $0.50 per page for the first 25 pages, and $0.25 for each
additional page. WCLP states that legal services advocates
who work with low-income clients on cases involving the
Medi-Cal program would be unduly harmed by an increase in
costs. Other affect programs for which patients might need
records include Supplemental Security Income and Social
Security Disability Insurance, which serve low-income
Californians, many who survive on less than $850 per month.
If enacted, this bill would require legal aid attorneys and
their clients to pay significant more to prove their cases or
appeal decisions against them.
SUPPORT AND OPPOSITION :
Support: HealthPort (sponsor)
BACTES
Trackstar
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Oppose: California Association of Legal Support Professionals
Western Center on Law and Poverty
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