Amended in Senate June 22, 2015

Amended in Assembly April 21, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1337

Introduced by Assembly Member Linder

February 27, 2015

An act to amend Section 1158 of the Evidence Code, relating to evidence.

LEGISLATIVE COUNSEL’S DIGEST

AB 1337, as amended, Linder. Medical records: electronic delivery.

Existing law requires certain enumerated medical providers and medical employers to make a patient’s records available for inspection and copying by an attorney, or his or her representative, who presents a written authorization therefor, as specified.

This bill would require a medical begin delete provider or employer, or an agent thereof, end delete begin insert provider or attorney, as defined, end insert to provide an electronic copy of a medical record begin delete , when an electronic a copy is requested, if the medical record exists in digital or electronic format and the medical record can be delivered end delete begin insert that is maintained end insert electronically begin insert , upon request end insert . The bill would also require a medical provider begin delete or employer end delete to accept a prescribed authorization form once completed and signed by the patient begin delete , as specified, and would prohibit a medical provider or employer from conditioning treatment, payment, enrollment, or eligibility for benefits on the submission of an authorization for the release of records end delete begin insert if the medical provider determines that the form is valid end insert .

Vote: majority. Appropriation: no. Fiscal committee: no. 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)  begin insert For purposes of this section, “medical provider and
or employer” means 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. end insert

begin insert (b) end insert begin insert   end insert 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, begin insert to end insert a begin delete 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,
upon presentation of the written authorization, end delete begin insert end insert begin insert medical provider
or employer, the medical provider or employer end insert promptly make all
of the patient’s records under begin delete that person or entity’s end delete begin insert the medical
provider or employer’s end insert custody or control available for inspection
and copying by the attorney at law or his or her representative.

begin delete

(b)

end delete

begin insert (c) end insert  Copying of medical records shall not be performed by begin delete any end delete
begin insert a end insert medical provider or begin delete employer described in subdivision (a), end delete
begin insert employer, end insert 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.

begin delete

(c)

end delete

begin insert (d) end insert  Failure to make the records available during business hours,
within five days after the presentation of the written authorization,
may subject the begin delete person or entity end delete begin insert medical provider or employer end insert
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.

begin delete

(d)

end delete

begin insert (e) end insert  (1) All reasonable costs incurred by begin delete any person or entity
described in subdivision (a) end delete begin insert a medical provider or employer end insert in
making patient records available pursuant to this section may be
charged against the begin delete person whose written authorization required
the availability of end delete begin insert attorney who requested end insert the records.

(2) “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.

begin delete

(e)

end delete

begin insert (f) end insert  If 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.

begin delete

(f)

end delete

begin insert (g) end insert  If begin delete an electronic copy of end delete a medical record begin delete is requested, the end delete
begin insert requested pursuant to subdivision (b) is maintained electronically,
a end insert medical provider begin delete or employer described in subdivision (a), or
an agent thereof, end delete shall begin insert , upon request, end insert provide an electronic copy
of the begin delete requested end delete medical record begin delete if the medical record exists in a
digital or electronic format that can be delivered electronically. end delete begin insert in
the format requested by the requesting party, or, if that format is
unavailable, in another agreed-upon format. end insert

begin delete

(g) (1) A medical provider or employer described in subdivision
(a) shall not condition treatment, payment, enrollment, or eligibility
for benefits on the submission of an authorization form pursuant
to subdivision (a).

end delete begin delete

(2)

end delete

begin insert (h) end insert  A medical provider begin delete or employer described in subdivision
(a) end delete shall accept a signed and completed authorization form for the
disclosure of health information begin delete that is end delete begin insert if both of the following
conditions are satisfied: end insert

begin insert (1) end insert begin insert   end insert begin insert The medical provider determines that the form is valid. end insert

begin insert (2) end insert begin insert   end insert begin insert The form is end insert in substantially the following form:

 

AUTHORIZATION FOR DISCLOSURE OF HEALTH INFORMATION PURSUANT TO EVIDENCE CODE SECTION 1158 The undersigned authorizes the medical provider begin delete or employer end delete designated below to disclose specified medical records to a designated recipient. The medical provider begin delete or employer end delete shall not condition treatment, payment, enrollment, or eligibility for benefits on the submission of this authorization.

Medical provider begin delete or employer end delete : ________________ Patient name: ________________ Medical record number: ________________ Date of birth: ________________ Address: ________________ Telephone number: ________________ Email: ________________ Recipient name: ________________ Recipient address: ________________ Recipient telephone number: ________________ Recipient email: ________________ Health information requested (check all that apply): ___Records dated from ________ to ________. ___Radiology records: ________ images or films ________ reports begin insert ________digital/CD, if available end insert . ___Laboratory results dated begin delete from ________ to ________ end delete . begin insert ___Laboratory results regarding specific test(s) only (specify)________. end insert ___All records. ___Records related to a specific injury, treatment, or other purpose (specify): ________________. Note: records may include information related to mental health, alcohol or drug use, and HIV or AIDS. However, treatment records from mental health and alcohol or drug departments and results of HIV tests will not be disclosed unless specifically requested (check all that apply): ___Mental health records begin delete dated from ________ to ________ end delete . ___Alcohol or drug records begin delete dated from ________ to ________ end delete . ___HIV test results begin delete dated from ________ to _______ end delete . Method of delivery of requested records: ___Mail ___Pick up ___Electronic delivery begin insert , recipient email: end insert begin insert ________________ end insert This authorization is effective for one year from the date of the signature unless a different date is specified here: ________________. This authorization may be revoked upon written request, but any revocation will not apply to information disclosed before receipt of the written request. A copy of this authorization is as valid as the original. The undersigned has the right to receive a copy of this authorization. Notice: Once the requested health information is disclosed, any disclosure of the information by the recipient may no longer be protected under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). Patient signature*: ________________ Date: ________________ Print name: ________________ *If not signed by the patient, please indicate relationship to the patient (check one, if applicable): ___Parent or guardian of minor patient who could not have consented to health care. ___Guardian or conservator of an incompetent patient. ___Beneficiary or personal representative of deceased patient.