BILL ANALYSIS Ó AB 1337 Page 1 Date of Hearing: May 5, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair AB 1337 (Linder) - As Amended April 21, 2015 SUBJECT: Medical records: electronic delivery. SUMMARY: Provides a standardized authorization form for medical records requests and requires a medical provider or employer to provide electronic copies of medical records, as specified. Specifically, this bill: 1)Requires medical providers and employers to accept a signed and completed authorization form for the disclosure of health information that is substantially similar to the form specified in this bill. 2)Requires a medical provider or employer to provide an electronic copy of a requested medical record if the medical record exists in a digital or electronic format that can be delivered electronically. 3)Precludes a medical provider or employer from conditioning treatment, payment, enrollment, or eligibility for benefits on the submission of an authorization form for medical records requests. AB 1337 Page 2 EXISTING LAW: 1)Requires health care providers to make a patient's medical records available for inspection and copying by an attorney, prior to the filing of any action or the appearance of a defendant in an action, when the attorney presents written authorization from a patient, or the patient's designated representative, as specified. 2)Prohibits a health care provider or employer from copying requested medical records when the requesting attorney has employed a professional photocopier, as specified. 3)Makes the person or entity having custody of the medical records liable for all reasonable expenses, including attorney's fees, incurred in any proceeding when the medical records are not made available within five days of the written request. 4)Permits all reasonable costs incurred by a health care provider in making patient records available to be charged against the person requesting the records. 5)Grants, under the federal Health Information Portability and Accountability Act (HIPAA), patients the right to obtain a copy of their medical records from any medical provider, with exceptions. FISCAL EFFECT: None AB 1337 Page 3 COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, health care facilities use individualized authorization forms used to release patient health records which vary widely depending on the individual health care provider, facility, or health plan or insurer. The author asserts that the use of provider-specific authorization forms is burdensome and results in delays in obtaining records, as patients and/or their representatives must contact individual providers to obtain their specific authorization forms in order to request records. The author states that this bill will resolve this problem by establishing a standardized medical request form which will provide a streamlined process for patients and health care facilities to request medical records. 2)BACKGROUND. Existing federal and California Law gives patients the right to access their medical records. According to the Health Consumer Alliance, medical records requests fall under various sections of California law, including the federal Patient Access to Health Records Act, the Confidentiality of Medical Information Act, and the Information Practices Act of 1977. The California Evidence Code also contains provisions that give special access to medical records to attorneys or their representatives with patient authorization. The federal HIPAA grants patients the right to copies of their own medical records. HIPAA allows providers 30 days to complete a records request. However, under California law, this time period is shorted to five days. HIPAA allows health care providers to withhold certain types of medical records, including psychotherapy notes, information the provider is compiling for lawsuits, and medical information the provider believes could reasonably endanger the life or safety of another person. AB 1337 Page 4 HIPAA precludes medical providers and employers from conditioning treatment, payment, enrollment, or eligibility for benefits on the signing of a medical records request authorization form. These provisions are intended to protect patients from retaliation if a medical provider or employer believes the requested medical records will be used in legal proceedings against the entity providing the records. This bill would implement these provisions in state law. 3)SUPPORT. According to the sponsor, the Consumer Attorneys of California (CAOC), the wide variance among authorization forms leads to delays in processing patient health records requests. CAOC states that a patient's attorney must contact the applicable health care facility, obtain a specific form, have the client sign that form, and then submit it back to the health facility, which is a burdensome process. CAOC asserts that health care facilities receive medical records request forms that differ from their own, which results in additional delays and costs for providers to process records requests. The California Hospital Association (CHA) states in support that this bill creates a uniform authorization that all hospitals and physicians will recognize to release medical records to an attorney prior to the filing of a lawsuit. CHA states that today, lawyers, physicians and hospitals make up their own forms, and having one easily-recognizable form will help hospitals and physicians identify when a request has been made. CHA also states that with a standardized form, hospitals and physicians will not have to analyze the form to make sure it complies with medical privacy laws. 4)PRIOR LEGISLATION. AB 2059 (Muratsuchi) of 2014 would have required a medical provider, as specified, or their employer to provide an electronic copy of the requested medical record when an attorney presents written authorization signed by the patient or patient's representative when the medical record exists in a digital or electronic format that can be delivered AB 1337 Page 5 electronically. AB 2059 was held on the Senate inactive file. 5)POLICY CONSIDERATIONS. This bill currently contains provisions to protect against blanket disclosure of sensitive patient records. Current language for the standardized form requires a requestor to check an additional box and specify a date range in order to obtain records relating to mental health, drugs and alcohol, and HIV test results. Records of this kind are subject to heightened confidentiality requirements imposed on physicians under the Lanterman-Petris-Short Act (LPS Act). The provisions of the LPS Act may require authorization not only from the patient, but also from other health care providers or administrative officers before information may be released to a third party, and requires the authorization to specify the use of the information and the specific information to be released. Additionally, some physicians may have internal policies to protect patient records from unauthorized disclosure that may require additional information or specificity from the requestor before they are comfortable releasing the records. The author may wish to consider amending the standardized form to ensure that providers have sufficient time and ability to clarify the scope and sensitivity of medical record requests before they are in violation of the time limits imposed by the law to respond to such requests. REGISTERED SUPPORT / OPPOSITION: Support Consumer Attorneys of California (sponsor) AB 1337 Page 6 California Hospital Association Opposition None on File. Analysis Prepared by:Rylan Gervase / HEALTH / (916) 319-2097