BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 1337 --------------------------------------------------------------- |AUTHOR: |Linder | |---------------+-----------------------------------------------| |VERSION: |June 22, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |July 8, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Teri Boughton | --------------------------------------------------------------- SUBJECT : Medical records: electronic delivery. SUMMARY : Creates an authorization for disclosure of health information form pursuant to the Evidence Code, and requires electronic medical records requested prior to the filing of any action or appearance of a defendant in an action to be provided electronically in the format requested or another agreed upon format. Existing law: 1)Requires, prior to the filing of any action or the appearance of a defendant in an action, medical providers or employers, as specified, to make all of the patient's records under his, her or its custody or control available for inspection and copying by the attorney at law or his or her representative, promptly upon the presentation of a written authorization signed by the patient or representative of the patient. 2)Describes as "medical providers" 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, or a licensed hospital. 3)Prohibits copying from being performed by any medical provider or employer, or by an agent thereof, when the requesting attorney has employed a professional photocopier or other specified individual as his or her representative to obtain or review the records on his or her behalf. Requires the presentation of the authorization by the agent on behalf of AB 1337 (Linder) Page 2 of ? the attorney to be sufficient proof that the agent is the attorney's representative. 4)Subjects the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney's fees, incurred for failure to make the records available, during business hours, within five days after the presentation of the written authorization. 5)Requires reasonable costs, as defined, incurred in making patient records available pursuant to existing law to be charged against the person whose written authorization required the availability of the records. 6)Defines under the Confidentiality of Medical Information Act, "provider of health care" as any person licensed or certified pursuant to specified sections of the Business and Professions Code; the Osteopathic Initiative Act or the Chiropractic Initiative Act; the Health and Safety Code; any clinic, health dispensary, or health facility licensed pursuant to a specified section of the Health and Safety Code. Excludes insurance institutions, as defined. 7)Establishes requirements for an authorization for the release of medical information by a provider of health care, health care service plan, pharmaceutical company, or contractor to be valid. 8)Prohibits a recipient of medical information pursuant to the authorization in 7) above from further disclosing that medical information except in accordance with a new authorization that meets requirements, as specified. 9)Makes any adult patient of a health care provider, any minor patient authorized to consent to medical treatment, and any patient representative entitled to inspect patient records upon presenting to the health care provider a written request for those records and upon payment of reasonable clerical costs incurred in locating and making the records available. AB 1337 (Linder) Page 3 of ? 10)Requires a clinic, health facility, home health agency, or hospice to prevent the unlawful disclosure of patient's medical records and permits the Department of Public Health to assess administrative penalties for violation of the law. 11)Prohibits a business from seeking and obtaining an individual's medical information for direct marketing purposes without disclosure and consent of the individual. 12)Limits the disclosure of a patient's medical information by medical providers, health plans, pharmaceutical companies and businesses organized for the purpose of maintaining medical information. 13)Provides for the confidentiality of the records of people who are voluntarily or involuntarily detained for psychiatric evaluation or treatment. 14)Prohibits a provider of health care, health care service plan, or contractor from releasing medical information to persons or entities who have requested that information and who are authorized by law to receive that information if the information specifically relates to the patient's participation in outpatient treatment with a psychotherapist, unless the person or entity requesting that information submits to the patient and to the a written request, signed by the person requesting the information that meets specified requirements. 15)Establishes the California Office of Health Information Integrity (CalOHI) to provide leadership, policy formulation, coordination, and direction for federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) implementation relative to state entities. 16)Establishes under federal law HIPAA standards for privacy of individually identifiable health information and security AB 1337 (Linder) Page 4 of ? standards for the protection of electronic protected health information, including, through regulations, that a HIPAA covered entity may not condition the provision to an individual of treatment, payment, enrollment in the health plan, or eligibility for benefits on the provision of an authorization, except under specified circumstances. This bill: 1)Permits reasonable costs incurred under this bill to be charged against the attorney who requested the records, not the person who authorized the request. 2)Requires if the records are maintained electronically and if the requesting party requests an electronic copy of such information, the health care provider to provide the requested medical records in the electronic form and format requested by the requesting party, if it is readily producible in such form and format; or, if not, in a readable electronic form and format as agreed to by the health care provider and the requesting party. 3)Requires a medical provider to accept a signed and completed authorization form for the disclosure of health information if the medical provider determines that the form is valid, and in substantially the form specified in this bill. 4)Includes in the authorization a disclosure that the medical provider shall not condition treatment, payment, enrollment, or eligibility for benefits on the submission of this authorization. 5)Includes in the authorization the following: 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. 6)Includes in the authorization that it is effective for one year from the date of the signature unless a different date is specified. 7)Indicates in the authorization that it may be revoked upon written request, but any revocation will not apply to information disclosed before receipt of the written request. AB 1337 (Linder) Page 5 of ? 8)Indicates that a copy of the authorization is as valid as the original. 9)Includes the following notice: Once the requested health information is disclosed, any disclosure of the information by the recipient may no longer be protected under the federal HIPAA. FISCAL EFFECT : This bill is keyed non-fiscal. PRIOR VOTES : ----------------------------------------------------------------- |Assembly Floor: |77 - 0 | |------------------------------------+----------------------------| |Assembly Health Committee: |17 - 0 | | | | ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, AB 1337 will create a standardized medical records request form. Currently, authorization forms vary widely between health care facilities, depending on the provider, hospital or plan. The process is very burdensome and the use of provider specific forms results in delay in obtaining records. The patient or their representative must contact the applicable health care facility, obtain a specific form, have the client sign that form, and then submit it to the health care facility. Often times, this must be completed for each health care facility in order to obtain a complete medical history. Health care facilities also find this process burdensome, often receiving a medical records request form that differs from their own or that a patient's representative drafted themselves resulting in a delay in processing the patient's health records request. By creating a standardized form, both providers and patients would be able to streamline their ability to access medical records and lessen any chances for unneeded delays wasting time and money. AB 1337 (Linder) Page 6 of ? 2)Access to Medical Records. In general, patient protections of medical records fall under two main bodies of law: federal HIPAA and CMIA in California. HIPAA and CMIA govern requirements generally on health care providers, health plans and their business associates. According to the Medical Board of California, California law establishes a patient's right to see and receive copies of his or her medical records, under specific conditions and/or requirements. The law only addresses the patient's request for copies of his or her own medical records and does not cover a patient's request to transfer records between health care providers or to provide the records to an insurance company or an attorney. The law provides that any adult patient, any minor patient who, by law, can consent to medical treatment or certain patient representative is entitled to inspect patient records upon written request to a physician and upon payment of reasonable clerical costs to make such records available. The physician must then permit the patient to view his or her records during business hours within five working days after receipt of the written request. The patient or patient's representative may be accompanied by one other person of his or her choosing. Prior to inspection or copying of records, physicians may require reasonable verification of identity, so long as this is not used oppressively or discriminatorily to frustrate or delay compliance with this law. The patient or patient's representative is entitled to copies of all or any portion of his or her records that he or she has a right to inspect, upon written request to the physician. The physician may charge a fee to defray the cost of copying, not to exceed 25 cents per page or 50 cents per page for records that are copied from microfilm, along with reasonable clerical costs. By law, a patient's records are defined as records relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient. Physicians must provide patients with copies within 15 days of receipt of the request. A physician may refuse a patient's request to see or copy his or her mental health records if the physician determines there is a substantial risk of significant adverse or detrimental consequences to the patient if such access were permitted. 3)Evidence Code Requirements. The subject of this bill and the Evidence Code provision it amends is the process governing requests for medical information made by an attorney representing a patient or the patient's representatives. Disclosures, response times and reasonable costs are defined under the Evidence Code. AB 1337 (Linder) Page 7 of ? There may be some overlap with disclosures required under HIPAA or CMIA. 4)Double referral. This bill is double referred. Should it pass out of this committee, it will be referred to the Senate Judiciary Committee. 5)Prior legislation. AB 2059 (Muratsuchi, 2014), would have required a health care provider to provide an electronic copy of an electronic medical record or electronic health record, when an electronic copy is requested, if the medical record exists in digital or electronic format and can be delivered electronically. This bill also would have authorized the provider to charge feels for processing the request. The bill was held on the Senate Floor. 6)Support. The Consumer Attorneys of California is the sponsor of this bill and indicates that they have been collectively working with the hospitals and providers to develop a standardized Evidence Code medical request form that hospitals, providers and patients can rely upon as an acceptable form. A uniform record request procedure will help providers and patients who seek medical records. The California Hospital Association writes in support that lawyers, physicians and hospitals make up their own forms today, which leads to a lot of paperwork crossing in the mail, multiple forms signed and delays in getting medical records to the attorneys who requested them. Having one easily recognizable form will help hospitals and physicians identify when a request has been made. 7)Definition of medical provider. The Confidentiality of Medical Information Act contains a definition of provider of healthcare services which encompasses more providers than the definition of medical provider contained in this bill. The author may wish to reference the Civil Code definition in existing law. SUPPORT AND OPPOSITION : Support: Consumer Attorneys of California (sponsor) California Hospital Association Oppose: None received -- END -- AB 1337 (Linder) Page 8 of ?