BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 1337
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|AUTHOR: |Linder |
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|VERSION: |June 22, 2015 |
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|HEARING DATE: |July 8, 2015 | | |
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|CONSULTANT: |Teri Boughton |
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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
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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.
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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 :
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|Assembly Floor: |77 - 0 |
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|Assembly Health Committee: |17 - 0 |
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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.
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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
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