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  







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            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.  








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          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.








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          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

                                      -- END --








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