BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1337 (Linder)
          Version: July 22, 2015
          Hearing Date: July 14, 2015
          Fiscal: No
          Urgency: No
          NR


                                        SUBJECT
                                           
                        Medical records:  electronic delivery

                                      DESCRIPTION  

          This bill would require a medical provider, as defined, to  
          provide an electronic copy of a medical record that is  
          maintained electronically, upon request. This bill would also  
          create a standard form for the disclosure of health information,  
          and require a medical provider to accept that form once  
          completed and signed by the patient, if the medical provider  
          determines that the form is valid. This bill would make other  
          clarifying and technical changes. 

          (This analysis reflects author's amendments to be offered in  
          Committee.)

                                      BACKGROUND  

          Existing law requires specified health care providers to  
          provide, within five days, medical records for inspection when  
          authorized by a patient and requested by an attorney prior to  
          the filing of an action.  (See Evid. Code Sec. 1158.) Ten  
          states, including Illinois, Maine, and Texas, have enacted  
          statutes for electronic discovery of medical records.  
          California's existing provision that authorizes the discovery of  
          medical records was enacted in 1968, before electronic medical  
          records came into existence.  This bill, sponsored by the  
          Consumer Attorneys of California, seeks to update the Evidence  
          Code to expressly allow for discovery of electronic medical  
          records and would create a standardized form for medical  








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          requests.    

                                CHANGES TO EXISTING LAW
           
           1.Existing law  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 an adult patient, the  
            guardian or conservator of his or her person or estate, or the  
            personal representative or an heir of a deceased patient.   
            (Evid. Code Sec. 1158.)

             Existing law  prohibits a health care provider or their agent  
            from copying requested medical records when the requesting  
            attorney has employed a professional photocopier registered,  
            or anyone exempt from being required to register as a  
            professional photocopier, as specified.  (Evid. Code Sec.  
            1158.)

             Existing law  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 during business hours within  
            five days of the written request. (Evid. Code Sec. 1158.)

             Existing law  limits the fees, where the records are delivered  
            to the attorney for inspection or photocopying at the record  
            custodian's place of business, to $15, plus actual costs, if  
            any, charged to the witness by a third person for the  
            retrieval and return of records held by that third person.   
            (Evid. Code Sec. 1158.)

             This bill  would apply the above provisions to a "medical  
            provider" defined as a 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.

             This bill  would additionally require a medical provider to  
            provide a medical record that is maintained electronically in  
            the format requested by the requesting party, or, if that  







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            format is unavailable, in another agreed-upon format upon  
            request.

           2.Existing law  authorizes all reasonable costs incurred by a  
            health care provider in making patient records available to be  
            paid by the person whose written authorization required the  
            availability of the records.  (Evid. Code Sec. 1158.)

             This bill  would instead assign reasonable costs incurred to be  
            charged against the attorney who requested the records.

          3.This bill  would create a medical record authorization request  
            form and require a medical provider to accept a signed and  
            completed authorization form if the medical provider  
            determines that the form is valid, and it is in substantially  
            the form specified in this bill.

             This bill  would prohibit the medical provider from  
            conditioning treatment, payment, enrollment, or eligibility  
            for benefits on the submission of this authorization.

             This bill  would provide on the authorization form that  
            treatment records from mental health and alcohol or drug  
            departments and results of HIV tests will not be disclosed  
            unless specifically requested.
             
             This bill  would specify in the authorization that the  
            authorization may be revoked upon written request, but any  
            revocation will not apply to information disclosed before  
            receipt of the written request, and would provide that a copy  
            of the authorization is as valid as the original. 

             This bill  would include the following notice in the  
            authorization: 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 (HIPAA).

             This bill  would make other clarifying and technical changes.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 







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            Health care facilities have individualized authorization forms  
            in order to release a patient's health records.  These forms  
            vary widely depending on the individual health care provider,  
            hospital, plan, etc.  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. This process must be completed for each health  
            care facility in order to obtain a complete copy of the  
            patient's health records. 
                      
            AB 1337 looks to solve this problem by working with interested  
            parties to draft a standardized medical request form, which  
            will provide a streamlined process for patients and heath care  
            facilities to request medical records.

           2.Electronic medical records
           
          An electronic medical record (EMR) is a digital record about an  
          individual patient or a practice. EMRs are capable of being  
          shared across different health care settings and eliminate the  
          need to track down a patient's previous paper medical record.   
          Arguably, they may also assist in ensuring data is accurate and  
          legible. As more health care providers have turned away from a  
          paper record to an electronic one, producing medical records for  
          litigation has encountered new challenges, some of which are  
          noted in this excerpt from a recent law review article: 

            When a lawyer requests a patient's paper medical records, the  
            healthcare provider simply makes a photocopy of the binder  
            containing the medical records and produces that copy to the  
            requesting lawyer. However, there has been a recent trend  
            toward adoption of electronic medical records. A 2011 survey  
            by SK&A queried 237,562 U.S. medical providers and found that  
            40.4 percent of physician offices use electronic medical  
            records. The American Recovery and Reinvestment Act of 2009  
            also established funding through Medicare and Medicaid to  
            subsidize healthcare providers switching to electronic medical  
            records. As electronic medical records continue to be widely  
            adopted across the United States, lawyers using those records  
            have faced a number of new challenges.

            In 2007, a patient filed a malpractice suit against Northshore  







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            University Health System and requested all records related to  
            the patient's treatment. However, the hospital had difficulty  
            fulfilling the request. The electronic medical record system  
            it was using had no print feature, so staff had to take  
            screenshots of every page of the record from the computer.  
            When printed to paper, this information filled four banker  
            boxes and was difficult to interpret. The court then ordered  
            the hospital to create a read-only electronic version of the  
            records to be given to the plaintiff. This was a novel issue  
            for the hospital. It had to work closely with the electronic  
            medical records vendor to produce a digital copy of the  
            records. Unfortunately, this did not solve all the electronic  
            discovery problems, and the case continued for at least three  
            more years. (Jeffery Masor, Electronic Medical Records and  
            E-Discovery: With New Technology Come New Challenges, 5  
            Hastings Sci. & Tech. L.J. 245 (2013).)

          Taking into account these and other challenges, this bill would  
          require that records be produced electronically if it is already  
          in an electronic format.  Further, this bill would allow the  
          person requesting the document to determine what format he or  
          she would like the record in, and the medical provider would  
          have to produce it in that format if available.  Medical  
          providers who could not satisfy a request regarding format would  
          need to agree with the requesting party as to a different  
          format.  This will arguably ensure that parties will not be  
          forced to purchase new software for record requests and allows  
          parties to tailor record production to their specific needs.  In  
          addition, allowing the exchange of electronic records will  
          arguably be more economical for parties because it significantly  
          reduces the time and cost associated with traditional medical  
          record production.  

           3.Standardized medical authorization form for the disclosure of  
            health information
           
          This bill would create a standard form for the disclosure of  
          health information, and require a medical provider to accept  
          that form once completed and signed by the patient, if the  
          medical provider determines that the form is valid.  The  
          Consumer Attorneys of California, sponsor, argue that a  
          standardized form will significantly streamline the process for  
          hospitals, providers, and parties. The Consumer Attorneys write:

            Hospitals and providers have various individualized  







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            authorization forms which are required in order to release a  
            patient's health records. These forms vary widely depending on  
            the individual health care provider, hospital, plan, etc. The  
            process is very burdensome and confusing and the use of  
            provider specific forms results in delay in obtaining records.  
            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 to the health care facility. This  
            process must be completed for each health care facility in  
            order to obtain a complete copy of the patient's health  
            records. 

            Hospitals and providers also find this process burdensome.  
            Facilities often receive a medical records request form that  
            differs from their own or that a patient's representative  
            drafted themselves. This may also result in a delay and  
            additional costs for the hospitals or providers in processing  
            the patient's health records request.

          As drafted, this bill would ensure an arguably appropriate  
          amount of flexibility which should help eliminate much of the  
          burden hospitals, providers, and parties experience with  
          requests for medical records.  Specifically, this bill would not  
          prohibit the use of any existing forms or requests, and would  
          also not require parties to use the exact form created by this  
          bill.  Instead, the bill would require a medical provider to  
          produce records if the form used is substantially similar to the  
          one provided in this bill.  In support, the California Hospital  
          Association writes:

            Today, lawyers, physicians and hospitals make up their own  
            forms.  This leads to a lot of paperwork crossing in the mail,  
            clients/patients having to sign multiple forms, 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 pursuant to  
            Evidence Code Section 1158, which requires a quick turnaround  
            time?The recipient of the standard form will know immediately  
            that the authorization complies with the requirements of both  
            HIPAA and state law; the physician's office or hospital  
            medical records department won't have to analyze the form to  
            ensure it complies with the law. 

          Staff further notes that, with the exception of allowing the  
          production of electronic records, this bill does not change any  







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          of the substantive law in Evidence Code Section 1158.  Rather,  
          it revises and recasts the Code section to better reflect how,  
          in practice, records are currently requested and produced.  
          Specifically, the bill would define a medical provider to mean a  
          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; and would  
          appropriately charge all reasonable costs for the production of  
          documents to an attorney, who may then pass those costs onto a  
          client.   

          4.   Author's amendments  

          This bill was approved by the Senate Health Committee on July 8,  
          2015.  Due to procedural timing constraints, the author  
          committed to taking the following amendments in this Committee  
          to:

             1)   To delete the words "and or employer" from the  
               definition in what is now subdivision (a), and also delete  
               "or employer" throughout.

             2)   Revise subdivision (g) as follows: "(g) If the records  
               requested pursuant to subdivision (a) are maintained  
               electronically and if the requesting party requests an  
               electronic copy of such information, the health care  
               provider shall 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) Revise page 4, line 13:  The form is  shall be printed in a  
            typeface no smaller than 14-point type and be  in substantially  
            the following form:


           Support  :  California Hospital Association

           Opposition  :  None Known 








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                                        HISTORY
           
           Source  :  Consumer Attorneys of California

           Related Pending Legislation  : None Known

           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 fees for processing the request.  The bill  
          was held on the Senate Floor.



           Prior Vote  :

          Senate Health Committee (Ayes 8, Noes 0)
          Assembly Floor (Ayes 77, Noes 0)
          Assembly Health Committee (Ayes 17, Noes 0)

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