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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