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 AB 1337 (Linder) Page 2 of ? 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 AB 1337 (Linder) Page 3 of ? 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: AB 1337 (Linder) Page 4 of ? 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 AB 1337 (Linder) Page 5 of ? 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 AB 1337 (Linder) Page 6 of ? 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 AB 1337 (Linder) Page 7 of ? 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 AB 1337 (Linder) Page 8 of ? 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) **************