BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 850 (Leno)
As Amended May 2, 2011
Hearing Date: May 10, 2011
Fiscal: No
Urgency: No
SK
SUBJECT
Medical Records: Confidential Information
DESCRIPTION
This bill would require electronic health record systems or
electronic medical record systems to automatically record any
change or deletion of any electronically stored medical
information and would enact related requirements. This bill
would also clarify that existing law relating to the destruction
of medical records applies to medical information, thus
including information kept in both physical and electronic form.
BACKGROUND
Electronic health record systems are increasingly being used in
healthcare settings. In fact, under the recently enacted Health
Information Technology for Economic and Clinical Health Act
(HITECH Act), Public Law 111-5, the Obama Administration
provides a reimbursement incentive for health care providers who
become "meaningful users" of an electronic health record. As a
result, the trend is for health care providers to increasingly
and actively use electronic health records.
At the same time, this means that more and more people will have
easy, quick access to a patient's electronic medical record.
The Los Angeles Times reported that "�a]lready, roughly 150
people, including nursing staff, X-ray technicians and billing
clerks, have access to at least part of a patient's records
during a hospitalization, according to the U.S. Department of
Health and Human Services." ("At risk of exposure: in the push
for electronic medical records, concern is growing about how
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well privacy can be safeguarded," Los Angeles Times, June 26,
2006.) Using electronic health record systems is intended to
reduce medical errors and, certainly, eliminating illegible
handwriting or inexact notes contained in records by using a
keyboard instead of a pen will help to reduce errors. But at
the same time, the potential for errors may actually increase if
providers accidentally push the wrong button or cut and paste a
description of a patient's symptoms without changing relevant
details.
This bill, sponsored by the Consumer Attorneys of California,
seeks to ensure the accuracy and integrity of health records by
requiring that electronic health record systems automatically
record any change or deletion of electronically stored medical
information in an effort to protect the integrity of medical
records.
CHANGES TO EXISTING LAW
Existing law prohibits a health care provider, health care
service plan, or contractor from disclosing medical information
regarding a patient, enrollee, or subscriber without first
obtaining an authorization, except as specified. (Civ. Code
Sec. 56.10(a).) Existing law requires a health care provider,
health care service plan, or contractor to disclose medical
information if the disclosure is compelled as specified (Civ.
Code Sec. 56.10(b)) and permits a health care provider or
service plan to disclose medical information in specified
circumstances. (Civ. Code Sec. 56.10(c).)
Existing law defines "medical information" to mean any
individually identifiable information, in electronic or physical
form, in possession of or derived from a provider of health
care, health care service plan, pharmaceutical company, or
contractor regarding a patient's medical history, mental or
physical condition, or treatment. Existing law defines
"individually identifiable" to mean that the medical information
includes or contains any element of personal identifying
information sufficient to allow identification of the
individual, such as the patient's name, address, electronic mail
address, telephone number, or social security number, or other
information that, alone or in combination with other publicly
available information, reveals the individual's identity. (Civ.
Code Sec. 56.05(g).)
Existing law requires a health care provider, health care
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service plan, pharmaceutical company, or contractor who creates,
maintains, preserves, stores, abandons, destroys, or disposes of
medical records to do so in a manner that preserves the
confidentiality of the information contained within those
records. Existing law provides that any health care provider of
health care, health care service plan, pharmaceutical company,
or contractor who negligently creates, maintains, preserves,
stores, abandons, destroys, or disposes of medical records shall
be subject to existing remedies and penalties, as specified.
(Civ. Code Sec. 56.101.)
Existing law requires that a health care provider, health care
service plan, or contractor must disclose a patient's medical
information to him or her. (Civ. Code Sec. 56.10(b)(7).)
Existing law provides that an adult patient of a health care
provider, any minor patient authorized by law to consent to
medical treatment, and any patient representative shall be
entitled to inspect the patient's 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. (Health & Saf. Code Sec.
123110.)
This bill would revise Section 56.101, relating to the
destruction of medical records to specify that this section
applies to the destruction of "medical information" rather than
"medical records," thus clarifying that information held in both
physical and electronic form is protected.
This bill would require electronic health record systems or
electronic medical record systems to automatically record any
change or deletion of any electronically stored medical
information.
This bill would provide that the record of any change or
deletion shall include the identity of the person who accessed
and changed the medical information, the date and time the
information was accessed, and the change that was made.
This bill would specify that the record of the change or
deletion shall be made a part of the patient's medical
information and shall be accessible upon request of a patient or
his or her representative.
COMMENT
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1.Stated need for the bill
In support of the bill, the author writes:
Conflicting records and records with missing information make
it impossible for a healthcare provider to adequately evaluate
and treat a patient and can have egregious consequences.
Preserving the integrity and accuracy of electronic health
records is crucial to reducing the occurrence of medical
errors. Keeping complete and accurate records has genuine
health and safety implications on a patient's well-being and
quality of life. SB 850 would ensure the accuracy and
integrity and efficiency of electronic health records in order
to achieve the ultimate goal of reducing medical errors.
Current law has failed to assure that EHR systems protect the
integrity of a patient's medical records. In some situations,
health care providers have taken advantage of design flaws to
cover-up errors by modifying or deleting earlier entries.
At Stanford Hospital, doctors failed to treat a patient who
suffered from complications following a surgery; and as a
result, she died. The patient's surviving family members had
to request records from Stanford six times only to be told the
information did not exist. But further investigations
revealed that many records were not produced because of a
technicality and because several records were destroyed after
the error was made and the patient had died. In other
situations, patients have received conflicting records when
requesting their records from their health care provider. In
Northern California, a patient had requested his records three
times because there was no record of a particular visit to a
doctor. It wasn't until the third request that this visit was
reflected in his records, with no explanation as to why the
record was initially missing.
Sponsor Consumer Attorneys of California writes:
Deletions and modifications of a record put a patient's safety
at risk whether intentional or unintentional. Systems must be
put into place to ensure that a patient's record accurately
reflects the patient's health history and medical treatment in
order to provide the quality care to a patient in the future.
A simple inadvertent mistake, such as deleting a patient's
allergic reactions, can have detrimental effects in the
future. . . .
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SB 850 increases the level of accountability in the electronic
storage and maintenance process. Several healthcare providers
have pioneered this effort by implementing these safeguards on
their own, and they can be easily accomplished. Providers
like Kaiser and the Veteran's Administration (VA) Medical
Centers are among the largest EHR systems in the nation and
have already provided such patient protections. This change
in law will ensure that there is always a clear record of
treatment received by the patient, and that vital information
does not go missing. In so doing, SB 850 helps to ensure the
accuracy and integrity of electronic health records thus
contributing to the ultimate goal of reducing medical errors.
2.Requiring electronic health record systems to automatically
record changes and deletions
This bill would require electronic health record systems or
electronic medical record systems to automatically record any
change or deletion of any electronically stored medical
information. The bill would also provide that the record of any
change or deletion must include the identity of the person who
accessed and changed the medical information, the date and time
the information was accessed, and the change that was made.
These provisions are intended to protect the integrity and
accuracy of medical records by preventing health care providers
from changing records to avoid accountability. The sponsor
points out that health care providers like Kaiser and the VA
Medical Centers have electronic health records systems which
already provide many of the patient protections contained in
this bill. In addition, last January, the UC Davis Health
System announced that, under its electronic medical record
system, inpatient providers would "receive a hard stop warning
preventing editing or deleting emergency department notes."
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3.Specifying that a patient's medical information would be
accessible upon request of a patient
This bill would require that the record of any change or
deletion made to a patient's information shall be made a part of
that information and shall be accessible upon request of a
patient or his or her representative. This provision is
consistent with existing law which requires that a health care
provider, health care service plan, or contractor must disclose
a patient's medical information to him or her. (Civ. Code Sec.
56.10(b)(7).) Existing law also specifies that an adult patient
of a health care provider, any minor patient authorized by law
to consent to medical treatment, and any patient representative
are all entitled to inspect the patient's records. (Health &
Saf. Code Sec. 123110.)
In addition, recent federal law changes under the Health
Information Technology for Economic and Clinical Health Act
(HITECH), Public Law 111-5, provide that an individual shall
have the right to receive an accounting of disclosures made by a
health care provider to carry out treatment, payment, and health
care operations when those disclosures are made through an
electronic health record.
4.Bill would clarify that existing protections relating to the
destruction of medical records apply to records held in
electronic or physical form
Under existing law, a health care provider, health care service
plan, pharmaceutical company, or contractor who creates,
maintains, preserves, stores, abandons, destroys, or disposes of
medical records must do so in a manner that preserves the
confidentiality of the information contained within those
records. Existing law also provides that any health care
provider of health care, health care service plan,
pharmaceutical company, or contractor who negligently creates,
maintains, preserves, stores, abandons, destroys, or disposes of
medical records shall be subject to existing remedies and
penalties, as specified.
This bill would delete the term "medical records" used above and
replace it with the term "medical information." The intent of
this change is to incorporate existing law's definition of
"medical information" which is defined to mean any individually
identifiable information in electronic or physical form held by
the health care provider, health care service plan,
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pharmaceutical company, or contractor regarding a patient's
medical history, mental or physical condition, or treatment.
The change would thus clarify that the above existing
protections relating to the destruction of medical records
applies to a patient's information whether it is held in
electronic or physical form.
Support : California Association of Health Underwriters;
Consumer Federation of California
Opposition : None Known
HISTORY
Source : Consumer Attorneys of California
Related Pending Legislation : None Known
Prior Legislation : None Known
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