BILL ANALYSIS �
AB 2059
Page 1
Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2059 (Muratsuchi) - As Amended: May 1, 2014
SUBJECT : Medical Records: Electronic Delivery
KEY ISSUE : Should the Evidence Code be updated to permit the
request and delivery of electronic medical records?
SYNOPSIS
Under existing law, an attorney, prior to filing a civil action,
may present a written request, properly signed and authorized by
an adult patient, to the medical provider that maintains the
patient's medical records. The provider must make the records
available for inspection and copying by the attorney within five
days. The purpose of this law is to help the plaintiff, and his
or her attorney, determine if there is sufficient evidence or
cause to bring a lawsuit. According to the author, this law
needs to be updated to account for the fact that medical records
today are routinely held in electronic form and could be more
efficiently provided in that form. This non-controversial bill
would clarify that if medical records are maintained in an
electronic form, and an attorney requests that the medical
records be electronically delivered in electronic form, then the
medical provider shall comply with that request, assuming that
the attorney has provided a proper authorization signed by the
adult patient or appropriate representative. Existing law
currently establishes a "per page" cost and a retrieval fee that
the provider may charge the requesting attorney. This amount
has not been updated in many years and, moreover, it is not
entirely clear what an appropriate "per page" charge should be
if the records are in electronic form and electronically
delivered. As such, the bill in its current form contains a
yet-to-be-determined fee amount, but the author and stakeholders
will continue working to develop a fair and reasonable amount
should the bill move out of this Committee today. The bill is
sponsored by the Consumer Attorneys of California. There is no
opposition to this bill, which recently passed out of the
Assembly Health Committee on a 19-0 vote.
SUMMARY : Requires a health care provider, upon request by an
authorized attorney, to provide the attorney with an electronic
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copy of the requested medical record if the medical record
exists in a digital or electronic format that can be delivered
electronically. Specifically, this bill :
1)Provides that if an electronic copy of a medical record is
requested by an attorney before the filing of an action, as
specified, the health care provider shall provide an
electronic copy of the requested medical record if the medical
record exists in a digital or electronic format that can be
delivered electronically.
2)Provides that if requested records are electronic health
records provided on a digital or other electronic medium and
the requesting party requests delivery in a digital or
electronic medium, the health care provider may charge
reasonable per-page, processing, and retrieval fees.
3)Increases the period of time in which the health provider must
respond to a request for medical records from five (5) days to
fifteen (15) days after the presentation of a written
authorization.
EXISTING LAW :
1)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. In the case
of a minor, written authorization from a parent or guardian of
the minor. (Evidence Code Section 1158.)
2)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. (Id.)
3)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.
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4)Permits 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. (Id.)
5)Defines "reasonable cost" to include $0.10 per page for
standard sized reproduction of documents, $0.20 per page for
copying from microfilm, actual costs for the reproduction of
oversize documents or those requiring special processing, and
$16 per hour per person for clerical costs incurred in
locating and making the records available, actual postage
charges, and actual costs, if any, charged to the witness by a
third person for the retrieval and return of records held by
that third person. (Id.)
6)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.
(Id.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : Sponsored by the Consumer Attorneys of California
(CAOC), this bill seeks to modernize the Evidence Code by
allowing an attorney to request an electronic copy of a medical
record, where one exists, if the attorney has proper
authorization from the patient to whom the records pertain.
Under existing law, an attorney, prior to filing a civil action,
may present a written request, properly signed and authorized by
an adult patient, to the medical provider that maintains the
patient's records. The provider must make the records available
for inspection and copying by the attorney, or be subject to
liability for any reasonable expenses, including attorney's
fees, incurred in any attempt to enforce the request. The
purpose of existing law is to help the plaintiff, and his or her
attorney, make an evaluation as to whether there is sufficient
cause to bring a lawsuit and, if there is, whether there is
sufficient evidence to prevail.
According to the author and sponsor, however, the law should be
updated to reflect the fact that medical records today are
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routinely held in electronic form and more efficiently and
cost-effectively provided in that form. This bill, therefore,
would specify that if medical records are maintained in an
electronic form, and an attorney requests that the medical
records be electronically delivered in electronic form, then the
custodian of the records shall comply with that request,
assuming that the attorney has provided a proper authorization
signed by the adult patient or an appropriate representative.
Longer Time Frame to Respond : Existing law requires the medical
provider to produce the records within five days of the request.
Failure to do so may subject the provider to liability for
reasonable expenses, including attorney's fees, incurred in
enforcing the request. According to the sponsor, however, not
only is this period "unrealistic," it is also "universally
ignored." Therefore, this bill increases the time that the
medical provider has to respond from five (5) days to fifteen
(15) days.
Appropriate Fees to be Determined : Under existing law, the
medical provider is permitted to charge the requesting attorney
reasonable costs for making the records available. These could
include the costs of copying and printing, or the cost of paying
someone to retrieve the files. These retrieval costs can be
greater if records are stored at an off-site facility or by a
third-party storage provider. Existing law provides that the
"reasonable costs" shall include, but are not limited to, 10
cents per page for standard reproduction or 20 cents per page
for copying documents from microfilm. (The use of the term
"microfilm," which is rarely used anymore, may reflect the
problem that the author and sponsor are trying to solve.) In
addition to this per page charge, existing law allows the
medical provider to charge for reasonable clerical costs
incurred in locating and making the records available, at a
maximum rate of $16 per hour per person.
Electronic delivery of an electronic file will, presumably,
alter the rationale behind these charges. For example, it would
presumably cost the same amount to send a 10-page document
electronically as it would to send a 20-page document
electronically. However, while both attorneys and health care
providers agree that copies of records should be provided in
electronic records when possible, there is apparently not yet a
consensus on what the fee structure for providing records in
electronic form should be. As such, the bill in print leaves
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the per page and retrieval amounts indeterminate at this point.
The author and sponsor have informed the Committee that the
stakeholders will work collaboratively to develop fair and
reasonable fees, should the bill move out of this Committee.
ARGUMENTS IN SUPPORT : According to the sponsor, the Consumer
Attorneys of California (CAOC), "AB 2059 will modernize Evidence
Code Section 1158 . . . [which] has not been updated to reflect
the reality of electronic medical records (EMRs) and contains
outdated cost reimbursement and time frame structures." CAOC
claims that at least seven other states have distinct electronic
rates and caps. In addition, CAOC contends, the existing
requirement that records be provided within five days of a
request "is both unrealistic and universally ignored in today's
world."
REGISTERED SUPPORT / OPPOSITION :
Support
Consumer Attorneys of California (sponsor)
American Federation of State, County, and Municipal Employees
(AFSCME)
California Association of Health Services at Home
California Workers' Compensation Services Association
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334