BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2059 (Muratsuchi)
As Amended June 15, 2014
Hearing Date: June 24, 2014
Fiscal: No
Urgency: No
NR
SUBJECT
Medical records: electronic delivery
DESCRIPTION
This bill would require 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 the
medical record can be delivered electronically.
This bill would authorize a health care provider that provides
electronic copies of medical records to charge 25 cents per
page, not to exceed one hundred twenty-five dollars, and
retrieval or processing fee in an amount not to exceed 30
dollars. This bill would additionally extend the period in
which a health care provider must make records available or be
subject to liability for all reasonable expenses, including
attorney's fees and court costs, 5 days to 20 business days, and
make other clarifying and technical changes.
BACKGROUND
Twelve states, including California, have statutes that
establish a preset fee or a maximum fee which can be charged for
copying and researching a patient's medical records. These
states have statutes that are similar to those of states that
limit reproduction costs to "reasonable" or "actual" costs.
However, there are few guidelines to help establish what is
"reasonable" on a case-by-case basis. Instead, legislatures
have established costs that are presumptively reasonable. For
example, in California, copies may not exceed 10 cents per page,
(more)
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unless they are copied from microfilm. In Connecticut, health
care institutions cannot charge more than 65 cents per page,
which includes all related research, handling, and postage fees.
Florida, at the high end of the spectrum, allows a charge of up
to one dollar per page.
Ten states, including Illinois, Maine, and Texas, have enacted
statutes for electronic medical records. These caps range from
$81.57 in Texas to $150 in Maine. Four states have created a
separate per digital page cost structure. Of those four,
Illinois, North Dakota, and Oklahoma provide a lesser amount per
digital page than paper page, while Delaware allows the same
rate to be charged for both digital pages and paper pages. The
remaining two states' statutes allow for medical records to be
charged at "actual cost."
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 at an appropriate fee. This bill would make other
clarifying and technical changes.
CHANGES TO EXISTING LAW
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.)
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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.)
Existing law defines "reasonable cost" to include 10 cents per
page for standard sized reproduction of documents, 20 cents 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. (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 provide that if the records requested are
electronic medical records or electronic health records stored
on a digital or other electronic medium and the requesting party
requests delivery in a digital or electronic medium, the health
care provider must provide an electronic copy.
This bill would make the person or entity having custody of the
medical records liable for all reasonable expenses, including
attorney's fees and court costs, incurred in any proceeding when
the medical records are not made available during business hours
within 20 business days of the written request.
This bill would provide that reasonable costs for retrieval of
electronic medical records or electronic health records provided
on a digital or other electronic medium 25 cents per page, not
to exceed one hundred 25 dollars, and a retrieval or processing
fee in an amount not to exceed 30 dollars.
This bill would provide that it should not be construed to
supersede the requirements or replace or in any way modify any
privacy and information security requirements and protections in
federal law, or any rule promulgated by the Department of
Industrial Relations, Division of Workers' Compensation.
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This bill would make other clarifying and technical changes.
COMMENT
1.Stated need for the bill
According to the author:
AB 2059 will modernize Evidence Code Section 1158, which
allows an attorney, with authorization, to request the medical
records of a patient. This code section has not been updated
to reflect the reality of electronic medical records (EMRs)
and contains outdated cost reimbursement and time frame
structures. Consumer Attorneys of California (CAOC) has been
meeting with the relevant users, providers and document
service providers in an attempt to update the statute in a
thoughtful and workable manner.
Current law contains no reference to electronic medical
records; instead, a per page charge of ten cents is allowed.
However, that per page cost does not make sense when the
medical records are sent via electronic delivery. At least
seven other states have distinct electronic rates with a
capped amount. Further, many other states contain clear and
specific language that if the records are maintained in
electronic form (EMR), the requestor can specifically request
that the copies be provided in a digital format.
2.Appropriate charge per page for medical records
Under existing law, the fees for producing medical records are
as follows: ten cents per page for standard sized reproduction
of documents, twenty cents per page for copying from microfilm,
and actual costs for the reproduction of oversize documents or
those requiring special processing. This bill would expressly
authorize electronic reproduction of medical records, and
establish a charge of twenty-five cents per page.
The author and sponsor have been working diligently with
stakeholders to address concerns and come to an agreement
regarding an appropriate price for electronic records. The
California Medical Association (CMA), currently in opposition to
this bill, writes "CMA looks forward to working with the author
on determining the appropriate cost structure and reimbursement
rate applicable to this process."
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a) Electronic medical record retrieval fees
A number of states expressly authorize electronic discovery of
medical records, and outline by statute different fees and fee
structures for retrieval of those records. Delaware applies a
graduated fee structure to records, whether they are produced
in electronic or digital format. Record retrieval is to be
charged a "reasonable fee" not to exceed two dollars per page
for the first ten pages, one dollar per page for pages 11
through 20, ninety cents per page for pages 21 through 60, and
fifty cents per page for pages beyond 60. Illinois charges
half of the paper rate for electronic copies, and Louisiana
caps the total fee for digital records at $100. North Dakota
charges thirty dollars for the first 25 pages of digital
records, and twenty-five cents for each subsequent page.
CMA argues that the cost structure and reimbursement rate
under this bill may not be sufficient, while Med-Legal, Inc.,
argues that the fees are excessive and should be reduced.
Arguably, the twenty-five cents per page charged under this
bill is consistent with other statutory fees set by various
legislatures.
b) Paper medical record retrieval fees
In contrast to the rates for electronic medical records
proposed under this bill, California's fee for paper medical
record retrieval falls significantly below the fees charged by
other states. Alabama charges one dollar per page for the
first 25 pages, and 50 cents per page for each page
thereafter. Colorado charges $16.50 for the first 10 pages,
and Kansas charges fifty-eight cents per page for the first
250 pages plus $17.50 for labor. The only state that might
compare to California in cost of reproducing paper medical
records is Pennsylvania, which charges a flat fee of no more
than nineteen dollars for the expense of reproducing records,
plus the actual cost of postage or delivery.
The Association of Health Information Outsourcing Specialists
(AHIOS) argues that the fee for producing medical records in
paper format should be updated as well. AHIOS writes, "to
amend this bill and not update these rates to something in
line with today's cost environment is unreasonable. In
addition, leaving the paper rates unchanged will undoubtedly
result in requestors specifically asking for paper records
because it will result in lower fees. We believe, if
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anything, that the traditional paper record should have higher
fees because it involves higher material costs."
1.Extension of time in which to make records available
This bill would extend the period by which a health care
provider must make medical records available, pursuant to a
valid, written request. 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." Accordingly, this bill would extend that period to 20
business days.
In opposition to this provision, Medi-Legal LLC writes that
"this extensive timeframe will delay the ability for injured
workers to receive the information they need to contest a claim
or push for a resolution on their claim."
2.Opposition's additional concerns
CMA writes that it is concerned that this bill "would require a
physician to provide medical records through email if requested
in such a format." While the language of the bill would allow a
request that records be delivered through email, the bill only
requires that a health care provider provide an "electronic
copy."
AHIOS argues that provisions of this bill may be in violation of
HIPAA. Specifically, AHIOS believes that permitting
"professional photocopiers and attorneys to access and inspect
all original medical records?would violate HIPAA and cause
confusion at healthcare facilities." Staff notes that parties
may always make objections to discovery requests. Additionally,
nothing in this bill would create broader parameters for
electronic retrieval of medical records than exists for paper
retrieval of medical records.
Support : American Federation of State, County, and Municipal
Employees (AFSCME) AFL-CIO; California Association of Health
Services at Home
Opposition (unless amended) : Association of Health Information
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Outsourcing Specialists; California Hospital Association;
California Medical Association; Medi-Legal LLC
HISTORY
Source : Consumer Attorneys of California
Related Pending Legislation : SB 588 (Emmerson, 2013) would have
increased the fees that may be charged for copying medical
records, including distinguishing costs for paper and electronic
medical records, deleted the prohibition on medical providers
performing the copying when the attorney has employed a
professional copier; and only permit an attorney to employ a
professional photocopying service when the records are in paper
form. This bill was returned to the Secretary of Senate
pursuant to Joint Rule 56.
Prior Legislation : SB 1543 (Emmerson, 2012) was substantially
similar to SB 588 (Emmerson, 2013). SB 1543 was never heard in a
committee.
Prior Vote :
Assembly Floor (Ayes 73, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Health Committee (Ayes 19, Noes 0)
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