BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2059|
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THIRD READING
Bill No: AB 2059
Author: Muratsuchi (D)
Amended: 6/15/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 6/24/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Anderson, Vidak
ASSEMBLY FLOOR : 73-0, 5/23/14 - See last page for vote
SUBJECT : Medical records: electronic delivery
SOURCE : Consumer Attorneys of California
DIGEST : This bill requires 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
authorizes a health care provider that provides electronic
copies of medical records to charge 25 cents per page, not to
exceed $125, and retrieval or processing fee in an amount not to
exceed $30. This bill additionally extends 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, from five days to 20 business days.
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ANALYSIS :
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/her person or estate, or the personal
representative or an heir of a deceased patient.
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.
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.
4. 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.
5. 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.
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
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retrieval and return of records held by that third person.
This bill:
1. Provides 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.
2. Makes 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.
3. Provides that reasonable costs for retrieval of electronic
medical records or electronic health records provided on a
digital or other electronic medium of 25 cents per page, not
to exceed $125 and a retrieval or processing fee in an amount
not to exceed $30.
4. Provides 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.
5. Makes 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,
unless they are copied from microfilm. In Connecticut, health
care institutions cannot charge more than 65 cents per page,
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/26/14)
Consumer Attorneys of California (source)
AFSCME AFL-CIO
California Association of Health Services at Home
OPPOSITION : (Verified 6/26/14)
Association of Health Information Outsourcing Specialists
California Hospital Association
California Medical Association
Medi-Legal LLC
ARGUMENTS IN SUPPORT : 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.
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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.
ARGUMENTS IN OPPOSITION : The California Medical Association
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."
The Association of Health Information Outsourcing Specialists
(AHIOS) argues that provisions of this bill may be in violation
of the Health Insurance Portability and Accountability Act
(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 creates broader parameters for electronic
retrieval of medical records than exists for paper retrieval of
medical records.
ASSEMBLY FLOOR : 73-0, 5/23/14
AYES: Achadjian, Alejo, Allen, Bigelow, Bloom, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Ch�vez, Chesbro, Conway, Cooley, Dababneh,
Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Grove, Hagman,
Hall, Holden, Jones, Jones-Sawyer, Levine, Linder, Logue,
Lowenthal, Maienschein, Mansoor, Medina, Melendez, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
John A. P�rez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas,
Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron,
Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
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NO VOTE RECORDED: Ammiano, Donnelly, Beth Gaines, Harkey, Roger
Hern�ndez, V. Manuel P�rez, Vacancy
AL:d 6/26/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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