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SB-1238 Patient records: maintenance and storage.(2017-2018)

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Date Published: 06/28/2018 09:00 PM
SB1238:v95#DOCUMENT

Amended  IN  Assembly  June 28, 2018
Amended  IN  Assembly  June 20, 2018
Amended  IN  Senate  April 09, 2018
Amended  IN  Senate  March 19, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1238


Introduced by Senator Roth

February 15, 2018


An act to add Sections 123106 and 123107 to the Health and Safety Code, relating to health care.


LEGISLATIVE COUNSEL'S DIGEST


SB 1238, as amended, Roth. Patient records: maintenance and storage.
Existing law establishes procedures for providing access to various types of health care records, including patient records, as defined, by patients and persons having responsibility for decisions respecting the health care of others. Existing law gives health care providers, as defined, various responsibilities in connection with providing access to these records.
This bill would require certain health care providers at the time of creation of a patient record providers, no later than the date of the first service delivery, or as soon as reasonably practicable after an emergency treatment situation, to provide a statement to the patient, or the patient’s representative, that sets forth the patient’s rights and the intended retention period for the records. The bill would require those health care providers that plan to destroy patient records to notify the patient at least 60 days before a patient’s records are to be destroyed, as provided. The bill would require a health care provider to provide a patient with his or her original medical records that the provider plans to destroy if the patient makes a request for the records to the provider before the date of the proposed destruction of the records. The bill would authorize a health care provider to charge a patient for the actual costs of copying, mailing, or shipping the patient’s records under that provision. The bill would authorize the issuance of citations and the assessment of administrative penalties for violations. Under the bill, if a group practice or clinic comprised of health care providers subject to the bill is the custodian of patient records for those health care providers, the group practice or clinic, rather than the individual health care provider, would be required to comply with the bill’s provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 123106 is added to the Health and Safety Code, to read:

123106.
 (a) A health care provider described in paragraphs (4), (5), (6), (8), and (9) of subdivision (a) of Section 123105, who creates patient records, as defined in subdivision (d) of Section 123105, shall, at the time the initial patient record is created, no later than the date of the first service delivery, or as soon as reasonably practicable after an emergency treatment situation, provide a statement to be signed by the patient, or the patient’s representative, that sets forth both of the following:
(1) The patient’s rights under this chapter to inspect his or her medical records, obtain copies of his or her medical records, and to provide a written addendum, pursuant to Section 123111, with respect to any item or statement in the patient’s records that the patient believes to be incomplete or incorrect.
(2) The intended retention period for the records, as specified in applicable law or by the health care provider’s retention policy.
(b) A copy of the signed statement required pursuant to subdivision (a) shall be provided to the patient.
(c) If a patient, or the patient’s representative, is provided a statement at the time that the initial patient record is created, pursuant to subdivision (a), and the patient refuses to sign the statement, the patient’s record shall indicate that the patient refused to sign the statement.
(d) The statement required by subdivision (a) may be included in another form or statement provided to the patient, or the patient’s representative, at the time the initial patient record is created. if the form or statement is provided no later than the date of the first service delivery, or as soon as reasonably practicable after an emergency treatment situation.
(e) If a health care provider to whom subdivision (a) applies plans to destroy patient records, the health care provider shall, no fewer than 60 days before a patient’s records are to be destroyed, notify the patient, via first-class mail, electronic mail, or both, to the patient’s last known mailing or electronic mail address, or both. The notification shall inform the patient that his or her records are scheduled to be destroyed and the date of the proposed destruction of records. The notification shall also inform the patient of his or her rights under this chapter to inspect his or her medical records. A health care provider to whom subdivision (a) applies shall provide a patient with his or her original medical records that the provider plans to destroy earlier than the period specified in the signed statement if the patient makes a request for the records to the health care provider before the date of the proposed destruction of the records. The patient or the patient’s authorized representative may designate delivery of patient records either by personal pickup, mail, overnight delivery, or other delivery means. This section does not reduce the length of record retention as otherwise required by law.
(f) A health care provider may charge a patient for the actual costs incurred by the health care provider for copying, mailing, or shipping the patient’s records under this section in accordance with subdivision (k) of Section 123110. This section does not authorize a health care provider to charge a patient for maintenance of any patient records that the health care provider is obligated by law to maintain.
(g) A health care provider to whom subdivision (a) applies shall not be subject to this section for medical records that are created for a patient who is referred to the provider solely for a diagnostic evaluation, if the provider does not provide treatment to the patient and reports the results of the diagnostic evaluation to the patient’s referring provider.
(h) A health care provider to whom subdivision (a) applies shall not be subject to this section if the health care provider utilizes electronic health records and those records are stored in perpetuity.
(i) A health care provider who violates this section may be cited and assessed an administrative penalty in accordance with Section 125.9 of the Business and Professions Code. A citation shall not be issued and a penalty shall not be assessed upon the first violation by a licensee of this section. Upon the second and each subsequent violation by a health care provider of this section, a citation may be issued and an administrative penalty may be assessed after appropriate notice and opportunity for hearings. Notwithstanding any other law, the remedy described in this subdivision constitutes the exclusive remedy for a violation of this section. This section does not affect other existing rights, duties, or remedies provided by law.
(j) The patient records created by a psychiatrist, including psychotherapy notes, as defined in Section 164.501 of Title 45 of the Code of Federal Regulations, are not subject to this section. For the purposes of this subdivision, “psychiatrist” means a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code or pursuant to the Osteopathic Initiative Act, who devotes, or is reasonably believed by the patient to devote, a substantial portion of his or her time to the practice of psychiatry.

SEC. 2.

 Section 123107 is added to the Health and Safety Code, to read:

123107.
 (a) Notwithstanding Section 123106, if a group practice or clinic comprised of health care providers described in paragraph (4), (5), (6), (8), or (9) of subdivision (a) of Section 123105 is the custodian of patient records for those health care providers, the group practice or clinic, rather than the individual health care provider, shall be required to comply with the requirements of Section 123106.
(b) This section does not apply to a clinic described in paragraph (2) of subdivision (a) of Section 123105.