S984

An Act concerning access to medical records and supplementing Titles 26 and 45 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. Except as provided in subsection d. of this section, if a patient of a general, special, or psychiatric hospital licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), the patient's legally authorized representative, or an authorized third party requests, in writing, a copy of the patient’s medical record, the hospital shall provide a legible paper or electronic reproduction of the medical record from each individual admission within the dates requested to the patient, the patient's legally authorized representative, or the authorized third party within 30 days of the request, in accordance with the following:

(1) (a) For a request by a patient or the patient’s legally authorized representative for an individual admission record, the fee for reproducing the record shall not exceed $1 per page or $100 per individual admission record for the first 100 pages, whichever is less. For individual admission records that contain more than 100 pages, a copying fee of no more than $0.25 per page may be charged for pages in excess of the first 100 pages, up to a maximum of $200 for each admission record; and

(b) For a request by an authorized third party, the fee for reproducing an individual admission record shall be no more than $1 per page.

(2) Delivery of an electronic reproduction of a patient’s medical record shall be required only if: (a) the entire request can be reproduced from an electronic health record system; (b) the medical record is specifically requested to be delivered in electronic format; and (c) the medical record can be delivered electronically.

(3) In addition to per-page fees, a hospital shall apply the following charges:

(a) a search fee of no more than $10 per request. Although the patient may have had more than one admission, and thus more than one individual admission record is provided, only one search fee shall be charged for each request. The search fee shall apply even if no individual admission record is found as a result of the search;

(b) a fee for the reproduction of x-rays or any other material within an individual admission record that cannot be routinely copied or duplicated on a commercial photocopy machine, which shall be no more than the actual cost of the duplication of the materials, plus an administrative fee of the lesser of $10 or 10 percent of that cost. The actual cost of duplication shall include: cost of materials; time spent by office personnel for retrieving, duplicating, and refiling the materials; and overhead costs;

(d) costs for delivering records in any medium, plus sales tax, if applicable.

(4) The fees established in this subsection shall be charged for electronic reproductions as well as paper copies of medical records.

(5) The hospital shall establish a policy assuring access to copies of medical records for patients who do not have the ability to pay for the copies.

(6) The hospital shall establish a fee policy providing an incentive for the use of abstracts or summaries of medical records; however, a patient, a patient’s legally authorized representative, or an authorized third party shall have the right to receive a full or certified copy of the medical record.

(7) As used in P.L. , c. (C. ) (pending before the Legislature as this act), "legally authorized representative" means the following:

(a) the patient’s spouse, domestic partner, or civil union partner;

(b) the patient’s immediate next of kin;

(d) the patient's attorney;

(e) the patient's third party insurer; or

(f) the patient’s worker's compensation carrier, where access is permitted by contract or law, but limited only to that portion of the medical record that is relevant to the specific work-related incident at issue in the worker's compensation claim.

(8) As used in P.L. , c. (C. ) (pending before the Legislature as this act), “authorized third party” shall mean a third party with a valid authorization, subpoena, or court order granting access to a patient’s medical records.

b. Access to a copy of a patient’s medical record shall be limited only to the extent necessary to protect the patient. The patient’s attending physician shall provide a verbal explanation for any denial of access to the patient, legally authorized representative, or authorized third party, and shall document the denial and explanation in the medical record. In the event that direct access to a copy by the patient is medically contraindicated, as documented by a physician in the patient's medical record, the hospital shall not limit access to the record to a legally authorized representative of the patient, an authorized third party, or the patient's attending physician.

c. A hospital shall not assess any fees or charges for a copy of a patient’s medical records as provided herein other than those provided for in this section.

d. The fees authorized by this section shall not be imposed on:

(1) A patient who does not have the ability to pay and who presents either: (a) a statement certifying to annual income at or below 250 percent of the federal poverty level; or (b) proof of eligibility for, or enrollment in, a State or federal assistance program including, but not limited to: the federal Supplemental Nutrition Assistance Program established pursuant to the “Food and Nutrition Act of 2008,” Pub.L.110-246 (7 U.S.C. s.2011 et seq.); the federal Supplemental Security Income program established pursuant to Title XVI of the federal Social Security Act, Pub.L.92-603 (42 U.S.C. s.1381 et seq.); the National School Lunch Program established pursuant to the “Richard B. Russell National School Lunch Act,” Pub.L.79-396 (42 U.S.C. s.1751 et seq.); the federal special supplemental food program for women, infants, and children established pursuant to Pub.L.95-627 (42 U.S.C. s.1786); the State Medicaid program established pursuant to the “New Jersey Medical Assistance and Health Services Act,” P.L.1968, c.413 (C.30:4D-1 et seq.); the NJ FamilyCare Program established pursuant to the “Family Health Care Coverage Act,” P.L.2005, c.156 (C.30:4J-8 et al.); the Work First New Jersey program established pursuant to the “Work First New Jersey Act,” P.L.1997, c.38 (C.44:10-55 et seq.); the New Jersey Supplementary Food Stamp Program established pursuant to the “New Jersey Supplementary Food Stamp Program Act,” P.L.1998, c.32 (C.44:10-79 et seq.); any successor program; or any other State or federal assistance program now or hereafter established by law;

(2) A not-for-profit corporation indicating in writing that it is representing a patient; or

(3) An attorney representing a patient on a pro bono basis, provided that the attorney submits with the request a certification that the attorney is representing the patient on a pro bono basis. An attorney representing a patient on a contingency fee basis shall be assessed the ordinary fees to obtain a copy of the patient’s records.

2. A person licensed to practice a health care profession regulated by the State Board of Medical Examiners shall provide copies of professional treatment records, including records from other health care providers that are part of a patient’s record, to a patient, the patient’s authorized representative, or an authorized third party in accordance with the following:

a. No later than 30 days from receipt of a request from a patient, a patient’s authorized representative, or an authorized third party, the licensee shall provide an electronic copy or photocopy of the professional treatment records, billing records, or both, as requested. The record shall include all pertinent, objective data, including test results and x-ray results, as applicable, and subjective information.

b. Unless otherwise required by law, a licensee may elect to provide a summary of the record in lieu of providing the electronic copy or photocopy required pursuant to subsection a. of this section, so long as that summary adequately reflects the patient's history and treatment. A licensee may charge a reasonable fee for the preparation of a summary that has been provided in lieu of the actual record, which shall not exceed the cost that would be charged for the actual record pursuant to subsection d. of this section; however, a patient, a patient’s legally authorized representative, or an authorized third party shall have the right to receive a full or certified copy of the medical record. The fee for certification shall be no more than $10 per certification.

c. If, in the exercise of the licensee’s professional judgment, a licensee has reason to believe that the patient's mental or physical condition will be adversely affected upon being made aware of the subjective information contained in the professional treatment record or a summary of the record, the licensee may refuse to provide the record or summary to the patient. The licensee shall include in the record a notice setting forth the reasons for the original refusal. The licensee shall, however, provide a copy of the record or summary upon request to:

(1) the patient's attorney;

(2) another licensed health care professional;

(3) the patient's health insurance carrier through an employee thereof;

(4) a governmental reimbursement program or an agent thereof, with responsibility to review utilization or quality of care; or

(5) an authorized third party.

d. A licensee may require a record request to be in writing and, except as provided in subsection j. of this section, may charge a fee for:

(1) (a) A request by a patient or a patient’s legally authorized representative for the reproduction of patient records, which shall be no more than $1 per page or $200 for the entire record, whichever is less; and

(b) A request by an authorized third party for the reproduction of patient records, which shall be no more than $1 per page;

(2) The reproduction of x-rays or any other material within a patient record that cannot be routinely copied or duplicated on a commercial photocopy machine, which shall be no more than the actual cost of the duplication of the materials, plus an administrative fee of the lesser of $10 or 10 percent of that cost. The actual cost of duplication shall include: cost of materials; time spent by office personnel for retrieving, duplicating, and refiling the materials; and overhead costs;

(3) A search for records. The search fee shall be no more than $10 per request. Although the patient may have had more than one admission, and thus more than one individual admission record is provided, only one search fee shall be charged for each request. The search fee shall apply even if no individual admission record is found as a result of the search; and

(4) The costs for delivering records in any medium, plus sales tax, if applicable.

A licensee shall not assess any fees or charges for a copy of a patient’s records as provided herein other than those provided for in this section.

e. The fees established in subsection d. of this section shall be charged for electronic copies as well as paper copies of medical records.

f. Delivery of an electronic copy of a patient record to the requestor shall be required only if: (1) the entire request can be reproduced from an electronic health record system; (2) the patient record is specifically requested to be delivered in electronic format; and (3) the patient record can be delivered electronically.

g. A licensee shall not charge a patient for a copy of the patient's record when:

(1) the licensee has affirmatively terminated a patient from practice in accordance with the requirements of N.J.A.C.13:35-6.22; or

(2) the licensee leaves a practice that the licensee was formerly a member of, or associated with, and the patient requests that the patient’s medical care continue to be provided by that licensee.

h. If the patient or a subsequent treating health care professional is unable to read the treatment record, either because it is illegible or prepared in a language other than English, the licensee shall provide a transcription or translation, as applicable, at no cost to the patient.

i. The licensee shall not refuse to provide a professional treatment record on the grounds that the patient owes the licensee an unpaid balance if the record is needed by another health care professional for the purpose of rendering care.

j. The fees authorized by this section shall not be imposed on:

(2) A not-for-profit corporation indicating in writing that it is representing a patient; or

3. The Commissioner of Health and the State Board of Medical Examiners, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations as necessary to effectuate the purposes of this act.

4. This act shall take effect on the first day of the seventh month next following the date of enactment, except that the Commissioner of Health and the State Board of Medical Examiners may take such anticipatory administrative action in advance thereof as may be necessary for the implementation of this act.

STATEMENT

This bill clarifies and eliminates ambiguities in existing regulations concerning fees for the provision of medical records to patients, legally authorized representatives, and authorized third parties. The bill would apply to fees charged by hospitals and health care professionals licensed by the State Board of Medical Examiners (BME). The current regulations governing hospitals are provided by N.J.A.C.8:43G-15.3(d) through (f); the current regulations governing licensees of the BME are provided by N.J.A.C.13:35-6.5(c).

The bill provides that a hospital or BME licensee must provide copies of medical records to a patient, the patient’s legally authorized representative, or an authorized third party within 30 days of the request. A legally authorized representative is defined as: (a) the patient’s spouse, domestic partner, or civil union partner; (b) the patient’s immediate next of kin; (c) the patient’s legal guardian; (d) the patient's attorney; (e) the patient's third party insurer; or (f) the patient’s worker's compensation carrier, where access is permitted by contract or law, but limited only to that portion of the medical record that is relevant to the specific work-related incident at issue in the worker's compensation claim. An authorized third party is defined as a third party with a valid authorization, subpoena, or court order granting access to a patient’s medical records.

The bill specifies the charges that a hospital or BME licensee may charge for medical records or admission records, many of which are similar to the charges permitted by current regulations. Specifically, a request for a patient’s record by the patient or the patient’s legally authorized representative would be subject to the following fees: in the case of a hospital, the maximum reproduction fee may not exceed $1 per page or $100 per individual admission record for the first 100 pages, whichever is less, and no more than $0.25 per page for pages in excess of the first 100 pages, up to a maximum of $200 for each admission record; for a BME licensee, the maximum reproduction fee would be no more than $1 per page or $200 for the entire record, whichever is less. For requests by authorized third parties, the reproduction fee would be no more than $1 per page.

In addition to per-page reproduction fees, the bill allows for a search fee of no more than $10 per request, regardless of the number of admissions covered by the search, which may apply even if no records are found as a result of the search. The bill also permits an additional fee for the reproduction of x-rays or any other material within an individual admission record that cannot be routinely copied or duplicated on a commercial photocopy machine, which may be no more than the actual cost of the duplication of the materials, plus an administrative fee of the lesser of $10 or 10 percent of that cost. The actual cost of duplication includes: cost of materials; time spent by office personnel for retrieving, duplicating, and refiling the materials; and overhead costs. Finally, a hospital or BME licensee may charge costs for delivering records in any medium, plus sales tax, if applicable. Fees would apply equally to paper or electronic records. In the case of a hospital, the bill also allows for a fee for certification of a copy of a medical record of no more than $10 per certification.

The bill provides that delivery of an electronic copy of a patient record to the requestor shall be required only if: the entire request can be reproduced from an electronic health record system; the patient record is specifically requested to be delivered in electronic format; and the patient record can be delivered electronically.

The bill clarifies that, although hospitals must establish a fee policy providing incentives for use of abstracts and summaries of patient records, a requester is entitled to receive a full or certified copy of the records. The bill also clarifies that, if a BME licensee provides a summary or abstract of a medical record, the fee for the summary or abstract would not be permitted to exceed the cost that would be charged for provision of the actual record.

The bill clarifies that, when a hospital or BME licensee denies a patient access to the patient’s own medical records, the denial and the explanation for the denial must be documented in the medical record, and the record must be made available to other parties authorized to receive a copy of the record.

The bill permits certain parties to obtain a free copy of patient records. Specifically, the bill provides that a free copy may be provided to: (1) a patient whose annual income is at or below 250 percent of the federal poverty level or who can demonstrate eligibility for, or enrollment in, any State or federal assistance program; (2) a not-for-profit corporation that indicates in writing that it is representing a patient; and (3) an attorney representing the patient on a pro bono basis who submits a certification that the representation is pro bono. An attorney representing a patient on a contingency fee basis would be assessed the ordinary fees to obtain copies of the patient’s records.