HOUSE BILL No. 4294 February 23, 1999, Introduced by Reps. Brater, DeHart, Baird, Hale, Quarles, Hansen, Woodward, Schermesser, Martinez, Jacobs, Dennis, Schauer, Scott, Spade, Jellema, Pappageorge, Bogardus, Cherry, Mans, Stallworth, Tesanovich, Price and LaForge and referred to the Committee on Health Policy. A bill to provide for and to regulate access to and disclo- sure of health care information; to prescribe the powers and duties of certain state agencies and departments; to prescribe administrative sanctions; and to provide remedies. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 1. This act shall be known and may be cited as the 2 "health care information act". 3 Sec. 3. As used in this act: 4 (a) "Business day" means a day other than a Saturday, a 5 Sunday, or a holiday recognized and observed by the state or fed- 6 eral government. 7 (b) "Guardian", until April 1, 2000, means an individual who 8 is appointed as a full guardian of a legally incapacitated person 9 under section 444 of the revised probate code, 1978 PA 642, 10 MCL 700.444, and on and after April 1, 2000, means an individual 00567'99 CPD 2 1 who is appointed as a full guardian of a legally incapacitated 2 person under section 5306 of the estates and protected individu- 3 als code, 1998 PA 386, MCL 700.5306. Guardian, until April 1, 4 2000, also includes an individual who is appointed as the guard- 5 ian of a minor under section 422 or 424 of the revised probate 6 code, 1978 PA 642, MCL 700.422 and 700.424, and on and after 7 April 1, 2000, includes an individual who is appointed as the 8 guardian of a minor under section 5202 or 5204 of the estates and 9 protected individuals code, 1998 PA 386, MCL 700.5202 and 10 700.5204. 11 (c) "Health care" means any care, service, or procedure pro- 12 vided by a health care provider or health facility to diagnose, 13 treat, or maintain a patient's physical condition, or that 14 affects the structure or a function of the human body. 15 (d) "Health care information" means information recorded in 16 a form or medium that identifies or can readily be associated 17 with the identity of a patient and relates to the patient's 18 health care. Health care information includes, but is not 19 limited to, medical histories, medical records, medical reports, 20 medical summaries, medical diagnoses and prognoses, medical 21 treatment and medication ordered and given, notes, entries, and 22 x-rays and other imaging records. Health care information does 23 not include 1 or more of the following: 24 (i) Ordinary business records pertaining to patients' 25 accounts. 26 (ii) Nursing audits. 00567'99 3 1 (iii) Physician audits. 2 (iv) Evaluations done by the department of community health 3 or the department of consumer and industry services. 4 (v) Other audit activities conducted by the department of 5 community health or the department of consumer and industry serv- 6 ices pursuant to administrative rules. 7 (vi) Professional practice review documents disclosed under 8 1967 PA 270, MCL 331.531 to 331.533. 9 (vii) Evaluations or reviews, other than those listed in 10 subparagraphs (ii) to (vi), used only for in-service education or 11 quality assurance programs or required for accreditation or par- 12 ticipation in federally funded programs. 13 (viii) Mental health records. 14 (ix) Evaluations done by a department within a health facil- 15 ity for administrative purposes. 16 (x) Reports, records, and data governed under part 51 of the 17 public health code, 1978 PA 368, MCL 333.5101 to 333.5133. 18 (xi) Records governed under sections 6111 to 6113 of the 19 public health code, 1978 PA 368, MCL 333.6111 to 333.6113. 20 (e) "Health care provider" means a person who is licensed or 21 registered or otherwise authorized under article 15 of the public 22 health code, 1978 PA 368, MCL 333.16101 to 333.18838, to provide 23 health care in the ordinary course of business or practice of a 24 health profession. Health care provider does not include a 25 person who provides health care solely through the sale or dis- 26 pensing of drugs or medical devices or a psychiatrist, 00567'99 4 1 psychologist, social worker, or professional counselor who 2 provides only mental health services. 3 (f) "Health facility" means a health facility or agency 4 licensed under article 17 of the public health code, 1978 PA 368, 5 MCL 333.20101 to 333.22260, or any other organized entity where a 6 health care provider provides health care to patients. 7 (g) "Maintain", as related to health care information, means 8 to hold, possess, preserve, retain, store, or control health care 9 information. 10 (h) "Minor" means an individual who is less than 18 years of 11 age, but does not include an individual who is emancipated under 12 section 4 of 1968 PA 293, MCL 722.4. 13 (i) "Patient" means an individual, including, but not 14 limited to, a deceased individual, who receives or has received 15 health care. 16 (j) "Patient advocate", until April 1, 2000, means an indi- 17 vidual designated to make medical treatment decisions under sec- 18 tion 496 of the revised probate code, 1978 PA 642, MCL 700.496, 19 and on and after April 1, 2000, means an individual designated to 20 make medical treatment decisions under section 5506 of the 21 estates and protected individuals code, 1998 PA 386, 22 MCL 700.5506. 23 (k) "Patient's agent" means an individual or other person 24 described in section 5(1) and (2) who is not the patient. 25 (l) "Person" means an individual, corporation, estate, 26 trust, partnership, association, joint venture, government, 00567'99 5 1 governmental subdivision or agency, or other legal or commercial 2 entity. 3 (m) "Personal representative", until April 1, 2000, means 4 that term as defined in section 9 of the revised probate code, 5 1978 PA 642, MCL 700.9, and on and after April 1, 2000, means 6 that term as defined in section 1106 of the estates and protected 7 individuals code, 1998 PA 386, MCL 700.1106. 8 (n) "Third party payer" means a public or private health 9 care payment or benefits program that is created, authorized, or 10 licensed under the laws of this state, including, but not limited 11 to, all of the following: 12 (i) A health insurer. 13 (ii) A nonprofit health care corporation. 14 (iii) A health maintenance organization. 15 (iv) A preferred provider organization. 16 (v) A nonprofit dental care corporation. 17 (vi) Medicaid or medicare. 18 Sec. 5. (1) An adult patient, his or her guardian, his or 19 her patient advocate or conservator, any other legal representa- 20 tive of the adult patient, or the parent or guardian of a patient 21 who is a minor has the right to access the adult patient's or 22 minor patient's health care information. The right of access 23 described in this subsection includes, but is not limited to, the 24 right to inspect and to copy at reasonable times health care 25 information generated by the health care provider or health 26 facility that provided the health care to the patient. 00567'99 6 1 (2) An individual described in subsection (1) may grant the 2 right of access described in subsection (1) to a third party 3 payer or other person with whom the individual enters into a con- 4 tract or who has a common law right to access to the individual's 5 health care information. 6 (3) An individual or other person described in subsections 7 (1) or (2) may exercise the right of access granted in subsection 8 (1) by making a request either orally or in writing to the health 9 care provider or health facility that maintains the health care 10 information that is the subject of the request. Upon receipt of 11 a request under this subsection, a health care provider or health 12 facility shall, as promptly as required under the circumstances, 13 but not later than 15 business days after receipt of the request, 14 do 1 or more of the following: 15 (a) Make the health care information available for inspec- 16 tion or copying, or both, at the health care provider's or health 17 facility's business location during regular business hours or 18 provide a copy of all or part of the health care information, as 19 requested by the patient or patient's agent. 20 (b) If the health care provider or health facility has con- 21 tracted with another person to maintain the health care 22 provider's or health facility's health care information, the 23 health care provider or health facility shall transmit a request 24 made under this subsection to the person maintaining the health 25 care information. The health care provider or health facility 26 shall retrieve the health care information from the person 00567'99 7 1 maintaining the health care information, and shall then comply 2 with subdivision (a). 3 (c) Inform the patient or the patient's agent if the health 4 care information does not exist or cannot be found. 5 (d) If the health care provider or health facility to which 6 the request is directed does not maintain the health care infor- 7 mation requested and does not have a contract with another person 8 as described in subdivision (b), so inform the patient or the 9 patient's agent and provide the name and address, if known, of 10 the health care provider or health facility that maintains the 11 health care information. 12 (e) If the health care provider is unavailable during the 13 period of 15 business days, upon becoming available, immediately 14 notify the patient or the patient's agent of the health care 15 provider's availability and complete the request within 15 busi- 16 ness days after becoming available. 17 Sec. 7. A health care provider or health facility that 18 receives a request for health care information under section 5 19 shall not inquire as to the purpose of the request. 20 Sec. 9. (1) Except as otherwise provided in subsections (3) 21 to (5), if a patient or the patient's agent makes a request for 22 health care information under section 5, the health care provider 23 or health facility to which the request is directed may charge 24 the patient or the patient's agent 1 or more of the following: 25 (a) A retrieval fee not to exceed $5.00 per request. 26 (b) Subject to subsection (3), if the health care provider 27 or health facility copies the health care information for the 00567'99 8 1 patient or the patient's agent, a copying fee of not more than 7 2 cents per 1 side of a letter- or legal-sized page. 3 (c) If the health care provider or health facility mails the 4 health care information to the patient or the patient's agent, 5 the actual postage incurred. 6 (2) A health care provider or health facility may charge a 7 fee under subsection (1) only for that part of the health care 8 information actually retrieved or copied, or both. A health care 9 provider or health facility may refuse to retrieve or copy health 10 care information for a patient or patient's agent until the 11 applicable fee is paid. 12 (3) The 7-cent-per-page limit set forth in subsection (1)(b) 13 does not apply to copies of x-rays, electroencephalogram trac- 14 ings, or other imaging records. A health care provider or health 15 facility may charge the actual cost of copying health care infor- 16 mation described in this subsection. 17 (4) A health care provider or health facility shall not 18 charge a fee for retrieving, copying, or mailing health care 19 information other than a fee allowed under subsection (1). A 20 health care provider or health facility shall waive all fees for 21 a patient who is a recipient of assistance from a state or fed- 22 eral program that provides medical assistance or other financial 23 assistance based on disability or income status. The health care 24 provider or health facility may require the patient or the 25 patient's agent to provide satisfactory proof that the patient is 26 a recipient of assistance as described in this subsection. 00567'99 9 1 (5) A patient or the patient's agent may supply his or her 2 own copying equipment on the premises of the health care provider 3 or health facility and pay only the retrieval fee allowed under 4 subsection (1)(a). 5 Sec. 11. (1) A health care provider or health facility that 6 maintains a patient's health care information shall create a 7 notice of information practices that contains substantially the 8 following language: 9 "NOTICE 10 We keep a record of the health care we provide you. You may 11 ask us to see and copy that record. The cost to you of copying 12 that record is 7 cents per page plus a retrieval fee of not more 13 than $5.00 per request. We will not disclose your record to 14 others unless you direct us to do so or unless the law authorizes 15 or compels us to do so. You may see your record or get more 16 information about it at ____________________.". 17 (2) A health care provider or health facility shall post a 18 copy of the notice of information practices required under sub- 19 section (1) in a conspicuous place that is accessible by 20 patients. 21 Sec. 13. (1) The department of consumer and industry serv- 22 ices shall impose administrative sanctions on a health care pro- 23 vider who violates this act in the same manner as administrative 24 sanctions are imposed on health professionals under article 15 of 25 the public health code, 1978 PA 368, MCL 333.16101 to 333.18838. 26 The department shall impose only a reprimand, restitution, or a 00567'99 10 1 fine of not more than $500.00 per violation under this 2 subsection. 3 (2) The department of consumer and industry services shall 4 impose administrative sanctions on a health facility that vio- 5 lates this act in the same manner as administrative sanctions are 6 imposed on licensed health facilities and agencies under article 7 17 of the public health code, 1978 PA 368, MCL 333.20101 to 8 333.22260. The department shall impose only a fine of not more 9 than $500.00 per violation under this subsection. 10 (3) The department or an individual making a request for 11 health care information under this act may seek injunctive relief 12 through the attorney general or the prosecuting attorney for the 13 county in which a violation of this act occurs. The circuit 14 court in which a petition is filed under this subsection may 15 restrain and enjoin a violation of this act or may compel compli- 16 ance with this act. 17 (4) A patient or a patient's agent may bring a civil action 18 for damages against a health care provider or a health facility 19 for a violation of this act. The court may award actual damages 20 or $250.00, whichever is greater, along with reasonable attorney 21 fees and costs. 00567'99 Final page. CPD