HF 1726

2nd Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to health; establishing the Health Records Act; providing penalties;
proposing coding for new law in Minnesota Statutes, chapter 144; repealing
Minnesota Statutes 2006, section 144.335.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [144.291] MINNESOTA HEALTH RECORDS ACT.
new text end

new text begin Subdivision 1. new text end

new text begin Short title. new text end

new text begin Sections 144.291 to 144.298 may be cited as the
Minnesota Health Records Act.
new text end

new text begin Subd. 2. new text end

new text begin Definitions. new text end

new text begin For the purposes of sections 144.291 to 144.298, the following
terms have the meanings given.
new text end

new text begin (a) new text begin Affiliate. new text end "Affiliate" has the meaning given in section 144.6521, subdivision 3,
paragraph (b).
new text end

new text begin (b) new text begin Group purchaser. new text end "Group purchaser" has the meaning given in section 62J.03,
subdivision 6.
new text end

new text begin (c) new text begin Health record. new text end "Health record" means any information, whether oral or recorded
in any form or medium, that relates to the past, present, or future physical or mental health
or condition of a patient; the provision of health care to a patient; or the past, present, or
future payment for the provision of health care to a patient.
new text end

new text begin (d) new text begin Identifying information. new text end "Identifying information" means the patient's name,
address, date of birth, gender, parent's or guardian's name regardless of the age of the
patient, and other nonclinical data which can be used to uniquely identify a patient.
new text end

new text begin (e) new text begin Individually identifiable form. new text end "Individually identifiable form" means a form in
which the patient is or can be identified as the subject of the health records.
new text end

new text begin (f) new text begin Medical emergency. new text end "Medical emergency" means medically necessary care
which is immediately needed to preserve life, prevent serious impairment to bodily
functions, organs, or parts, or prevent placing the physical or mental health of the patient
in serious jeopardy.
new text end

new text begin (g) new text begin Patient. new text end "Patient" means a natural person who has received health care services
from a provider for treatment or examination of a medical, psychiatric, or mental
condition, the surviving spouse and parents of a deceased patient, or a person the patient
appoints in writing as a representative, including a health care agent acting according to
chapter 145C, unless the authority of the agent has been limited by the principal in the
principal's health care directive. Except for minors who have received health care services
under sections 144.341 to 144.347, in the case of a minor, patient includes a parent or
guardian, or a person acting as a parent or guardian in the absence of a parent or guardian.
new text end

new text begin (h) new text begin Provider. new text end "Provider" means:
new text end

new text begin (1) any person who furnishes health care services and is regulated to furnish the
services under chapter 147, 147A, 147B, 147C, 147D, 148, 148B, 148C, 148D, 150A,
151, 153, or 153A;
new text end

new text begin (2) a home care provider licensed under section 144A.46;
new text end

new text begin (3) a health care facility licensed under this chapter or chapter 144A;
new text end

new text begin (4) a physician assistant registered under chapter 147A; and
new text end

new text begin (5) an unlicensed mental health practitioner regulated under sections 148B.60 to
148B.71.
new text end

new text begin (i) new text begin Record locator service. new text end "Record locator service" means an electronic index of
patient identifying information that directs providers in a health information exchange to
the location of patient health records held by providers and group purchasers.
new text end

new text begin (j) new text begin Related health care entity. new text end "Related health care entity" means an affiliate of
the provider releasing the health records.
new text end

Sec. 2.

new text begin [144.292] PATIENT RIGHTS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin Patients have the rights specified in this section regarding the
treatment the patient receives and the patient's health record.
new text end

new text begin Subd. 2. new text end

new text begin Patient access. new text end

new text begin Upon request, a provider shall supply to a patient complete
and current information possessed by that provider concerning any diagnosis, treatment,
and prognosis of the patient in terms and language the patient can reasonably be expected
to understand.
new text end

new text begin Subd. 3. new text end

new text begin Additional patient rights. new text end

new text begin A patient's right specified in this section and
sections 144.293 to 144.298 are in addition to the rights specified in sections 144.651 and
144.652 and any other provision of law relating to the access of a patient to the patient's
health records.
new text end

new text begin Subd. 4. new text end

new text begin Notice of rights; information on release. new text end

new text begin A provider shall provide to
patients, in a clear and conspicuous manner, a written notice concerning practices and
rights with respect to access to health records. The notice must include an explanation of:
new text end

new text begin (1) disclosures of health records that may be made without the written consent of the
patient, including the type of records and to whom the records may be disclosed; and
new text end

new text begin (2) the right of the patient to have access to and obtain copies of the patient's health
records and other information about the patient that is maintained by the provider.
new text end

new text begin The notice requirements of this subdivision are satisfied if the notice is included with
the notice and copy of the patient and resident bill of rights under section 144.652 or if it
is displayed prominently in the provider's place of business. The commissioner of health
shall develop the notice required in this subdivision and publish it in the State Register.
new text end

new text begin Subd. 5. new text end

new text begin Copies of health records to patients. new text end

new text begin Except as provided in section
144.296, upon a patient's written request, a provider, at a reasonable cost to the patient,
shall promptly furnish to the patient:
new text end

new text begin (1) copies of the patient's health record, including but not limited to laboratory
reports, x-rays, prescriptions, and other technical information used in assessing the
patient's health conditions; or
new text end

new text begin (2) the pertinent portion of the record relating to a condition specified by the patient.
new text end

new text begin With the consent of the patient, the provider may instead furnish only a summary
of the record. The provider may exclude from the health record written speculations
about the patient's health condition, except that all information necessary for the patient's
informed consent must be provided.
new text end

new text begin Subd. 6. new text end

new text begin Cost. new text end

new text begin (a) When a patient requests a copy of the patient's record for
purposes of reviewing current medical care, the provider must not charge a fee.
new text end

new text begin (b) When a provider or its representative makes copies of patient records upon a
patient's request under this section, the provider or its representative may charge the
patient or the patient's representative no more than 75 cents per page, plus $10 for time
spent retrieving and copying the records, unless other law or a rule or contract provide for
a lower maximum charge. This limitation does not apply to x-rays. The provider may
charge a patient no more than the actual cost of reproducing x-rays, plus no more than
$10 for the time spent retrieving and copying the x-rays.
new text end

new text begin (c) The respective maximum charges of 75 cents per page and $10 for time provided
in this subdivision are in effect for calendar year 1992 and may be adjusted annually each
calendar year as provided in this subdivision. The permissible maximum charges shall
change each year by an amount that reflects the change, as compared to the previous year,
in the Consumer Price Index for all Urban Consumers, Minneapolis-St. Paul (CPI-U),
published by the Department of Labor.
new text end

new text begin (d) A provider or its representative must not charge a fee to provide copies of records
requested by a patient or the patient's authorized representative if the request for copies
of records is for purposes of appealing a denial of Social Security disability income or
Social Security disability benefits under title II or title XVI of the Social Security Act. For
the purpose of further appeals, a patient may receive no more than two medical record
updates without charge, but only for medical record information previously not provided.
For purposes of this paragraph, a patient's authorized representative does not include units
of state government engaged in the adjudication of Social Security disability claims.
new text end

new text begin Subd. 7. new text end

new text begin Withholding health records from patient. new text end

new text begin (a) If a provider reasonably
determines that the information is detrimental to the physical or mental health of the
patient, or is likely to cause the patient to inflict self harm, or to harm another, the provider
may withhold the information from the patient and may supply the information to an
appropriate third party or to another provider. The other provider or third party may
release the information to the patient.
new text end

new text begin (b) A provider shall release information upon written request unless, prior to the
request, a provider has designated and described a specific basis for withholding the
information as authorized by paragraph (a).
new text end

Sec. 3.

new text begin [144.293] RELEASE OR DISCLOSURE OF HEALTH RECORDS.
new text end

new text begin Subdivision 1. new text end

new text begin Release or disclosure of health records. new text end

new text begin Health records can be
released or disclosed as specified in subdivisions 2 to 9 and sections 144.294 and 144.295.
new text end

new text begin Subd. 2. new text end

new text begin Patient consent to release of records. new text end

new text begin A provider, or a person who
receives health records from a provider, may not release a patient's health records to a
person without:
new text end

new text begin (1) a signed and dated consent from the patient or the patient's legally authorized
representative authorizing the release;
new text end

new text begin (2) specific authorization in law; or
new text end

new text begin (3) a representation from a provider that the provider holds a consent from the
patient.
new text end

new text begin Subd. 3. new text end

new text begin Release from one provider to another. new text end

new text begin A patient's health record,
including, but not limited to, laboratory reports, x-rays, prescriptions, and other technical
information used in assessing the patient's condition, or the pertinent portion of the record
relating to a specific condition, or a summary of the record, shall promptly be furnished to
another provider upon the written request of the patient. The written request shall specify
the name of the provider to whom the health record is to be furnished. The provider who
furnishes the health record or summary may retain a copy of the materials furnished. The
patient shall be responsible for the reasonable costs of furnishing the information.
new text end

new text begin Subd. 4. new text end

new text begin Duration of consent. new text end

new text begin Except as provided in this section, a consent is
valid for one year or for a lesser period specified in the consent or for a different period
provided by law.
new text end

new text begin Subd. 5. new text end

new text begin Exceptions to consent requirement. new text end

new text begin This section does not prohibit the
release of health records:
new text end

new text begin (1) for a medical emergency when the provider is unable to obtain the patient's
consent due to the patient's condition or the nature of the medical emergency;
new text end

new text begin (2) to other providers within related health care entities when necessary for the
current treatment of the patient; or
new text end

new text begin (3) to a health care facility licensed by this chapter, chapter 144A, or to the same
types of health care facilities licensed by this chapter and chapter 144A that are licensed
in another state when a patient:
new text end

new text begin (i) is returning to the health care facility and unable to provide consent; or
new text end

new text begin (ii) who resides in the health care facility, has services provided by an outside
resource under Code of Federal Regulations, title 42, section 483.75(h), and is unable
to provide consent.
new text end

new text begin Subd. 6. new text end

new text begin Consent does not expire. new text end

new text begin Notwithstanding subdivision 4, if a patient
explicitly gives informed consent to the release of health records for the purposes and
restrictions in clauses (1) and (2), the consent does not expire after one year for:
new text end

new text begin (1) the release of health records to a provider who is being advised or consulted with
in connection with the releasing provider's current treatment of the patient;
new text end

new text begin (2) the release of health records to an accident and health insurer, health service plan
corporation, health maintenance organization, or third-party administrator for purposes of
payment of claims, fraud investigation, or quality of care review and studies, provided that:
new text end

new text begin (i) the use or release of the records complies with sections 72A.49 to 72A.505;
new text end

new text begin (ii) further use or release of the records in individually identifiable form to a person
other than the patient without the patient's consent is prohibited; and
new text end

new text begin (iii) the recipient establishes adequate safeguards to protect the records from
unauthorized disclosure, including a procedure for removal or destruction of information
that identifies the patient.
new text end

new text begin Subd. 7. new text end

new text begin Exception to consent. new text end

new text begin Subdivision 2 does not apply to the release of health
records to the commissioner of health or the Health Data Institute under chapter 62J,
provided that the commissioner encrypts the patient identifier upon receipt of the data.
new text end

new text begin Subd. 8. new text end

new text begin Record locator service. new text end

new text begin (a) A provider or group purchaser may send
patient identifying information and information about the location of the patient's health
records to a record locator service without consent from the patient. Except in the case of
a medical emergency, a provider participating in a health information exchange using a
record locator service cannot access patient identifying information and information
about the location of the patient's health records until the patient has provided consent.
The Minnesota Department of Health may not access the record locator service or receive
data from the record locator service. Only a provider may access patient identifying
information in a record locator service. The consent does not expire and may be revoked
by the patient at any time by providing written notice of the revocation to the provider.
new text end

new text begin (b) A health information exchange maintaining a record locator service or an entity
maintaining a record locator service for a health information exchange must maintain an
audit log of providers accessing information in a record locator service that minimally
contains information on:
new text end

new text begin (1) the identity of the provider accessing the information;
new text end

new text begin (2) the identity of the patient whose information was accessed by the provider; and
new text end

new text begin (3) the date the information was accessed.
new text end

new text begin (c) No group purchaser may in any way require a provider to participate in any
record locator service as a condition of payment or participation.
new text end

new text begin (d) A record locator service must provide a mechanism for patients to opt out of
including their identifying information and information about the location of their health
records in a record locator service. At a minimum, any consent form that permits a
provider to access a record locator service must include a check-box option that allows a
patient to completely opt out of the record locator service which shall be clearly displayed
to the patient. A provider participating in a health information exchange with a record
locator service who receives a patient's request to completely opt out of the record locator
service or to not have a specific provider contact in the record locator service shall be
responsible for removing the patient's information from the record locator service.
new text end

new text begin Subd. 9. new text end

new text begin Documentation of release. new text end

new text begin (a) In cases where a provider releases health
records without patient consent as authorized by law, the release must be documented in
the patient's health record. In the case of a release under section 144.294, subdivision 2, the
documentation must include the date and circumstances under which the release was made,
the person or agency to whom the release was made, and the records that were released.
new text end

new text begin (b) When a health record is released using a representation from a provider that
holds a consent from the patient, the releasing provider shall document:
new text end

new text begin (1) the provider requesting the health records;
new text end

new text begin (2) the identity of the patient;
new text end

new text begin (3) the health records requested; and
new text end

new text begin (4) the date the health records were requested.
new text end

Sec. 4.

new text begin [144.294] RECORDS RELATING TO MENTAL HEALTH.
new text end

new text begin Subdivision 1. new text end

new text begin Provider inquiry. new text end

new text begin Upon the written request of a spouse, parent,
child, or sibling of a patient being evaluated for or diagnosed with mental illness, a
provider shall inquire of a patient whether the patient wishes to authorize a specific
individual to receive information regarding the patient's current and proposed course of
treatment. If the patient so authorizes, the provider shall communicate to the designated
individual the patient's current and proposed course of treatment. Section 144.293,
subdivisions 2 and 4, apply to consents given under this subdivision.
new text end

new text begin Subd. 2. new text end

new text begin Disclosure to law enforcement agency. new text end

new text begin Notwithstanding section 144.293,
subdivisions 2 and 4, a provider must disclose health records relating to a patient's mental
health to a law enforcement agency if the law enforcement agency provides the name
of the patient and communicates that the:
new text end

new text begin (1) patient is currently involved in an emergency interaction with the law
enforcement agency; and
new text end

new text begin (2) disclosure of the records is necessary to protect the health or safety of the patient
or of another person.
new text end

new text begin The scope of disclosure under this subdivision is limited to the minimum necessary
for law enforcement to respond to the emergency. A law enforcement agency that obtains
health records under this subdivision shall maintain a record of the requestor, the provider
of the information, and the patient's name. Health records obtained by a law enforcement
agency under this subdivision are private data on individuals as defined in section 13.02,
subdivision 12, and must not be used by law enforcement for any other purpose.
new text end

new text begin Subd. 3. new text end

new text begin Records release for family and caretaker; mental health care. new text end

new text begin (a)
Notwithstanding section 144.293, a provider providing mental health care and treatment
may disclose health record information described in paragraph (b) about a patient to a
family member of the patient or other person who requests the information if:
new text end

new text begin (1) the request for information is in writing;
new text end

new text begin (2) the family member or other person lives with, provides care for, or is directly
involved in monitoring the treatment of the patient;
new text end

new text begin (3) the involvement under clause (2) is verified by the patient's mental health care
provider, the patient's attending physician, or a person other than the person requesting the
information, and is documented in the patient's medical record;
new text end

new text begin (4) before the disclosure, the patient is informed in writing of the request, the name
of the person requesting the information, the reason for the request, and the specific
information being requested;
new text end

new text begin (5) the patient agrees to the disclosure, does not object to the disclosure, or is
unable to consent or object, and the patient's decision or inability to make a decision is
documented in the patient's medical record; and
new text end

new text begin (6) the disclosure is necessary to assist in the provision of care or monitoring of the
patient's treatment.
new text end

new text begin (b) The information disclosed under this paragraph is limited to diagnosis, admission
to or discharge from treatment, the name and dosage of the medications prescribed, side
effects of the medication, consequences of failure of the patient to take the prescribed
medication, and a summary of the discharge plan.
new text end

new text begin (c) If a provider reasonably determines that providing information under this
subdivision would be detrimental to the physical or mental health of the patient or is
likely to cause the patient to inflict self harm or to harm another, the provider must not
disclose the information.
new text end

new text begin (d) This subdivision does not apply to disclosures for a medical emergency or
to family members as authorized or required under subdivision 1 or section 144.293,
subdivision 5, clause (1).
new text end

Sec. 5.

new text begin [144.295] DISCLOSURE OF HEALTH RECORDS FOR EXTERNAL
RESEARCH.
new text end

new text begin Subdivision 1. new text end

new text begin Methods of release. new text end

new text begin (a) Notwithstanding section 144.293,
subdivisions 2 and 4, health records may be released to an external researcher solely for
purposes of medical or scientific research only as follows:
new text end

new text begin (1) health records generated before January 1, 1997, may be released if the patient
has not objected or does not elect to object after that date;
new text end

new text begin (2) for health records generated on or after January 1, 1997, the provider must:
new text end

new text begin (i) disclose in writing to patients currently being treated by the provider that health
records, regardless of when generated, may be released and that the patient may object, in
which case the records will not be released; and
new text end

new text begin (ii) use reasonable efforts to obtain the patient's written general authorization that
describes the release of records in item (i), which does not expire but may be revoked or
limited in writing at any time by the patient or the patient's authorized representative;
new text end

new text begin (3) the provider must advise the patient of the rights specified in clause (4); and
new text end

new text begin (4) the provider must, at the request of the patient, provide information on how the
patient may contact an external researcher to whom the health record was released and
the date it was released.
new text end

new text begin (b) Authorization may be established if an authorization is mailed at least two
times to the patient's last known address with a postage prepaid return envelope and a
conspicuous notice that the patient's medical records may be released if the patient does
not object, and at least 60 days have expired since the second notice was sent.
new text end

new text begin Subd. 2. new text end

new text begin Duties of researcher. new text end

new text begin In making a release for research purposes, the
provider shall make a reasonable effort to determine that:
new text end

new text begin (1) the use or disclosure does not violate any limitations under which the record
was collected;
new text end

new text begin (2) the use or disclosure in individually identifiable form is necessary to accomplish
the research or statistical purpose for which the use or disclosure is to be made;
new text end

new text begin (3) the recipient has established and maintains adequate safeguards to protect the
records from unauthorized disclosure, including a procedure for removal or destruction of
information that identifies the patient; and
new text end

new text begin (4) further use or release of the records in individually identifiable form to a person
other than the patient without the patient's consent is prohibited.
new text end

Sec. 6.

new text begin [144.296] COPIES OF VIDEOTAPES.
new text end

new text begin A provider may not release a copy of a videotape of a child victim or alleged victim
of physical or sexual abuse without a court order under section 13.03, subdivision 6, or
as provided in section 611A.90. This section does not limit the right of a patient to view
the videotape.
new text end

Sec. 7.

new text begin [144.297] INDEPENDENT MEDICAL EXAMINATION.
new text end

new text begin This section applies to the subject and provider of an independent medical
examination requested by or paid for by a third party. Notwithstanding section 144.293, a
provider may release health records created as part of an independent medical examination
to the third party who requested or paid for the examination.
new text end

Sec. 8.

new text begin [144.298] PENALTIES.
new text end

new text begin Subdivision 1. new text end

new text begin Licensing action. new text end

new text begin A violation of sections 144.291 to 144.298 may
be grounds for disciplinary action against a provider by the appropriate licensing board
or agency.
new text end

new text begin Subd. 2. new text end

new text begin Allocation of liability. new text end

new text begin In adjudicating a dispute involving the disclosure
of patient health records, a court shall use the criteria in this subdivision in determining
how liability will be allocated.
new text end

new text begin (a) When requesting health records using consent, a person warrants that the consent:
new text end

new text begin (1) contains no information known to the person to be false; and
new text end

new text begin (2) accurately states the patient's desire to have health records disclosed or that there
is specific authorization in law.
new text end

new text begin (b) When requesting health records using consent or the representation authorized in
section 144.293, subdivision 2, a provider warrants that the request:
new text end

new text begin (1) contains no information known to the provider to be false;
new text end

new text begin (2) accurately states the patient's desire to have health records disclosed or that
there is specific authorization in law; and
new text end

new text begin (3) does not exceed any limits imposed by the patient in the consent.
new text end

new text begin (c) When disclosing health records, a person releasing health records warrants that
the person:
new text end

new text begin (1) has complied with the requirements of this section regarding disclosure of
health records;
new text end

new text begin (2) knows of no information related to the request that is false; and
new text end

new text begin (3) has complied with the limits set by the patient in the consent or as described
in the representation of consent.
new text end

new text begin (d) A court of this state presumes that:
new text end

new text begin (1) a request made by a person that complies with the provisions of this section is
valid and represents the wishes of the patient;
new text end

new text begin (2) the information listed in a consent or representation of consent is accurate;
new text end

new text begin (3) the recipient of a consent or representation of consent has no knowledge or
notice that the person making the request breached a duty to the patient or does not
rightfully have a consent;
new text end

new text begin (4) the signature on the consent or representation of consent is not forged;
new text end

new text begin (5) the consent or representation of consent was not obtained under false pretenses;
and
new text end

new text begin (6) the consent or representation of consent was not altered without the patient's
permission.
new text end

new text begin (e) No person or provider may disclaim or contractually limit the application of this
section, or obtain indemnity for its effects, if the disclaimer, limitation, or indemnity
restricts liability for misrepresentation against persons reasonably relying on the consent,
representation of consent, or disclosure.
new text end

new text begin (f) A court of this state shall give effect to liability allocations between the parties
provided by contract that does not allocate liability to the detriment of the patient and the
allocation is consistent with the requirements of sections 144.291 to 144.298.
new text end

new text begin (g) A patient is eligible to receive compensatory damages plus costs and reasonable
attorney fees if there is a negligent or intentional violation of sections 144.293 to 144.295.
new text end

new text begin Subd. 3. new text end

new text begin Liability for a record locator service. new text end

new text begin A patient is eligible to receive
compensatory damages plus costs and reasonable attorney fees if a health information
exchange maintaining a record locator service, or an entity maintaining a record locator
service for a health information exchange, negligently or intentionally violates the
provisions of section 144.293, subdivision 8.
new text end

Sec. 9. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 144.335, new text end new text begin is repealed.
new text end

Sec. 10. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin In Minnesota Statutes and Minnesota Rules, the revisor shall change the references
in column A with the references in column B.
new text end

new text begin Column A new text end	new text begin Column B new text end
new text begin section 144.335 new text end	new text begin sections 144.291 to 144.298 new text end
new text begin section 144.335, subdivision 1 new text end	new text begin section 144.291, subdivision 2 new text end
new text begin section 144.335, subdivision 1, paragraph (b) new text end	new text begin section 144.291, subdivision 2, paragraph (h) new text end
new text begin section 144.335, subdivision 2, paragraphs (a) and (b) new text end	new text begin section 144.292, subdivisions 2 and 5 new text end
new text begin section 144.335, subdivision 2 new text end	new text begin section 144.292 new text end
new text begin section 144.335, subdivision 3a new text end	new text begin section 144.294, subdivision 2 new text end
new text begin section 144.335, subdivision 3a, paragraph (d) new text end	new text begin section 144.295 new text end
new text begin section 144.335, subdivision 3a, paragraph (f) new text end	new text begin section 144.294 new text end
new text begin section 144.335, subdivision 3b new text end	new text begin section 144.293, subdivision 7 new text end