By Richard H. Adler, Attorney at Law
The Uniform Health Care Information Act adopted by the Washington State Legislature went into effect on July 28, 1991. The Act provides direction for health care providers, health care facilities, patients and other persons on access to medical records, and what can be charged for copies of records. Previously, most questions regarding access to medical records were governed by common law, professional ethics, or custom. The Act also creates a patient’s right to correct his/her medical record.
The Uniform Health Care Information Act can be found at RCW 70.02.005, et seq. The purposes of this new law are:
- Protection of patients’ privacy interests in health care matters;
- Enabling patients to make informed decisions about health care and correct inaccurate or incomplete information;
- Facilitating patients’ trust and confidence in their health care providers;
- Protection of patients’ interest in the proper use and disclosure of health care information.
TO WHOM THE ACT APPLIES
Health care provider defined as: Any person who is licensed, certified, registered, or otherwise authorized by law to provide health care in the ordinary course of business.
An individual who assists in the delivery of health care.
Agent or employee of a health care provider.
Patient defined as: An individual, including a deceased person, who receives or has received health care.
DEFINITION OF HEALTH CARE INFORMATION
Information, whether oral or recorded, that identifies a patient or could be readily associated with the identity of a patient and which directly relates to the patient’s health care. This includes charts, reports, correspondence, diagnostic studies, documents, x-rays, tissue and specimen slides, and photographs.
RELATIONSHIP BETWEEN THE ACT AND OTHER STATE AND FEDERAL DISCLOSURE STATUTES
The Act does not modify terms and conditions of disclosure or rules adopted by the following:
- Title 51 Industrial Insurance
- RCW 13.50 Juvenile Justice
- RCW 26.09 Domestic Relations
- RCW 70.24 Sexually Transmitted Diseases
- RCW 70.39 Hospital Health Care Services
- RCW 70.96(a) Drug And Alcohol Abuse Treatment
- RCW 71.05 Mental Illness And Treatment
- RCW 71.34 Mental Health Services For Minors
A patient must specifically authorize release of otherwise protected information regarding drug and alcohol treatment, sexually transmitted diseases, psychiatric disorders/mental health, and related diagnosis, testing or treatment. A general release of medical information is insufficient to authorize the release of this information.
The Act does not restrict a health care provider from complying with the obligations imposed by federal or state health care payment programs or laws.
VALID AUTHORIZATION FOR DISCLOSURE OF PATIENT INFORMATION TO SOMEONE OTHER THAN A PATIENT
Subject to very limited exceptions, health care information cannot be released without a patient’s written authorization. To be valid, a release or form authorizing disclosure of medical information must:
- Identify the patient;
- Identify the provider who is to make the disclosure;
- Identify the nature of information to be disclosed;
- Identify the name, address, and affiliation of the person to whom the information is being disclosed;
- Be written, dated, and signed by the patient.
If a release of information form is used to comply with the above requirements, the form must state that the period of its validity cannot exceed ninety (90) days.
Health care providers must chart all disclosures of information, except disclosures to insurance companies for payment of medical bills.
REVOCATION OF A RELEASE
A patient may revoke in writing a release or authorization for disclosure of information at any time, unless:
- Disclosure is required to effectuate payment for health care already provided; or
- Substantial action has been taken in reliance on the authorization.
A patient cannot take legal action against a health care provider for disclosures made in good faith reliance on a valid release if the patient has not given the care provider prior notice of revocation of the release.
REASONABLE CHARGES FOR COPIES
A health care provider may charge a reasonable fee, not to exceed the actual cost, for providing medical information. A request for information does not have to be honored until the fee is paid. RCW 36.18.020(9) defines a reasonable fee for copying records as $2.00 for the first page and $1.00 for each additional page. RCW 36.18.020(16) defines a reasonable fee for a records search as $8.00 per hour. The records search fee should not be charged for locating records that should be part of the patient’s active file.
If editing of records is required by statute, (i.e. release does not authorize disclosure of information regarding sexually transmitted diseases, HIV infection, AIDS, mental health problems, or drug abuse), or the release only authorizes release of specifically identified information, and the health care provider must edit or segregate the information from that which can be released, the provider may charge the usual and customary charge for a basic office visit.
DISCLOSURE OF INFORMATION WITHOUT A VALID AUTHORIZATION
In limited situations, health care providers may disclose information about a patient without the patient’s consent. These situations include:
- To a person the health care provider reasonably believes is providing health care to the patient;
- In the course of a quality assurance peer review;
- To an individual or entity providing administrative, legal, financial, or actuarial services for the disclosing provider;
- Oral disclosure to immediate family members or other persons with whom the patient is known to have a close, personal relationship, if such disclosure is in the furtherance of good medical or professional practice and the patient has not, given written instructions to the contrary;
- If disclosure will avoid or minimize imminent danger to the health or safety of the patient or another;
- To a previous health care provider, but only to the extent necessary to provide health care to the patient, and unless the patient has given written instructions, to the contrary;
- Disclosure to federal, state, and local public health and law enforcement authorities when required by law; or
- Disclosure pursuant to litigation (i.e., a discovery request, deposition, or trial testimony).
PATIENT REQUEST TO EXAMINE OR RECEIVE A COPY OF RECORDS
Patients may request to review or obtain copies of his/her records at any time. The charge for copies provided to the patient must be reasonable and not exceed the provider’s actual cost.
If the identity of the patient is known to the health care provider, the health care provider need not have the patient sign a formal authorization for disclosure of information; however, a notation should be made in the record that the patient has reviewed his/her file.
As promptly as possible, but no later than 15 working days after receipt of the request, the health care provider must do one of the following:
Make the information available for examination during regular business hours and, if requested, provide a copy to the patient;
Inform the patient if the information does not exist, and provide the contact information for the individual or business where the information can be found, if known to the provider;
If the information is in use or unusual circumstances have delayed handling the request, the patient must be informed orally and in writing a) the reasons for the delay, and b) the earliest date when the information will be available, which cannot be later than 21 working days after receipt of the request.
REFUSING PATIENT ACCESS TO RECORDS
A health care provider may deny a patient access to records only when he or she believes that the information in the record would be injurious to the patient, may result in danger to the life or safety of any individual, or when otherwise prohibited by law. If the health care provider denies patient access in part, he or she must segregate that information which he or she believes should not be released from that for which access may be permitted.
If a patient’s request for examination and copying of records is denied, in whole or in part, the patient must be advised of the right to have another provider, authorized under Washington law to treat the patient for the same condition, review the records to confirm whether or not the withheld information should be released to the patient. If the patient exercises this right, the provider must make the records or a copy available for examination for the purpose of the second opinion.
AMENDMENT OF RECORDS/PATIENTS STATEMENT OF DISAGREEMENT
The Act gives a patient the right, for purposes of accuracy and completeness, to request in writing that a provider amend the provider’s records of the patient’s health care information. If the health care provider agrees with the amendment, he or she must make the amendment within twenty-one (21) days after receiving the request. When amending the record, a health care provider must mark the entries in question and indicate where the amended information can be located. If a health care provider refuses to make the amendment or correction, he or she must allow the patient to file a written statement of disagreement, which must become part of the official record. The patient must be informed of his/her right to add a statement of disagreement to the record. The health care provider may charge the usual and customary fee for a basic office visit if the health care provider meets with the patient for discussion or amendment of the patient’s record.
ADVANCE NOTICE REQUIRED WHEN MEDICAL RECORDS ARE OBTAINED IN THE COURSE OF LITIGATION
Before serving a discovery request, such as a subpoena duces tecum, on a health care provider, or taking the health care provider’s deposition, defense attorneys must provide at least 14 days advance written notice to the health care provider and the patient or the patient’s attorney. This notice must be given before a subpoena for records deposition, oral deposition, order to appear at trial, or any other discovery request (i.e., deposition upon written questions) is valid.
The notice from the defense attorney must:
State the name of the health care provider for whom the information is sought;
State what health care information is sought;
Inform the patient and the health care provider of the right to seek a protective order. The notice must state the date by which a protective order directing the health care provider to not release information must be obtained, which cannot be less than 14 days after service or delivery of the notice.
Without written consent from the patient (i.e., a stipulated release signed by the patient) information sought by discovery request or compulsory process cannot be disclosed until the defense attorney has complied with the notice requirements.
If the attorney has complied with the notice requirement and no protective order has been issued, the provider must disclose the requested health care information. A copy of the subpoena duces tecum, subpoena for deposition, etc., must be made a part of the patient’s record. The advance notice should also be included in the patient’s file.
Request For Certification Of Records
Upon request, a provider shall certify that records were provided in compliance with the Uniform Medical Records Act. The certification is to be attached to the patient’s records being provided. The provider may charge $2.00 for certification of records in accordance with RCW 36.18.020(9). Certification may be postponed until the fee is paid.
Certification shall include the following information:
- The identity of the patient;
- The type of health care information included;
- The person to whom the information is being furnished;
- The provider or facility furnishing the information;
- The number of pages of information;
- The date the information is furnished; and
- The language “Certification verifies compliance with the Uniform Health Care Information Act”.
NOTICE OF INFORMATION PRACTICES
The Act requires all health care providers and facilities to display a “Notice of Information Practices” in a conspicuous place. This notice may also be in a consent form or provided with billing or other notice given to the patient. This notice must contain the following specific statutory language:
We keep a record of the health care services we provide you. You may ask us to see and copy that record. You may also ask us to correct the record. We will not disclose your record to others unless you direct us to do so or unless the law authorizes or compels us to do so. You may see your record or get more information about it at _______________.
A health care provider has a duty to adopt reasonable safeguards for the security of all health care information. Health care information must be maintained for at least one year following the patient’s last date of treatment or the last date of a request to review or copy the information.
PERSONS AUTHORIZED TO ACT FOR THE PATIENT
A person who is authorized to consent to health care for another (e.g., has power of attorney) may request disclosure of records.
A minor who is authorized to consent to health care without parental consent under federal or state law, and which fact is confirmed in writing, may also request disclosure.
If the patient is a minor, and parent consent is required for treatment, then the parent may exercise the rights of the patient under the Act. A health care provider may rely on the parent’s representation that he or she is authorized to consent to health care for the minor patient.
A personal representative of a deceased patient may exercise all of the deceased’s rights under this Act. If there is no personal representative, the persons who would have been authorized to make health care decisions for the deceased patient may exercise all of the deceased patient’s rights under this Act.
CIVIL REMEDIES AGAINST HEALTH CARE PROVIDERS WHO FAIL TO COMPLY WITH THE ACT
A person who has met the requirements of the Uniform Medical Records Act may take legal action against any health care provider or facility who fails to comply with the Act. A patient may not maintain an action against a health care provider for disclosures made in good faith reliance on a release or authorization, if the health care provider had no actual notice of revocation of the authorization.
There is a two-year statute of limitations on any legal action against a health care provider for failure to comply with the Uniform Medical Records Act calculated from the date the claimant is first aware of the health care provider’s failure to comply.
An individual properly bringing a legal action may ask the court for the following:
Order that the health care provider or other persons comply with the Act;
Order actual damages; and
Award reasonable attorney fees and all other expenses reasonably incurred by the prevailing party.
Note: The court may not award consequential or incidental damages (i.e., damages that would not ordinarily be a predictable result of a violation or may be incurred in mitigating actual damages arising from the violation). Also, the Consumer Protection Act is not applicable to violations of this Act. Most significantly, this means that punitive damages cannot be sought against the health care provider failing to comply with the Act. The state legislature also omitted any criminal sanction for violations of the Act.
As with any new comprehensive law, it is generally the intent of the legislature to regulate and create uniform practices. However, we can also expect new issues and questions to arise that will not be squarely answered by the new law. As questions arise for you or your staff concerning the Uniform Health Care Information Act, we will try to help you. Simply give us a call. At Adler Giersch, P.S., it is our job to represent our client’s rights as well as work together with our client’s health care providers.