Minutes of November 4, 1998 Meeting

A meeting of the Law Revision Commission Committee on Confidentiality of Medical Records was held commencing at 4:00 p.m. on Wednesday, November 4, 1998 in Hearing Room 1A in the Legislative Office Building in Hartford, Connecticut. Those attending were: Commission member Committee Chairman Joseph J. Selinger, Jr.; advisors Charlotte Acquaviva, Lawrence Berliner, Regina Dacier, Joseph Grabarz, Mary H. Hess, Peter Kane, Richard J. Lynch, David W. Parke, Donald L. Roll for Robert Scalettar, Anita L. Schepker, Jeannette C. Schreiber, Mary Hughes Boyce Gelfman for Nadine Schwab, Patricia Shea, and Gail Sturgess; and Commission staff David Hemond.

Mr. Hemond called the meeting to order.

The minutes of the October 21 meeting, as corrected, were approved.

Mr. Hemond announced that Margo Goldman would be making a presentation to the Committee concerning proposed legislation in Massachusetts and issues on the federal level at the December 2 meeting.

The Committee then continued the review of the Uniform Health-Care Information Act (UHCIA), beginning with section 2-103 concerning revocation of authorizations.

No comments were made to section 2-103.

Under section 3-101, concerning the requirements and procedures for examination and copying, the following issues were raised:

Who is required to provide access for examination and copying? Should the draft include the concept of primary responsibility on the original provider? Are there appropriate exceptions to placing responsibility on the original provider? Mr. Hemond agreed to review other models and to prepare alternative language placing primary responsibility on the original provider.

The ten days provided for a response under 3-101(a) appear to be too short a time period. The analogous Privacy Act period is 30 days. It was tentatively agreed to revise the draft to implement a 30 day response period, with added language requiring a "timely" response within that 30 day period. That revision will require a corresponding revision to subdivision (4).

The 3-101(b) provisions require further review in the light of existing law. In particular, concern was expressed over the provision allowing the charging of the provider's actual cost. Mr. Hemond agreed to provide material concerning existing analogous provisions.

Concern was expressed over how the section played out with respect to x-rays and other material that might not, as a practical matter, be subject to copying.

A suggestion was made that language be added for a waiver of fees for an appropriate case where the requesting party could not pay.

Under section 3-102, denial of examination and copying, concern was again noted as to how or whether this section could be applied beyond the original provider.

It was suggested that existing standards be reviewed as to what was "medically harmful" information.

It was suggested that it should be clarified that information collected solely for a criminal proceeding against the patient falls within the subsection (a)(4) provision allowing denial with respect to information compiled for litigation, quality assurance, peer review, or administrative purposes. Concern was expressed that this provision not be usable to deny access to a patient to information that would otherwise be accessible as the patient's medical record.

Under subsection (b), last line, it was suggested that the language refer to the right "to receive a copy" rather than to "copy", given that, as a matter of practice, the requestor was not generally given direct access to the file to copy.

Under subsection (c), the Committee discussed the process that was appropriate where the provider denied access. Subsection (c) contemplates a process whereby the patient may designate an alternative provider to review the information. Concern was expressed over allowing a non-treating physician to trump a decision of the treating physician that release of the information could be medically harmful. This matter was of particular concern with respect to mental health patients who were not under voluntary treatment, although the concern also existed in other potential contexts. Alternative concerns were expressed that the patient not be arbitrarily denied access and that imposing a requirement for judicial resolution would chill the right to access. Mr. Hemond agreed to review possible alternative drafts.

Concern was also expressed as to how these rights to access were to be exercised with respect to minors and other protected persons.

Under sections 4-101, 4-102, and 4-103, concern was again expressed over the scope and as to which record holders would be required to respond to requests for correction or amendment. It was agreed that only the original provider ought to be authorized to actually correct or amend a record that he prepared, but that other rights and obligations might be appropriate with respect to subsequent record holders.

It was suggested that existing provisions and the NAIC model be reviewed as to the obligation to include a statement of disagreement or other information submitted by a patient.

The next meeting will pick up with review of Article V, with the goal of finishing the initial draft review. The next meeting is set for November 18, 1998 at 4:00 p.m. in the Legislative Office Building in Hartford, Connecticut. The meeting adjourned at 5:50 p.m.

Respectfully submitted,

 /S/

David L. Hemond
Reporter/Drafter

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