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Services > HIPAA Legal Facts:

LINK TO CODES:  http://www.leginfo.ca.gov/calaw.html

HIPAA Facts

HIPAA…it’s the law !
       and we are committed to compliance

Effective 4/16/03, HIPAA (Health Insurance Portability & Accountability Act), the new federal law, went into effect to provide a national standard for information disclosure.

In an effort to clarify the concern and confusion created by this, Hard Copy is providing the following information that will enable everyone to clearly understand the requirements for the proper release of records pursuant to a subpoena or authorization. References are made to laws governing the HIPAA regulations, as well as other laws concerning the appropriate release of records.

SUBPOENA REQUIREMENTS

Notification to other parties:

Labor Code 4055.2  (applies to Workers Compensation Subpoenas)

“any party who subpoenas records in any proceeding under this division shall concurrent
            with service of the subpoena upon the person who has possession of the records, send a copy
            of the subpoena to all parties of record in the proceeding”   

Hard Copy is required to only send a copy of the subpoena to all parties, no notice is required.

CA Code of Civil Procedure 1985.3 (b) (e)  (applies to Civil Subpoenas)
“prior to the date called for in the subpoena…the subpoenaing party shall serve…on the
consumer whose records are being sought a copy of the subpoena…and of the notice”

“every copy of the subpoena…served on a consumer or his or her attorney…shall be accompanied by a notice…”

Hard Copy is required to send a copy of the subpoena and a notice to all parties.

Records are releasable by subpoena:

CA Civil Code 56.10 (a)
“no provider of health care…shall disclose medical information regarding a patient …without first obtaining an authorization, except as provided in subdivision (b) …”

CA Civil Code 56.10 (b)
“a provider of health care…shall disclose medical information if the disclosure is compelled by any of the following…(3) by a party to a proceeding before a court or administrative agency pursuant to a subpoena…”

45 CFR 164.512 (e)(ii)
“a covered entity may use or disclose protected health information without the written consent or authorization of the individual subject to the applicable requirements of this section.
                        (e) disclosures for judicial and administrative proceeding
                        (ii) in response to a subpoena”

Time frame for the release of records:

Labor Code

Workers’ Compensation Subpoenas are governed by the Labor Code. The time required for the release of records is “reasonable”.  Industry standards are 5 – 10 days.
           
CA Code of Civil Procedure 2020 (d) (1)
            “a deposition subpoena that commands only the production of records for copying…shall
            command compliance … on a date no earlier than 20 days after the issuance, or 15 days after
the service…whichever date is later”

CA Evidence Code 1560 (e)
“the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records”

Hard Copy must be given a six hour time slot for the copying of records.

Witness fees allowable for subpoenaed records:

CA Evidence Code 1563 (b) (6)
“where the records are delivered to…the deposition officer for…photocopying at the witness’ place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars”

            Hard Copy does the copying – the fee is $15.00.

CA Evidence Code 1653 (b) (1)
“ten cents per page for standard documents…clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty four dollars per hour, computed on the basis of six dollars per quarter hour, actual postage, and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person”

            The facility copies - $24.00 per hour and 10 cents per page.

AUTHORIZATION REQUIREMENTS

Time frame for the release of records:

CA Evidence Code 1158

“failure to make the records available…within five days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney’s fees, incurred in any proceeding to enforce this section”

            Records are to be made available within 5 days of service.

Who is allowed to copy:

CA Evidence Code 1158

“no copying may be performed by any medical provider or employer…when the requesting attorney has employed a professional photocopier…the presentation of the authorization by the agent on behalf of the attorney shall be sufficient proof that the agent is the attorney’s representative”

            Hard Copy must be allowed to copy the records.

Witness fees allowable for records requested by authorization:

CA Evidence Code 1158
“where the records are delivered to the attorney or the attorney’s representative for…photocopying at the record custodian’s place of business, the only fee for complying with the authorization shall not exceed fifteen dollars”

            Hard Copy does the copying – the fee is $15.00.

CA Evidence Code 1158
“ten cents per page for standard documents…clerical costs incurred in locating and making the records available to be billed at the maximum rate of sixteen dollars per hour, computed on the basis of six dollars per quarter hour, actual postage, and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person”

            The facility copies - $16.00 per hour and 10 cents per page.

Requirements for a valid authorization:

CA Civil Code 56.11
45 CFR 164.508

To be valid, an authorization must be in the following form:

  1. Printed in typeface no smaller than 14-point or handwritten by the person signing it.
  2. Clearly separate from any other language on the same page and signed with a signature that serves no purpose other than to sign the authorization.
  3. Signed and dated by patient or patient’s personal representative, and, if signed by the personal representative, describing the personal representative’s authority.
To be valid, an authorization must contain the following elements:
  1.  Name or other specific identification of health care provider
  2.  Name or other specific identification of the person(s) or class of persons to whom health care provider may make the requested disclosure
  3.  Description of the information to be used or disclosed that identifies the information in a specific and useful fashion
  4.  Description of the purpose of the use or disclosure, including and limitations on the use of the information
  5.  Statement that the recipient of the protected health information under the authorization is prohibited from re-disclosing the information, except with a written authorization or as specifically required or permitted by law
  6.  Statement that health care provider will not condition the provision of care or the receipt of benefits on the signing of the authorization
  7.  Statement that patient will receive a copy of the completed authorization form
  8.  A statement of the patient’s or patient’s personal representative’s right to revoke authorization in writing
  9.  Notification to patient or patient’s personal representative of whether disclosure will result in direct or indirect remuneration to health care provider
  10. Expiration date after which authorization is no longer valid

 

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