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Website last updated: July 22, 2008
Legislative
Update
July, 2007
Bishop/Fuller Replaced with New Protocol
Privileged Records
Commonwealth v. Dwyer
Supreme Judicial Court, December 29, 2006
The SJC has announced a new protocol governing requests by
defendants to inspect statutorily privileged records that
are in the possession of a third party. This new protocol
replaces the Bishop-Fuller protocol, and applies prospectively
to all criminal cases tried after the issuance of the rescript
of this case, which is expected to be January 26, 2007.
The defendant was charged with rape of a child and filed a
motion to review the victim’s therapy records. The motion
was denied and the defendant appealed, specifically challenging
the Bishop-Fuller protocol. After extensive review, the SJC
granted the defendant a new trial and issued the following
new protocol which is designed to provide “a reasonable
opportunity for defense counsel to inspect pretrial presumptively
privileged records produced by a third party, subject to a
stringent protective order.” Click
here for a summary of the protocol, which is
detailed in an appendix to the opinion.
Update on Record Retention Bill
SB1292
April 1, 2006
MEDICAL RECORD RETENTION BILL
MOVING TO THE SENATE -- Your immediate assistance is needed!
SB1292 (the Medical Record Retention bill) has moved favorably
out of the Health Care Financing Committee and is headed to
the Senate for a vote. PLEASE CONTACT YOUR SENATOR via
phone and/or email asking for their support of this bill.
Contact Marcia Estabrook, RHIA, Director, Advocacy/Legislation
at mestabrookadams@aol.com
if you need further information on this bill.
Thank you for your ongoing support.
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An Act Regarding Hospital Medical Record Retention
Requirements SB1292
Summary: This bill reduces an unnecessary
regulatory and administrative burden that results in high
costs to hospitals. The bill would reduce the medical record
retention period for hospitals from 30 years to 15 years (which
is (1) above the national average among other state laws -
which is 10; (2) greater than the Treasurer's recently amended
Abandoned Property Act requirements requiring all financial
records to be kept for nine years, (3) greater than the Federal
Medicare and Medicaid record retention laws of five years;
(4) higher than HIPAA provisions of six years; and (5) higher
than all other providers in the state, which are seven years).
The bill would also tie in appropriate safeguards for alerting
patients and the Department of Public Health prior to destroying
any records.
Section 1: Section 70 of chapter
111 of the General Laws, as appearing in the 2002 Official
Edition, is hereby amended by deleting the second and third
sentence in the first paragraph in their entirety and inserting
in place thereof the following two new sentences-
Such records may be made in handwriting, in print, by typewriting,
in electronic digital media or conversion to electronic digital
media as originally created by such hospital or clinic, by
the photographic or microphotographic process, or any combination
of the same. Such hospital or clinic, may only destroy said
records after the applicable retention period has elapsed
upon notifying the department of public health that the applicable
retention period has elapsed and the records will be destroyed.
Such Hospital or Clinic shall further provide information
through applicable provisions contained in the hospital or
clinic notice of privacy practices or through mailing a notice
to the patient's last known address that records will be terminated
after the applicable retention period has elapsed since the
last date of service.
Section 2: Section 70 of chapter
111 of the General Laws, as so appearing, is hereby amended
by deleting the word “thirty” in the last sentence of the
first paragraph and inserting in place thereof the word “fifteen”
Section 3 : Section 36 of Chapter
123 of the General Laws, as so appearing, is hereby amended
by adding at the end thereof the following new sentences-
Each facility, subject to provisions of this chapter and
Section 19 of Chapter 19 who provide mental health care and
treatment shall maintain records of individual patients',
records are so defined under section 70 of chapter 111, for
at least fifteen years after closing of the record due to
discharge, death, or last contact. Such facility may destroy
said records after the applicable retention period has elapsed
upon notifying the department that the applicable retention
period has elapsed and the records will be destroyed. Said
facility shall further provide information through applicable
provisions in the hospital or clinic notice of privacy practices
or through mailing a notice to the patient's last known address
that records will be terminated after the applicable retention
period has elapsed since the last date of service.
Section 4 : Application
of this Act
The Department of Public Health and the Department of Mental
Health shall consult with the Massachusetts Hospital Association,
the Massachusetts Medical Society, and the Massachusetts Association
of Behavioral Health Systems prior to developing regulations
required under this Act. Promulgation or amendment of said
regulations shall occur within 120 days of the effective date
of this Act.
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Chapter 135 of
the Acts of 2003
AN ACT ESTABLISHING REASONABLE FEES FOR COPYING MEDICAL
RECORDS
Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
as follows:
SECTION 1. Section 70 of Chapter 111
of the General Laws, as appearing in the 2002 Official
Edition, is hereby amended by striking out, in lines 25 and
26, the words, “and a copy shall be furnished upon the request
and a payment of a reasonable fee” and inserting in place
thereof the following words: - and a copy shall be furnished
upon the payment of a reasonable fee, which for the purposes
of this section shall mean a base charge of not more than
$15 for each request for a hospital or clinic medical record;
a per page charge of not more than $0.50 for each of the first
100 pages of a hospital or clinic medical record that is copied
per request; and not more than $0.25 per page for each page
in excess of 100 pages of a hospital or clinic medical record
that is copied per request.
SECTION 2. Said section 70 of said Chapter
111 , as so appearing, is hereby further amended by adding
the following paragraph:
The reasonable fee under this section may be adjusted to
reflect the consumer price index for medical care services,
such that the base amount and the per page charge shall be
increased by the proportional consumer price index in effect
as of October of the calendar year in which the request is
made, rounded to the nearest dollar. A hospital or clinic
may also charge an additional fee to cover the cost of postage,
other priority mailing and preparation of an explanation or
summary of the hospital or clinic medical record if so requested.
SECTION 3. Section 12CC of Chapter 112
of the General Laws, as so appearing, is hereby amended
by striking out, in lines 4 and 5, the words “and payment
of a reasonable fee shall make a copy of such patient's records”
and inserting in place thereof the following words: - a copy
of such patient's records shall be furnished upon payment
of a reasonable fee, as defined in section 70 of Chapter 111.
SECTION 4. For the purposes of determining
the applicable consumer price index set forth in section 2,
the period for applying the consumer price index rate increase
shall begin in the next calendar year after the effective
date of this act.
SECTION 5. This act shall take effect on
July 1, 2004.
Approved November 26, 2003.
Submitted by:
Joan Usher, RHIA
Vice-President – Legislative Affairs Committee
JLU Health Record Systems
2 Columbia Road
Pembroke, MA 02359
Email: JLUhome@comcast.net
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