Time Frame for Production of Medical Records in Response to Patient Requests to Change July 1, 2007

Law & Analysis

Existing State Law Governing Inspection of Nursing Home Medical Records

California state law allows an adult patient or patient's representative to inspect the patient's records after presenting a written request and paying reasonable clerical costs incurred in locating and making the records available. (Health & Saf. Code §123100 et seq.) A health care provider must permit inspection during business hours within 5 working days after receipt of the written request. The inspection must be conducted by the patient or the patient's representative requesting the inspection. The patient or patient's representative may be accompanied by one other person of his or her choosing.

Existing State Law Governing Copying of Nursing Home Medical Records

An adult patient or patient's representative is entitled to copies of all or any portion of the patient's medical records that he or she has a right to inspect.¹ The health care provider must have the copies produced within 15 days from the date of the patient's written request. (Health & Saf. Code § 123110, subdiv. (b). If the records are being requested for the purpose of appealing a denial of a public benefit - e.g. Medi-Cal, SSI/SSP, or SSDI - where the denial is not being handled by a private attorney, the health care provider has 30 days in which to ensure the copies are transmitted after receiving the written request.

Federal Law Governing Inspection and Copying of Skilled Nursing Facility Records

In contrast to the state rules, 42 CFR 483.10 requires that the resident, or his or her legal representative, has the right upon an oral or written request, to access all records pertaining to himself or herself including current clinical records within 24 hours not including weekends or holidays. The resident or resident's legal representative has the right to purchase a copy of the medical records or any portion thereof "upon request and 2 working days advance notice to the facility." 42 CFR 483.10, subdivision, (b)(2).

New Provision Effective July 1, 2007

While the federal regulation apparently conflicts with California state law, the Health & Safety Code specifies that as of July 1, 2007, the federal regulation at 42 CFR 483.10 will apply to skilled nursing facilities, regardless of a resident's payment source, or the Medi-Cal or Medicare certification status of the skilled nursing facility. (Health & Saf. Code § 1599.1) (See also, Olszewski v. Scripps Health (2003) 30 Cal.4th 798, [while the regulation of public health and the cost of medical care is traditionally within the field of state police powers, federal regulations preempt state law where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."])

Conclusion

Even though existing state law allows a skilled nursing facility 5 days to produce a patient's medical records for inspection, and 15 days from the date of a written request for the production of copies, that rule will change as of July 1, 2007. Regardless of whether the request from a patient or patient's representative is in writing, or oral, a skilled nursing facility must make clinical records available for inspection within 24 hours of the request, not including weekends or holidays, and must provide a copy for purchase within 2 working days of a request.