Bill Text: MI HB5783 | 2017-2018 | 99th Legislature | Engrossed

Michigan House Bill 5783 (Prior Session Legislation)

Bill Title: Health; medical records; provision for the protection, retention, and maintenance of medical records referencing a vaginal or anal penetration treatment for 15 years by a health professional and health facility or agency; implement. Amends secs. 16213, 16299, 20175, 20175a & 20199 of 1978 PA 368 (MCL 333.16213 et seq.) & adds secs. 16213a, 17023, 17523 & 20175b.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2018-06-07 - Referred To Committee Of The Whole [HB5783 Detail]

Download: Michigan-2017-HB5783-Engrossed.html

HB-5783, As Passed House, May 24, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5783

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 16213, 16299, 20175, 20175a, and 20199 (MCL

333.16213, 333.16299, 333.20175, 333.20175a, and 333.20199),

sections 16213 and 20175a as added and section 20175 as amended by

2006 PA 481 and section 16299 as amended by 2012 PA 499, and by

adding sections 16213a, 16429, 17029, 17529, 17829, 17909, and

20175b.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 16213. (1) An individual licensed under this article

shall keep and maintain a record for each patient for whom he or

she has provided medical services, including a full and complete

record of tests and examinations performed, observations made, and

treatments provided. If a medical service provided to a patient on

or after the effective date of the amendatory act that added this

sentence involves the vaginal or anal penetration of the patient,

an individual licensed under this article shall expressly state in

the patient's record that vaginal or anal penetration was performed

unless the medical service meets any of the circumstances described

in subsection (2)(b)(i), (ii), (iii), or (iv).

(2) Unless a longer retention period is otherwise required

under federal or state laws or regulations or by generally accepted

standards of medical practice, a licensee shall keep and retain

each record ~~for~~ required under subsection (1) as follows:

(a) Except as otherwise provided in subdivision (b), for a

minimum of 7 years from the date of service to which the record

pertains.

(b) If the record is for a medical service performed on or

after the effective date of the amendatory act that added this

subdivision that involves the vaginal or anal penetration of a

patient, for a minimum of 15 years from the date of service to

which the record pertains. This subdivision does not apply to a

record for any of the following:

(i) A medical service that primarily relates to the patient's

urological, gastrointestinal, reproductive, gynecological, or

sexual health.

(ii) A medical service that is necessary and associated with

or incident to a medical emergency. As used in this subparagraph,

"medical emergency" means a circumstance that, in the licensee's

good-faith medical judgment, creates an immediate threat of serious

risk to the life or physical health of the patient.

(iii) A medical service performed for the purpose of rectally

administering a drug or medicine.

(iv) A medical service performed to measure a patient's

temperature.

(3) The records ~~shall~~ required under subsection (1) must be

maintained in such a manner as to protect their integrity, to

ensure their confidentiality and proper use, and to ensure their

accessibility and availability to each patient or his or her

authorized representative as required by law.

(4) A Except as otherwise provided in subsection (7), a

licensee may destroy a record required under subsection (1) that is

less than 7 years old only if both of the following are satisfied:

(a) The licensee sends a written notice to the patient at the

last known address of that patient informing the patient that the

record is about to be destroyed, offering the patient the

opportunity to request a copy of that record, and requesting the

patient's written authorization to destroy the record.

(b) The licensee receives written authorization from the

patient or his or her authorized representative agreeing to the

destruction of the record.

(5) ~~(2)~~ If a licensee is unable to comply with this section,

the licensee shall employ or contract, arrange, or enter into an

agreement with another health care provider, a health facility or

agency, or a medical records company to protect, maintain, and

provide access to those records required under subsection (1).

(6) ~~(3)~~ If a licensee or registrant sells or closes his or her

practice, retires from practice, or otherwise ceases to practice

under this article, the licensee or the personal representative of

the licensee, if the licensee is deceased, shall not abandon the

records required under this section and shall send a written notice

to the department that specifies who will have custody of the

medical records and how a patient may request access to or copies

of his or her medical records and shall do either of the following:

(a) Transfer the records required under subsection (1) to any

of the following:

(i) A successor licensee.

(ii) If requested by the patient or his or her authorized

representative, to the patient or a specific health facility or

agency or other health care provider licensed under article 15.

(iii) A health care provider, a health facility or agency, or

a medical records company with which the licensee had contracted or

entered into an agreement to protect, maintain, and provide access

to those records required under subsection (1).

(b) In Except as otherwise provided in subsection (7), and in

accordance with ~~subsection (1),~~ subsections (1) to (4), as long as

the licensee or the personal representative of the licensee, if the

licensee is deceased, sends a written notice to the last known

address of each patient for whom he or she has provided medical

services and receives written authorization from the patient or his

or her authorized representative, destroy the records required

under subsection (1). The notice ~~shall~~ must provide the patient

with 30 days to request a copy of his or her record or to designate

where he or she would like his or her medical records transferred

and ~~shall~~ must request from the patient within 30 days written

authorization for the destruction of his or her medical records. If

Except as otherwise provided in subsection (7), if the patient

fails to request a copy or transfer of his or her medical records

or to provide the licensee with written authorization for the

destruction, then the licensee or the personal representative of

the licensee shall not destroy those records that are less than 7

years old but may destroy, in accordance with subsection ~~(4),~~ (8),

those that are 7 years old or older.

(7) A licensee or the personal representative of a licensee,

if the licensee is deceased, shall only destroy a record described

in subsection (2)(b) in accordance with subsection (8).

(8) ~~(4)~~ Except as otherwise provided under this section or

federal or state laws and regulations, records required to be

maintained under subsection (1), other than a record described in

subsection (2)(b), may be destroyed or otherwise disposed of after

being maintained for 7 years and records described in subsection

(2)(b) may be destroyed or otherwise disposed of after being

maintained for 15 years. If records maintained in accordance with

this section are subsequently destroyed or otherwise disposed of,

those records ~~shall~~ must be shredded, incinerated, electronically

deleted, or otherwise disposed of in a manner that ensures

continued confidentiality of the patient's health care information

and any other personal information relating to the patient. If

records are not destroyed or otherwise disposed of as provided

under this subsection, the department may take action including,

but not limited to, contracting for or making other arrangements to

ensure that those records and any other confidential identifying

information related to the patient are properly destroyed or

disposed of to protect the confidentiality of patient's health care

information and any other personal information relating to the

patient. Before the department takes action in accordance with this

subsection, the department, if able to identify the licensee

responsible for the improper destruction or disposal of the medical

records at issue, shall send a written notice to that licensee at

his or her last known address or place of business on file with the

department and provide the licensee with an opportunity to properly

destroy or dispose of those medical records as required under this

subsection unless a delay in the proper destruction or disposal may

compromise the patient's confidentiality. The department may assess

the licensee with the costs incurred by the department to enforce

this subsection.

(9) ~~(5) A~~ Except as otherwise provided in section 16213a, a

person ~~who~~ that fails to comply with this section is subject to an

administrative fine of not more than $10,000.00 if the failure was

the result of gross negligence or willful and wanton misconduct.

(10) ~~(6)~~ Nothing in this section shall be construed to create

or change the ownership rights to any medical records.

(11) ~~(7)~~ As used in this section:

(a) "Medical record" or "record" means information, oral or

recorded in any form or medium, that pertains to a patient's health

care, medical history, diagnosis, prognosis, or medical condition

and that is maintained by a licensee in the process of providing

medical services.

(b) "Medical records company" means a person who contracts for

or agrees to protect, maintain, and provide access to medical

records for a health care provider or health facility or agency in

accordance with this section.

health care from a health care provider or health facility or

agency. Patient includes a guardian, if appointed, and a parent,

guardian, or person acting in loco parentis, if the individual is a

minor, unless the minor lawfully obtained health care without the

consent or notification of a parent, guardian, or other person

acting in loco parentis, in which case the minor has the exclusive

right to exercise the rights of a patient under this section with

respect to his or her medical records relating to that care.

Sec. 16213a. (1) Except as otherwise provided in subsections

(2) and (3), a person that violates section 16213(1) regarding the

documentation of a medical service involving vaginal or anal

penetration in a patient's medical record is subject to an

administrative fine or guilty of a crime as follows:

(a) For a first violation, an administrative fine of not more

than $1,000.00.

(b) For a second violation, an administrative fine of not more

than $2,500.00.

punishable by imprisonment for not more than 180 days or a fine of

not more than $5,000.00, or both.

(2) A person that violates section 16213(1) regarding the

documentation of a medical service involving vaginal or anal

penetration in a patient's medical record is guilty of a

misdemeanor punishable by imprisonment for not more than 180 days

or a fine of $5,000.00, or both, if the violation was the result of

gross negligence.

(3) A person that intentionally violates section 16213(1)

regarding the documentation of a medical service involving vaginal

or anal penetration in a patient's medical record is guilty of a

felony punishable by imprisonment for not more than 2 years or a

fine of not more than $7,500.00, or both.

(4) This section does not limit any other sanction or

additional action a disciplinary subcommittee is authorized to

impose or take.

Sec. 16299. (1) Except as otherwise provided in subsection

(2), a person who violates or aids or abets another in a violation

of this article, other than those matters described in sections

16294 and 16296, is guilty of a misdemeanor punishable as follows:

(a) For the first offense, by imprisonment for not more than

90 days , or a fine of not more than $100.00, or both.

(b) For the second or subsequent offense, by imprisonment for

not less than 90 days nor more than 6 months , or a fine of not

less than $200.00 nor more than $500.00, or both.

(2) Subsection (1) does not apply to a violation of section

17015, 17015a, 17017, 17515, or 17517, or to a violation of this

article for which another criminal penalty is specifically

prescribed.

Sec. 16429. (1) The board shall create a document that

provides guidance to licensees on generally accepted standards of

practice for services involving vaginal or anal penetration,

including internal pelvic floor treatments. In creating the

document described in this subsection, the board shall consult with

appropriate professional associations and other interested

stakeholders.

(2) The board shall make the document required under

subsection (1) publicly available by 1 year after the effective

date of the amendatory act that added this section.

Sec. 17029. (1) The board shall create a document that

provides guidance to licensees on generally accepted standards of

medical practice for medical services involving vaginal or anal

penetration, including internal pelvic floor treatments but

excluding medical services that primarily relate to a patient's

urological, gastrointestinal, reproductive, gynecological, or

sexual health, that are performed to measure a patient's

temperature, or that are performed for the purpose of rectally

administering a drug or medicine. In creating the document

described in this subsection, the board shall consult with

appropriate professional associations and other interested

stakeholders.

(2) The board shall make the document required under

subsection (1) publicly available by 1 year after the effective

date of the amendatory act that added this section.

Sec. 17529. (1) The board shall create a document that

provides guidance to licensees on generally accepted standards of

medical practice for medical services involving vaginal or anal

penetration, including internal pelvic floor treatments but

excluding medical services that primarily relate to a patient's

urological, gastrointestinal, reproductive, gynecological, or

sexual health, that are performed to measure a patient's

temperature, or that are performed for the purpose of rectally

administering a drug or medicine. In creating the document

described in this subsection, the board shall consult with

appropriate professional associations and other interested

stakeholders.

(2) The board shall make the document required under

subsection (1) publicly available by 1 year after the effective

date of the amendatory act that added this section.

Sec. 17829. (1) The board shall create a document that

provides guidance to licensees on generally accepted standards of

practice for services involving vaginal or anal penetration,

including internal pelvic floor treatments. In creating the

document described in this subsection, the board shall consult with

appropriate professional associations and other interested

stakeholders.

(2) The board shall make the document required under

subsection (1) publicly available by 1 year after the effective

date of the amendatory act that added this section.

Sec. 17909. (1) The board shall create a document that

provides guidance to licensees on generally accepted standards of

practice for services involving vaginal or anal penetration,

including internal pelvic floor treatments. In creating the

document described in this subsection, the board shall consult with

appropriate professional associations and other interested

stakeholders.

(2) The board shall make the document required under

subsection (1) publicly available by 1 year after the effective

date of the amendatory act that added this section.

Sec. 20175. (1) A health facility or agency shall keep and

maintain a record for each patient, including a full and complete

record of tests and examinations performed, observations made,

treatments provided, and in the case of a hospital, the purpose of

hospitalization. If a medical service provided to a patient on or

after the effective date of the amendatory act that added this

sentence involves the vaginal or anal penetration of the patient, a

health facility or agency shall ensure that the patient's medical

record expressly states that vaginal or anal penetration was

performed unless the medical service meets any of the circumstances

described in subsection (2)(b)(i)(A), (B), (C), or (D).

(2) Unless a longer retention period is otherwise required

under federal or state laws or regulations or by generally accepted

standards of medical practice, a health facility or agency shall

keep and retain each record ~~for~~ required under subsection (1) as

follows:

(a) Except as otherwise provided in subdivision (b), for a

minimum of 7 years from the date of service to which the record

pertains.

(b) For a minimum of 15 years from the date of service to

which the record pertains if the service is performed on or after

the effective date of the amendatory act that added this

subdivision and 1 of the following applies:

(i) The record includes a medical service involving the

vaginal or anal penetration of a patient. This subparagraph does

not apply to a record for any of the following:

(A) A medical service that primarily relates to the patient's

urological, gastrointestinal, reproductive, gynecological, or

sexual health.

(B) A medical service that is necessary and associated with or

incident to a medical emergency. As used in this sub-subparagraph,

"medical emergency" means a circumstance that, in the good-faith

medical judgment of a health professional who is licensed under

article 15, creates an immediate threat of serious risk to the life

or physical health of the patient.

administering a drug or medicine.

(D) A medical service performed to measure a patient's

temperature.

(ii) The patient has filed a complaint with the health

facility or agency alleging sexual misconduct by an individual who

is employed by, under contract to, or granted privileges by the

health facility or agency. As used in this subparagraph, "sexual

misconduct" means the conduct described in section 90, 136, 145a,

145b, 145c, 520b, 520c, 520d, 520e, or 520g of the Michigan penal

code, 1931 PA 328, MCL 750.90, 750.136, 750.145a, 750.145b,

750.145c, 750.520b, 750.520c, 750.520d, 750.520e, or 750.520g,

regardless of whether the conduct resulted in a criminal

conviction.

(3) A health facility or agency shall maintain the records

required under subsection (1) in such a manner as to protect their

integrity, to ensure their confidentiality and proper use, and to

ensure their accessibility and availability to each patient or his

or her authorized representative as required by law.

(4) A Except as otherwise provided in subsection (6), a health

facility or agency may destroy a record required under subsection

(1) that is less than 7 years old only if both of the following are

satisfied:

(a) The health facility or agency sends a written notice to

the patient at the last known address of that patient informing the

patient that the record is about to be destroyed, offering the

patient the opportunity to request a copy of that record, and

requesting the patient's written authorization to destroy the

record.

(b) The health facility or agency receives written

authorization from the patient or his or her authorized

representative agreeing to the destruction of the record.

(5) Except as otherwise provided under federal or state laws

and regulations, records required to be maintained under ~~this~~

subsection (1), other than a record described in subsection (2)(b),

may be destroyed or otherwise disposed of after being maintained

for 7 years, and records described in subsection (2)(b) may be

destroyed or otherwise disposed of after being maintained for 15

years. If records maintained in accordance with this section are

subsequently destroyed or otherwise disposed of, those records

~~shall~~ must be shredded, incinerated, electronically deleted, or

otherwise disposed of in a manner that ensures continued

confidentiality of the patient's health care information and any

other personal information relating to the patient. If records are

not destroyed or otherwise disposed of as provided under this

subsection or subsection (4), the department may take action

including, but not limited to, contracting for or making other

arrangements to ensure that those records and any other

confidential identifying information related to the patient are

properly destroyed or disposed of to protect the confidentiality of

patient's health care information and any other personal

information relating to the patient. Before the department takes

action in accordance with this subsection, the department, if able

to identify the health facility or agency responsible for the

improper destruction or disposal of the medical records at issue,

shall send a written notice to that health facility or agency at

the last known address on file with the department and provide the

health facility or agency with an opportunity to properly destroy

or dispose of those medical records as required under this

subsection or subsection (4), unless a delay in the proper

destruction or disposal may compromise the patient's

confidentiality. The department may assess the health facility or

agency with the costs incurred by the department to enforce this

subsection. In addition to the sanctions set forth in section

20165, a hospital that fails to comply with this subsection or

subsection (4) is subject to an administrative fine of $10,000.00.

(6) A health facility or agency shall only destroy a record

described in subsection (2)(b) in accordance with subsection (5).

(7) ~~(2)~~ A hospital shall take precautions to ~~assure~~ ensure

that the records required by under subsection (1) are not

wrongfully altered or destroyed. A hospital that fails to comply

with this subsection is subject to an administrative fine of

$10,000.00.

(8) ~~(3)~~ Unless otherwise provided by law, the licensing and

certification records required by this article are public records.

(9) ~~(4)~~ Departmental officers and employees shall respect the

confidentiality of patient clinical records and shall not divulge

or disclose the contents of records in a manner that identifies an

individual except pursuant to court order or as otherwise

authorized by law.

(10) ~~(5)~~ A health facility or agency that employs, contracts

with, or grants privileges to a health professional licensed or

registered under article 15 shall report the following to the

department not more than 30 days after it occurs:

(a) Disciplinary action taken by the health facility or agency

against a health professional licensed or registered under article

15 based on the licensee's or registrant's professional competence,

disciplinary action that results in a change of employment status,

or disciplinary action based on conduct that adversely affects the

licensee's or registrant's clinical privileges for a period of more

than 15 days. As used in this subdivision, "adversely affects"

means the reduction, restriction, suspension, revocation, denial,

or failure to renew the clinical privileges of a licensee or

registrant by a health facility or agency.

(b) Restriction or acceptance of the surrender of the clinical

privileges of a licensee or registrant under either of the

following circumstances:

(i) The licensee or registrant is under investigation by the

health facility or agency.

(ii) There is an agreement in which the health facility or

agency agrees not to conduct an investigation into the licensee's

or registrant's alleged professional incompetence or improper

professional conduct.

terminates a contract or whose contract is not renewed instead of

the health facility or agency taking disciplinary action against

the health professional.

(11) ~~(6)~~ Upon request by another health facility or agency

seeking a reference for purposes of changing or granting staff

privileges, credentials, or employment, a health facility or agency

that employs, contracts with, or grants privileges to health

professionals licensed or registered under article 15 shall notify

the requesting health facility or agency of any disciplinary or

other action reportable under subsection ~~(5)~~ (10) that it has taken

against a health professional licensed or registered under article

15 and employed by, under contract to, or granted privileges by the

health facility or agency.

(12) ~~(7)~~ For the purpose of reporting disciplinary actions

under this section, a health facility or agency shall include only

the following in the information provided:

(a) The name of the licensee or registrant against whom

disciplinary action has been taken.

(b) A description of the disciplinary action taken.

(d) The date of the incident that is the basis for the

disciplinary action.

(13) ~~(8)~~ The records, data, and knowledge collected for or by

individuals or committees assigned a professional review function

in a health facility or agency, or an institution of higher

education in this state that has colleges of osteopathic and human

medicine, are confidential, ~~shall~~ must be used only for the

purposes provided in this article, are not public records, and are

not subject to court subpoena.

Sec. 20175a. (1) If a health facility or agency is unable to

comply with section 20175, the health facility or agency shall

employ or contract, arrange, or enter into an agreement with

another health facility or agency or a medical records company to

protect, maintain, and provide access to those records required

under section 20175(1).

(2) If a health facility or agency closes or otherwise ceases

operation, the health facility or agency shall not abandon the

records required to be maintained under section 20175(1) and shall

send a written notice to the department that specifies who will

have custody of the medical records and how a patient may request

access to or copies of his or her medical records and shall do

either of the following:

(a) Transfer the records required under section 20175(1) to

any of the following:

(i) A successor health facility or agency.

(ii) If designated by the patient or his or her authorized

representative, to the patient or a specific health facility or

agency or a health care provider licensed or registered under

article 15.

(iii) A health facility or agency or a medical records company

with which the health facility or agency had contracted or entered

into an agreement to protect, maintain, and provide access to those

records required under section 20175(1).

(b) In Except as otherwise provided in section 20175(6) and in

accordance with section 20175(1) to (5), as long as the health

facility or agency sends a written notice to the last known address

of each patient for whom he or she has provided medical services

and receives written authorization from the patient or his or her

authorized representative, destroy the records required under

section 20175(1). The notice ~~shall~~ must provide the patient with 30

days to request a copy of his or her record or to designate where

he or she would like his or her medical records transferred and

~~shall~~ must request from the patient within 30 days written

authorization for the destruction of his or her medical records. If

Except as otherwise provided in section 20175(6), if the patient

fails to request a copy or transfer of his or her medical records

or to provide the health facility or agency with written

authorization for the destruction, then the health facility or

agency shall not destroy those records that are less than 7 years

old but may destroy, in accordance with section 20175(1) to (5),

those that are 7 years old or older.

(3) Nothing in this section shall be conducted to create or

change the ownership rights to any medical records.

(4) A person that fails to comply with this section is subject

to an administrative fine of not more than $10,000.00 if the

failure was the result of gross negligence or willful and wanton

misconduct.

(5) As used in this section:

(a) "Medical record" or "record" means information, oral or

recorded in any form or medium, that pertains to a patient's health

care, medical history, diagnosis, prognosis, or medical condition

and that is maintained by a licensee in the process of providing

medical services.

(b) "Medical records company" means a person who contracts for

or agrees to protect, maintain, and provide access to medical

records for a health facility or agency in accordance with section

20175.