Bill Text: MI HB4370 | 2019-2020 | 100th Legislature | Introduced
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, and require certain boards to provide guidance to licensees on medical services involving vaginal or anal penetration. Amends secs. 16213, 16299, 20175, 20175a & 20199 of 1978 PA 368 (MCL 333.16213 et seq.) & adds secs. 16213a, 16429, 17029, 17529, 17829, 17909 & 20175b.
Spectrum: Moderate Partisan Bill (Democrat 35-7)
Status: (Engrossed - Dead) 2020-12-09 - Referred To Committee Of The Whole [HB4370 Detail]
Download: Michigan-2019-HB4370-Introduced.html
HOUSE BILL No. 4370
March 14, 2019, Introduced by Reps. Whiteford, Pagan, Griffin, Hornberger, Glenn, Alexander, Witwer, Pohutsky, Brixie, Clemente, Ellison, Hoadley, Hood, Hammoud, Guerra, Garza, Manoogian, LaGrand, Rendon, Bolden, Kuppa, Sabo, Elder, Koleszar, Sowerby, Camilleri, Hertel, Kennedy, Sneller, Tyrone Carter, Whitsett, Neeley, Shannon, Hauck, Tate, Lasinski, Greig, Byrd, Garrett, Jones, Warren and Gay-Dagnogo and referred to the Committee on Judiciary.
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.
(c) "Patient" means an individual who receives or has received
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.
(c) For a third or subsequent violation, a misdemeanor
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.
(C) A medical service performed for the purpose of rectally
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.
(c) A case in which a health professional resigns or
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.
(c) The specific grounds for 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.
(c) "Patient" means an individual who receives or has received
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. 20175b. (1) Except as otherwise provided in subsections
(2) and (3), a person that violates section 20175(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 $2,500.00.
(b) For a second violation, an administrative fine of not more
than $5,000.00.
(c) For a third or subsequent violation, a misdemeanor
punishable by imprisonment for not more than 180 days or a fine of
not more than $7,500.00, or both.
(2) A person that violates section 20175(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 $10,000.00, or both, if the violation was the result
of gross negligence.
(3) A person who intentionally violates section 20175(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 $10,000.00, or both.
(4) This section does not limit any other sanction the
department is authorized to impose under section 20165.
Sec. 20199. (1) Except as otherwise provided in subsection (2)
or
section 20142, or this
article, a person who that violates
this
article or a rule promulgated or an order issued under this article
is guilty of a misdemeanor, punishable by a fine of not more than
$1,000.00 for each day the violation continues or, in case of a
violation of sections 20551 to 20554, a fine of not more than
$1,000.00 for each occurrence.
(2)
A person who that violates sections 20181 to 20184 is
guilty
of a misdemeanor , punishable
by imprisonment for not more
than
6 months , or a
fine of not more than $2,000.00, or both.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.