Senate Bill No. 363

(By Senators Kessler (Acting President), Plymale, Minard and Klempa)

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[Introduced February 1, 2011; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-29-3, relating to retention and destruction of health care records by physicians, osteopaths and dentists; setting forth the time periods records must be kept for different classes of patients; setting forth how records may be destroyed; and defining terms.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §16-29-3, to read as follows:

ARTICLE 29. HEALTH CARE RECORDS.

§16-29-3. Retention and destruction of health care records by               physicians, osteopaths and dentists.

    (a) The health care records of any person who is not a minor or not under a disability, or both, and who is under a physician’s, osteopath’s or dentist’s care, shall be retained by the custodian of those records for seven years following the last date of treatment or contact. The health care records of any minor shall be retained for a minimum of two years following the minor’s attaining the age of majority or seven years following the last date of treatment or contact, whichever comes later. The health care records of any person under a disability shall be retained for a minimum of two years following the removal of the disability or seven years following the last date of treatment or contact, whichever comes later. The health care records of a deceased person shall be retained for a minimum of seven years following the person’s date of death. However, the custodian shall retain master patient indices permanently.

    (b) The health care records may be computerized or otherwise copied by the use of microfilm or any other similar electronic or photographic process: Provided, That the method used shall create an unalterable record. In that event the original records may be destroyed.

    (c) Diagnostic media filed with the medical record is subject to subsection (a) of this section. Diagnostic media retained separately from the medical record shall be retained for at least five years, after which they may be presented to the patient or destroyed: Provided, That interpretations or separate reports of diagnostic media are subject to subsection (a) of this section.

    (d) If the custodian of any health care records subject to this section ceases operation, he or she shall notify the Department of Health and Human Resources in writing of the arrangements it has made for retention of those health care records. If the department does not approve of the arrangements, it shall notify the custodian of its disapproval within thirty days of receipt of the notice and shall assist the custodian in making alternate arrangements of which the department approves. If the custodian is succeeded by another person, compliance with this section shall rest with the successor.

    (e) Health care records may be destroyed after the retention period set forth in subsection (a) of this section, or after copying into an unalterable form, in a manner that will preserve the confidentiality of the information in those records: Provided, That the custodian shall retain master patient indices permanently. The health care records may be destroyed by incineration, shredding or pulping but may not be buried as a means of destruction and shall be destroyed only in compliance with state and federal environmental laws.

    (f) Nothing in this section prohibits the retention of health care records beyond the periods described in this section or prohibits patient access to health care records as provided in section one of this article. This section also does not negate any other requirements in state or federal law.

    (g) The following terms have the following definitions as used in this section:

    (1) "Custodian" means a physician, osteopath or dentist.

    (2) "Diagnostic media" includes laboratory slides, paraffin blocks, X-ray films, electroencephalogram tracings, video tapes, fetal strips, photographs and photographic images, the results of which are entered into the medical record by means of written interpretation.

    (3) "Master patient indices" means, with respect to a physician, osteopath or dentist, basic information including the patient’s name and birth date, a list of dated diagnoses and intrusive treatments and a record of all drugs prescribed or given.

    (4) "Minor" means a person under the age of eighteen.

    NOTE: The purpose of this bill is to provide time frames for retention of medical records following last dates of treatment or contact, after which time such records may be destroyed. The records would have to be retained for seven years with exceptions for minors and disabled persons. The bill limits its application to physicians, osteopaths, and dentists. The bill sets forth how records may be destroyed. The bill also defines terms.

    This section is new; therefore, strike-throughs and underscoring have been omitted.