COMMITTEE SUBSTITUTE
FOR
H. B. 4396
(By Delegates Staggers, Campbell, Long, Canterbury,
Hatfield, Moye, Fleischauer and Shook)
(Originating in the Committee on the Judiciary)
[February 24, 2008]
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.
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 such 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
such person's date of death.
(b) These health care records may be computerized or minified
by the use of microfilm or any other similar electronic or
photographic process: Provided, That the method used shall create
an unalterable record, after which the original records may be
destroyed.
(c) Diagnostic media filed with the medical record is subject
to the provisions of 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
retention ceases operation, it shall notify the Department of
Health and Human resources in writing of the arrangements it has made for retention of the 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, the burden of 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
minification, in a manner that will preserve the confidentiality of
the information in the 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.
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