H. B. 4396
(By Delegates Staggers, Campbell, Long,
Canterbury, Hatfield, Moye,
Fleischauer and Shook)
[Introduced February 4, 2008; referred to the
Committee on Health and Human Resources then the
Judiciary.]
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.
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.
(a) The health care records of all persons who are not minors
or under a disability, or both, shall be retained by the custodian
of such records for ten years following the last date of treatment
or contact. The health care records of minors shall be retained
for a minimum of two years following the age of majority or ten
years following the last date of treatment or contact, whichever
comes later. The health care records of all persons who are under a disability shall be retained for a minimum of two years following
the removal of the disability or ten years following the last date
of treatment or contact, whichever comes later. The health care
records of deceased persons shall be retained for a minimum of
seven years following the date of death.
(b) 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.
(g) Health care records exempt from the retention requirements
of this section are public health mass screening records; pupils'
health records and related school health records; preschool
screening program records; communicable disease reports; mass
testing epidemiological projects and studies records, including
consents; topical fluoride application consents; psychological test
booklets; laboratory profiles, hospital nutritionists' special diet
orders and similar records retained separately from the medical
record but duplicated within it; public health nurses' case records that do not contain any physician's direct notations; social
workers' case records; and diagnostic or evaluative studies for the
department of education of other state agencies.
(h) The following terms have the following definitions as used
in this section:
(1) "Custodian" means any health care provider that maintains
health care records in connection with its operations.
(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) "Health care records," when used with respect to inpatient
hospitalization, means the recorded documentation regarding the
hospitalization, including, but not limited to, those medical
histories, reports, summaries, diagnoses, prognoses, records of
treatments and medication ordered and given, notes, entries,
radiology reports and other written or graphic data prepared, kept,
made or maintained by hospitals that pertain to hospital
confinements or hospital services for which a physician order is
written.
(4) "Master patient indices" means, with respect to a
physician or other noninstitutional health care provider, 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, and, with respect to a hospital or other
institutional health care provider, basic information including the
patient's name and birth date, dates of admission and discharge,
names of attending physicians, final diagnosis, major procedures
performed, operative reports, pathology reports and discharge
summaries.
(5) "Minor" means a person under the age of eighteen.
NOTE: The purpose of this bill is to provide time frames (ten
years following the last date of treatment or contract for adults)
for retention of medical and other health care records, including
diagnostic media, and methods for destruction of the records.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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