Access to Medical Records in California Nursing Homes

1178513_samaritan.jpgCalifornia nursing homes must protect and promote the rights of every nursing home resident, including a resident’s right to access his or her own medical and financial records. Given this basic principle, the difficulties associated with obtaining copies of a resident’s medical records may understandably frustrate family members or residents themselves. However, it is important for residents and their families to remember that while both the federal Health Insurance Act (“HIPAA”) and the California Medical Information Act (“CMIA”) were passed to ensure that patient records are not disclosed to inappropriate parties, nursing home residents, their families, and appropriate third parties have a right to access the residents’ medical records. This means that residents and their family members/representatives not only have the right to inspect the medical records, but also have the right to copy and amend them as well.

A Resident’s Right to Inspect, Copy, and Amend Medical Records

Federal regulations require that upon the written or oral request of a resident, the resident be granted access to inspect all records pertaining to himself or herself including current clinical records within 24 hours (excluding weekends and holidays). In addition, pursuant to California law, nursing homes must also permit residents to obtain copies of their records. These copies must be provided to the resident within two business days of the request. Although the resident must bear the costs of making these copies, the cost of the copies cannot exceed twenty-five cents per page, plus reasonable clerical costs. Finally, under federal law, a nursing home has 60 days to respond to a request by a resident to amend inaccurate information that appears in his or her records. If the nursing home denies such a request, it must provide a written response describing the reasons for its denial and a notice of the resident’s right to file a disagreement and to request that the original amendment request and disagreement be included in the resident’s records.

A Third Party’s Right to a Resident’s Medical Records

It is important to remember that, as a representative, you also have a right to inspect and copy a loved one’s medical records. California law defines a representative as any of the following:

1.) the parent or guardian of a minor resident;
2.) the conservator of an adult resident;
3.) an agent under power of attorney for a resident’s health care decisions;
4.) a beneficiary of an inheritance, will, or trust; or
5.) a family member who is making health care decisions on behalf of an impaired resident.

In addition, a resident may also authorize other third parties to access medical records by signing a release form.

What To Do if You Are Denied Access to Medical Records

As mentioned above, due to the laws in place meant to protect a resident’s privacy, a resident or representative may encounter delays from the nursing home when trying to access medical records. Delaying or denying a resident or representative access to medical records or copies is illegal and a violation of both California and federal law. If a nursing home cites to HIPAA or CMIA when refusing or delaying access to records, you should remind the facility that if a representative has proper standing or authorization from the resident, the nursing home must provide access. Notably, even where a nursing home requires a resident or representative to wait over 24 hours to inspect records or 2 days to receive copies, the facility has violated the law.

To be safe, all requests to inspect or copy records should be made in writing. This will ensure that there is proper documentation in the event that a resident or representative has to file a complaint with the Department of Public Health and/or a lawsuit.

Christopher C. Walton is a California elder abuse attorney whose practice is dedicated to issues involving elder abuse. If you believe somebody you know is being denied access to their medical and/or financial records by a nursing home, please call (866) 338-7079 for a free and confidential consultation.

Related Blog Posts:

Investigation Reveals California Nursing Homes Falsify Medical Records
, California Elder Abuse Lawyer Blog