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F I S C A L I M P A C T R E P O R T
SPONSOR HJC
ORIGINAL DATE
LAST UPDATED
8/17/08
8/19/08 HB
5/sHJC/aHFL#1/aHFL
#2/aSFL#1/aSFL#2/aS
FL#3/aSFL#4/aSFL#5/
aSFL#6/aCC
SHORT TITLE Electronic Medical Records Act
SB
ANALYST Francis/Earnest
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY09
FY10
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
SOURCES OF INFORMATION
LFC Files
Human Services Department (HSD)
Department of Health (DOH)
Taxation and Revenue Department (TRD)
SUMMARY
Synopsis of Conference Committee Substitute
The Conference Committee version:
1.
removes the immunity amended back by Senate Floor amendment #1
2.
strikes senate floor amendment #3 but replaces it with a modified version of the house
floor amendment. The section pertaining to rule promulgation now reads: “The agency
or political subdivision may only promulgate rules for the disclosure and protection of
electronic medical records.”
3.
Strikes the house floor amendment 2 and adds similar language prohibiting disclosure in
violation of state or federal law and without consent of the individual.
4.
Adds language to require a written waiver of liability if the exclusion of information
requested by an individual leads to harm.
5.
Adds a new section that releases a health care provider, record locator service, health care
institution or health information exchange from liability for any harm by the exclusion of
individual information if exclusion was requested by the individual.
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6.
Changes Senate floor amendment #4 to remove the words “third party,” changes “record
locator service” in the definition of health information exchange to “health information
exchange,” and adds “contains demographic information and location of” in lieu of
“locates health care” to the second definition.
7.
strikes senate floor amendment #5 that added an effective date.
8.
strikes the credit for electronic record equipment.
Synopsis of SFl Amendments #1, #2, #3, #4, #5 and #6
The House Judiciary Committee substitute for House Bill 5 as amended was amended five times
on the Senate Floor.
•
The first amendment restores the immunity to health care representatives for complying with
an information request from an apparent authority or denying a request based on a belief the
requestor lacked authority.
•
The second amendment includes provider groups, health care institutions or provider
organizations in the exception to a record locator service exclusion of information if the
entity provided a service to a patient requesting the exclusion.
•
The third amendment strikes house floor amendment one which expanded the scope of rules
promulgation to rules pertaining to the use, disclosure and protection of electronic records.
•
The fourth amendment redefines health information exchange and record locator service to
be more precise than the definition of the federal Health Insurance Portability and
Accountability Act of 1996.
•
The fifth amendment delays the start date to July 1, 2009.
•
The six amendment adds a tax credit to offset the costs of purchasing equipment to be used
for electronic record keeping. Senate Bill 13 creates a credit against personal income tax
liability for the purchase of equipment necessary for the processing, storage and transmittal
of patient medical records in electronic format in an amount equal to the cost of that
equipment. The credit may be deducted from the taxpayer’s income tax liability for the
taxable year in which the equipment was purchased and the four succeeding taxable years.
The credit for a single taxable year shall not exceed twenty percent of the total cost of the
equipment. Any individual who claims this credit for equipment owned by a business
association can only claim a credit in proportion to the individual’s interest in the business
association.
Synopsis of HFl Amendments #1 and #2
The House Judiciary Committee substitute for House Bill 5 was amended twice on the House
Floor. Amendment number one changes the prohibition on the promulgation of rules to allow the
Human Services Department to promulgate rules for the use, disclosure and protection of
electronic medical records as long as there are no rules that require the use of electronic records
other than to satisfy federal requirements.
The second amendment adds an additional requirement on the disclosure of information for
written consent of the individual.
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Synopsis of HJC Substitute
The House Judiciary Committee substitute for House Bill 5, the Electronic Medical Records Act,
will codify electronic records and establish parameters around the proper use and dissemination
of those records.
•
Electronic records and electronic signatures will satisfy any law requiring a written medical
record or signature.
•
Prohibits the use or disclosure of electronic medical records unless it is in connection with
treatment (which must be warranted by the requestor), authorized by patient or in accordance
with state or federal law.
•
Requires record locator services to properly document access to records and allow access to
audit log to the individual.
•
Allows patients to exclude information from their medical record that is stored with a record
locator service.
•
Allows for access to electronic records in emergencies that pose immediate threat to the life
of an individual.
•
Prohibits promulgation of rules.
Changes from Original bill:
The HJC substitute
•
Removes a paragraph that refers to the retention of documents relating to the electronic
delivery of documents, such as a fax cover page. (section 4)
•
Modifies the definition of “health care group purchaser” which explicitly excluded persons
licensed as a property and casualty or worker’s compensation insurer in the original and
excludes these insurers explicitly in a new section 8. (section 3)
•
Provides a way for a patient to request the audit log that the health information exchange
must keep on who accesses records. (Section 6)
•
Allows the dissemination of EMR information to be released if permitted by the patient or
permitted by state or federal law. (Section 6)
•
Eliminates the immunity health care representatives received under the original bill
•
Adds a section to prohibit the promulgation of rules.
FISCAL IMPLICATIONS
The Conference Committee version of HB5/CS/a does not have a fiscal impact.
SIGNIFICANT ISSUES
The bill is similar to House Bill 37 of the 2008 regular session, with the exclusion of provisions
requiring the New Mexico Health Information Technology Commission (HITC) to plan for the
expansion of electronic medical records. HB 37 passed the House but failed in the Senate during
the 2008 session. The HITC is working to develop a plan to increase the use of EMRs.
The Department of Health has implemented electronic medical records in all of its 49 public
health offices that provide clinical services across the state.
According to the Department of Health:
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A news report from Government Technology indicated a majority of people surveyed
agreed that Electronic Medical Records (EMRs) hold out the promise of: 1) significantly
decreasing medical errors, 2) significantly decreasing healthcare costs, and 3) improving
the quality of care by reducing unnecessary test and procedures. However, the majority
of them surveyed also were concerned that the adoption of EMRs will make it "more
difficult to ensure patients' privacy".
House Bill 5 would help alleviate these concerns by establishing the legal recognition of
electronic medical records and electronic signatures. It would also apply existing privacy
and retention requirements of paper medical records to electronic records. The Electronic
Medical Records Act would also specifically allow the use of aggregate data for
surveillance and monitoring activities.
HSD has indicated that this bill updates New Mexico’s laws to match the protection provided by
the federal Health Insurance Portability and Accountability Act (HIPAA) for electronic records.
A little less than 25% of office-based physicians nationwide have gone digital, and only 10%
write their prescriptions electronically according to data from the Centers for Disease Control
and Prevention. Health care providers have reported that the primary barriers to health
information technology adoption are high initial acquisition and implementation costs and the
disruptive effects on their practices during implementation.
The maintenance of proper medical records is an important part of providing proper medical
care. A recent report by the New Mexico Health Policy Commission (HPC) noted that one of the
major barriers to the implantation of proper medical record technology systems by physicians is
the significant capital costs associated with them. This bill would lessen those costs by
providing a tax credit equal to the cost of implementation, processing, storage, and physical
equipment associated with these systems.
NF:BE/mt:svb