TBCE Proposes Replacement of Rule 77.7
Written by Editor   
Wednesday, September 09, 2015 02:34 PM

The Texas Board of Chiropractic Examiners (Board) proposes the repeal of Chapter 77, §77.7, concerning Request for Information and Records from Licensees. The repeal is necessary in order to clarify, restructure and draft a new rule regarding Board procedures to provide concise and clear guidance to the public and licensees.

The TBCE proposes new Chapter 77, §77.7, concerning Request for Information from Covered Entities. The proposed new rule is necessary in order to harmonize the Board's rules with existing state and federal requirements concerning chiropractic records.  Red indicates newly added language.  Strikethrough indicates language to be deleted.

 §77.7.Request for Information and Records from Covered Entities.

(a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
 
(1) Covered entity--Any person as identified within Health and Safety Code, Title 2, Health, Subchapter I, Medical Records, Chapter 181 Medical Records Privacy, §181.001.
 
(2) Chiropractic record--Any record regularly utilized, created, or stored by a covered entity in the ordinary course and scope of business pertaining to the history, diagnosis, treatment or prognosis of the patient, including records of other health care practitioners contained in the records of the covered entity.
 
(3) Patient--Any person who consults or is seen by a covered entity for the purposes of receiving chiropractic care.
 
(b) Request for chiropractic records. Upon request, a covered entity shall furnish copies of chiropractic records, a summary, or narrative of the records pursuant to a written consent for disclosure. A request may be in oral form if it is documented in writing by the covered entity. The requested information or record shall not be released if the covered entity determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. If the covered entity determines that access to the information would be harmful, the covered entity will document in writing the reasons why the disclosure would be harmful. The covered entity may delete from the requested records confidential information about another person who has not authorized disclosure.
 
(c) Written consent.
 
(1) The written consent required by subsection (b) of this section shall be signed by:
 
(A) the patient;
 
(B) the patients' personal representative if the patient is deceased;
 
(C) a parent or legal guardian if the patient is a minor;
 
(D) a legal guardian if the patient has been adjudicated incompetent to manage his or her personal affairs; or
 
(E) an attorney ad litem for the patient as authorized by law, including the Health and Safety Code, Title 7, Family Code, Chapter 11 or the Probate Code, Chapter 5.
 
(2) The written consent shall contain the specific information or chiropractic records to be disclosed under the consent; the reasons or purposes for the disclosure; and the person to whom the information is to be disclosed.
 
(3) The patient, or other person authorized to consent, has the right to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal. Any person who received information made confidential by the Chiropractic Act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to disclose information was obtained.
 
(d) Oral consent.
 
(1) The oral consent permitted by subsection (b) of this section shall be documented by the covered entity by:
 
(A) identifying the patient by presentation of valid government identification; or
 
(B) the presentation of legal documents sufficient to identify a person as the patient's legal representative or guardian; and
 
(C) written documentation of the oral consent kept by the covered entity must include annotations recording the time, date, and identification of the patient, the patient's personal representative if the patient is deceased, a parent or legal guardian if the patient is a minor, a legal guardian if the patient has been adjudicated incompetent to manage his or her personal affairs; or an attorney ad litem for the patient as authorized by law, including the Health and Safety Code, Title 7, Family Code, Chapter 11 or the Probate Code, Chapter 5.
 
(2) The written documentation of the oral consent shall contain the specific information or chiropractic records to be disclosed under the oral consent; the reasons or purposes for the disclosure; and the person to whom the information is to be disclosed.
 
(3) The patient, or other person authorized to consent, has the right to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the oral notice of the withdrawal. Any person who received information made confidential by the Chiropractic Act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to disclose information was obtained.
 
(e) Reasonable time. A copy of chiropractic records or a summary or narrative of the records requested under subsection (b) of this section shall be furnished by the covered entity within a reasonable time, not to exceed 15 business days from the date of the request.
 
(f) Denial of request. If the covered entity denies the request under subsection (b) of this section for a copy of chiropractic records or a summary or narrative of the records, either in whole or in part, the covered entity shall furnish the patient a written statement, signed and dated, stating the reason for the denial. Chiropractic records requested pursuant to subsection (b) of this section may not be withheld based upon:
 
(1) a past due account for care or treatment previously rendered to the patient;
 
(2) on the lack of a letter of protection; or
 
(3) any other document having a similar effect.
 
(g) Fee for records. The covered entity may charge a reasonable fee for furnishing the information requested under subsection (a) of this section, in accordance with the following provisions:
 
(1) The fee shall be paid by the patient or someone else on the patient's behalf.
 
(2) A covered entity may require payment in advance except from another covered entity or other health care provider, including a chiropractor licensed by any other state, territory, or insular possession of the United States or any state or province of Canada, if requested for purposes of emergency or acute medical care.
 
(3) In the event payment is not received, within ten calendar days from notification of the charge, the covered entity shall notify the requesting party in writing of the need for payment.
 
(4) A reasonable fee for a paper copy shall be a charge not to exceed:
 
(A) $30 for retrieval of records and processing the request, including copies for the first 10 pages;
 
(B) $1.00 per page for pages 11-60;
 
(C) $.50 per page for pages 61-400; and
 
(D) $.25 per page for pages over 400.
 
(5) A reasonable fee for copies of films or other static diagnostic imaging studies shall be a charge not to exceed $45 for retrieval and processing, including copies for the first 10 pages, and $1.00 for each additional page over 10.
 
(6) Reasonable fees may also include actual costs for mailing, shipping, delivery, off-site recovery charges incurred by the covered entity and expedited recovery fees incurred by the covered entity.
 
(7) A reasonable fee for completing and signing an affidavit or questionnaire certifying that the information provided is a true and current copy of the records may not exceed $15.
 
(8) In addition to the fee contemplated in paragraph (7) of this subsection, reasonable fees may also include the actual costs paid by the covered entity to a notary for notarizing an affidavit, questionnaire, or other document.
 
(9) Notwithstanding subsection (g), a covered entity may not charge for records where prohibited as noted in Health and Safety Code, Title 2, Health, Subchapter H, Public Health Provisions, Chapter 161 Medical or Mental Health Records or any other applicable state and federal law.
 
(h) Subpoena not required. A subpoena shall not be required for the release of chiropractic records requested pursuant to subsection (b) of this section.
 

(i) Nothing within this section should be construed to supersede Health and Safety Code, Title 2, Health, Subchapter I, Medical Records, Chapter 181 Medical Records Privacy or any other applicable state and federal law.