Way back in 2002, when I lived and worked in Washington, State, I heard about what I’d call a “quirky” little law known as California Health and Safety Code Section 123148, that did exactly as the title of this post reads.
It made it illegal for a physician to deliver certain test results to their patients online, secured, or not (“by Internet posting or any other means”). The tests included are pap smears, hepatitis tests, HIV tests, tests of drug abuse, all biopsies including skin biopsies or “routinely processed tissues” if they reveal a malignancy.
The law turned out to be more than little in that it prevented many patients from accessing their health data online, even when both the patient and the physician wanted it. Actually, it still prevents this access to this day, 10 years later.
Luckily for the patients in Washington State, such a law was never passed, and they reaped the benefits of involvement in their health care.
At the time, I heard varying reasons why this law was passed. One story is that it was the large clinical labs in the state that wanted these restrictions. Another version, that makes more sense, is that the State’s large medical societies wanted these restrictions.
I never wanted these restrictions as a physician, so if this story is correct, then I am being non-compliant (again) with my profession in advocating for this change.
10 years later, it’s clear that patients don’t want these restrictions either, and physicians engaging in patient centered, technologically-enabled care, could do without them as well.
California Assembly Bill AB-2253 has been introduced in the 2011-12 legislative session, is in play right now, and seeks to amend Section 123148 to make it less restrictive.
AB -2253 doesn’t go far enough, though, because the restrictions it leaves in place would still allow results to fall through the cracks and increase patient harm (See: Why Patients Should Have Access to Their Lab Results).
Take a look closely and see if section b(1) and section f need to exist anymore, or in what form they should continue to exist. Specifically, a patient friendly version of this statute should not require a physician to review results before they are seen by the patient (however physicians should be required to review the test and set forth a plan of action).
The best medical practice is to require a physician to talk about the results of a test when the test is ordered. This allows the patient to ask the right questions – “Why do I need this test? Have I gotten this test before? What are you looking for? How is this going to help my health/health care?” These are all the things that go through a doctor’s mind when they choose a test. If these things are not going through a doctor’s mind, then something is very wrong.
Before you say, “but Ted, new HIPAA and CLIA regs will solve this problem,” I direct you to section (d), second sentence:
However, any state statute, if enacted, that governs privacy and security of electronic personal health records, shall apply to test results under this section and shall prevail over federal law if federal law permits.
I’m not a lawyer and I’m not a legislator, so I invite further scrutiny, commentary, and the advice that AB 2253 is an opportunity, after 10 years, for California physicians to be there for their patients. What are your ideas, how can we make this happen?