Both the HIPAA Privacy Rule and California law give you rights to your medical record. The HIPAA Privacy Rule sets standards that apply to records held by health care providers across the nation. California law sets standards for records held by doctors, hospitals and other health care providers within the state. Most health care providers must follow both the HIPAA Privacy Rule and California law. If a standard is different under the HIPAA Privacy Rule than it is under California law, your health care provider must follow the law that is the most protective of your rights.
Summary of Your Rights
In California, you have the right to:
- See and get a copy of your medical record.
Your health care provider usually must let you see your medical record within five (5) business days after they receive your written request. If you request a copy of your record, your provider must give you the copy within 15 days after they receive your request.
Your provider can charge you 25¢ cents a page for photocopies and 50¢ a page for copies from microfilm. If you request that the copy be mailed to you, you can also be charged for postage.
- Amend your medical record by adding information to it.
You have the right to amend your medical record by adding information to your record to make it more complete or accurate. This right is called the right to amend your record.
- File a complaint.
You have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if you believe your health care provider has violated your right to see, get a copy of, or amend your medical record. You can also file a complaint with the state agency that regulates your health care provider.
- Sue in state court to get your medical record.
You have the right under California law to sue in a California Superior Court to obtain your medical record.
You can learn more about these rights in the following sections of this guide.
Who Has to Follow These Laws?
Most California doctors, dentists, optometrists, hospitals and other health care providers must follow both the HIPAA Privacy Rule and state laws that give patients rights in their medical records.
There are some health care providers, however, that do not have to follow the HIPAA Privacy Rule. The HIPAA Privacy Rule only covers health care providers that use computers to send health information for certain administrative or financial purposes (such as filing claims for insurance).
Sometimes Ashley goes to a doctor at a free clinic for medical treatment. The doctor does not accept private insurance, Medicaid, or Medicare. The doctor does not file any insurance claims. Ashley’s doctor probably does not have to follow the HIPAA Privacy Rule. This is because the doctor does not appear to send health information for the types of administrative or financial purposes that would make her a covered health care provider under the HIPAA Privacy Rule.
If you have questions about whether your health care provider must follow the HIPAA Privacy Rule, you can contact some of the resources listed in Section 4 of this guide.
Are nursing homes covered by HIPAA?
Yes. Most nursing homes are covered by the HIPAA Privacy Rule. They also have to follow other specific rules that cover nursing homes and long term care facilities. Because the rules for nursing homes are different than they are for other health care providers, they are not covered by this guide.
What if my provider does not have to follow HIPAA?
Even if your provider does not have to follow the HIPAA Privacy Rule, they still have to follow California laws that give you rights to your medical record. Section 6 lists some resources that summarize these state laws.
This guide, however, explains getting your medical record from California providers who have to follow both the HIPAA Privacy Rule and state law.
What Records Do I Have the Right to Get and Amend?
You have the right to see and get a copy of your medical record. You also have the right to amend your medical record by having information added to it to make it more complete or accurate. This right is called the right to amend your record. (This guide will call these rights the right to “get and amend.")
Your medical record includes such things as:
- Information that identifies you, such as your name and Social Security number.
- Information that you tell your doctor, such as:
- Your medical history.
- How you feel at the time of your visit.
- Your family health history.
- The results of your examination.
- Test results.
- Treatment received in a hospital.
- X-rays, records made by heart monitors, and similar items.
- Medicine prescribed.
- Other information about things that can affect your health or health care.
Who owns my medical record?
Under California law, your health care provider owns the actual medical record. For example, if your provider maintains paper medical records, they own and have the right to keep the original record. You only have the right to see and get a copy of it.
My provider makes personal notes about patients. Do I have a right to get these notes?
Probably. You have the right to get a provider’s personal notes about you if the notes are used to make decisions about you.
Example
Michael’s doctor writes notes about her personal impressions of patients in their medical records. She uses these notes to help her treat her patients. For example, she wrote a note in Michael’s medical record saying she suspects that he is exaggerating his complaints about his health and that his problems are “all in his head.” If Michael requests his entire medical record, the doctor must let him get a copy of this note.
What happens if my medical record has information in it that came from a different health care provider?
Generally, if your provider has the medical information that you request, they must give it to you. It does not matter who originally put the information in the record.
Your right to amend or correct this information may be limited, though. For more information about how to amend information in your record you can read Section 3 of this guide.
My health care provider collected information about me because they think I might sue them. Do I have the right to get this information?
Not under these particular laws. You do not have the right under the HIPAA Privacy Rule to get information about you that has been gathered for potential use in a law suit or similar proceeding. There are special rules for getting information in law suits.
Roberto complained to his hospital that he was very unhappy with his treatment. Believing that Roberto is going to sue, the hospital lawyer interviews doctors and nurses involved with Roberto’s case to get their version of what happened. Roberto requests a copy of all medical information that the hospital has about his treatment. The hospital must give Roberto a copy of his medical record, including test results and entries made while Roberto was in the hospital. However, the hospital does not have to give Roberto a copy of the interview notes they took for potential use in the law suit.
Do I have the right to get and amend records about my mental health treatment?
Maybe. The rules for when you can get and amend your records about mental health treatment can be different. For example, psychotherapy notes are treated differently than other records under the HIPAA Privacy Rule. Because the rules for mental health records can be different they are not discussed in this guide. You can find some resources that explain your rights in these types of records in Section 6.
Who Has the Right to Get and Amend My Medical Record?
You have the right to see and get a copy of medical records that are about you. You also have the right to amend medical records that are about you by having information added to them. (This guide calls these rights the right to “get and amend” your medical record.) If there is someone who acts as your personal representative, they usually have the right to get and amend your record on your behalf. Generally, a personal representative is a person who has the right to make health care decisions on your behalf.
Do I have the right to get and amend my minor child’s medical records?
Generally, yes. As a parent or guardian, you are generally considered to be the personal representative of your minor child. As a personal representative, you usually have the right to get and amend your child’s medical record. In California, you have these rights when your child is younger than 18 years old.
As a parent, do I always have the right to get and amend my child’s medical record?
No. A parent does not always have the right to get and amend a minor child’s medical record. For example, a parent does not have the right to get and amend a minor child’s medical record if the provider determines that giving the parent access to the child’s record would be physically or mentally harmful to the child. A provider can also deny a parent’s access to a minor child’s record when the provider determines that giving the parent access would harm the provider’s professional relationship with the minor.
Some other situations where parents do not have the right to get and amend their child’s medical records are discussed in the following questions and answers.
Who has the right to get and amend my child’s medical record once she turns 18?
Once your child turns 18, your child has the right to get and amend her own medical record. This right includes getting access to records that were created when she was younger. You usually no longer have the right to get and amend your adult child’s record just because you are her parent.
I am under 18, but I’m considered emancipated under California law. Who has the right to get and amend my medical record?
You do. In California, you are an emancipated minor if:
- You are married (or have been married);
- You are on active duty with the armed forces; or
- You have been declared emancipated by court order.
If you are an emancipated minor, you have the right to get and amend your own medical record. Your parents do not have the right to get and amend your record.
I am a minor. I am not emancipated but can legally consent to certain kinds of medical treatment without my parents’ permission. Who has the right to get and amend my records that are related to this treatment?
You do. In California, minors can obtain certain types of medical treatment without the permission of their parents. When you obtain such treatment, you have the right to get and amend your own medical record related to this treatment. Your parents generally do not have the right to get and amend medical records related to treatment to which you can legally consent.
For example, as a minor in California you can consent to medical care related to the prevention or treatment of pregnancy without the permission of your parents. Similarly, if you are a minor 12 or older you may consent to testing and treatment for sexually transmitted disease without your parents’ permission. In both of these cases, you have the right to get and amend the medical records related to the testing or treatment. Your parents do not have the right to get and amend these records.
Janet is 16. She believes she might have chlamydia, a sexually transmitted disease. Janet does not need her parents’ permission to get tested and treated. She goes to a clinic and is tested. Later, Janet’s mother requests a copy of her medical record. Janet’s doctor cannot give Janet’s mother the part of the medical record about this test without Janet’s permission.
If you have questions or concerns about whether your parents will have access to your medical information, you should talk to your health care provider.
I have a health care power of attorney for my mother. Do I have the right to get and amend her medical records?
Yes. If you have your mother’s health care power of attorney, you generally have the right to see, get a copy of, and amend her medical record. You have these rights during the time when the health care power of attorney is in effect.
Maria’s mother signed a health care power of attorney form that gives Maria the power to make health care decisions if her mother is unable to make such decisions. Maria’s mother was in a bad accident. Maria’s mother is not able to make decisions about her health care. Maria now has the right to make health care decisions on her mother’s behalf. She also has the right to get and amend medical records that are relevant to making these decisions. For example, Maria has the right to see the records about her mother’s current medical condition and treatment.
Maria is curious about the time her mother had a miscarriage. Maria wants to look at these old medical records. Maria does not have the right to get and amend these medical records because the records have nothing to do with her mother’s current condition or treatment.
My father recently died. Do I have the right to get his medical record?
Maybe. You do not automatically have the right to get a deceased person’s medical records, even if you are a close relative. In California, you have the right to see and get a copy of a deceased person’s medical records if you are:
- The deceased person’s beneficiary or
- Their personal representative such as the administrator of the estate or the executor of their will.
How Long Does My Provider Have to Keep My Medical Record?
California law may require your health care provider to keep your medical record for a certain period of time. For example, hospitals in California generally must maintain medical records for at least seven (7) years after the date the patient was discharged. Records for unemancipated minors must be kept at least seven (7) years or a minimum of one year after the minor has reached 18, whichever is later. There is no general rule for how long doctors in California must keep medical records.
You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.
