Revision: July 29, 2024, 2:49 p.m.
CHAPTER 265
HB 1245 - FINAL VERSION
05/23/2024 2104s
2024 SESSION
24-2204
09/05
HOUSE BILL 1245
SPONSORS: Rep. P. Schmidt, Straf. 14
COMMITTEE: Judiciary
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AMENDED ANALYSIS
This bill provides that a person appointed a guardian shall retain the right to access and consent to the release of his or her confidential records unless the terms of the appointment provide otherwise. This bill further amends the amounts that can be charged for copies of medical records, and requires electronic production where available unless otherwise requested.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05/23/2024 2104s 24-2204
09/
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
Be it Enacted by the Senate and House of Representatives in General Court convened:
265:1 Guardians and Conservators; Findings; Release of Confidential Records. Amend RSA 464-A:9, IV to read as follows:
IV. No person determined to be incapacitated thus requiring the appointment of a guardian of the person and estate, or the person, or the estate, shall be deprived of any legal rights, including the right to marry, to obtain a motor vehicle operator's license, to testify in any judicial or administrative proceedings, to make a will, to convey or hold property, [or] to contract, or to have access to or to grant release of his or her confidential records and papers, including medical records, except upon specific findings of the court. The court shall enumerate in its findings which legal rights the proposed ward is incapable of exercising.
265:2 New Paragraph; Guardians and Conservators; Findings; Release of Confidential Records. Amend RSA 464-A:9 by inserting after paragraph IV the following new paragraph:
IV-a. Unless the court has specifically ordered that the ward be deprived access to or ability to grant release of his or her confidential records and papers, pursuant to paragraph IV, the guardian shall provide medical, financial, or other records to the ward within 10 days of the ward’s request. The guardian may file a petition with the court seeking to amend the existing guardianship order to deprive the ward the right to access or grant release of his or her confidential records. The guardian must file such petition within 10 days of receipt of the ward's request for copies of his or her records. Upon a finding in the record based on evidence beyond a reasonable doubt that the ward is incapable of exercising his or her right to access or grant release of his or her confidential records, the court shall issue an amended order of guardianship.
265:3 New Paragraph; Resignation, Removal, or Death of Guardian. Amend RSA 464-A:39 by inserting after paragraph III the following new paragraph:
III-a. Notwithstanding an order pursuant to RSA 464-A:9, IV depriving the ward of his or her rights to access or grant release of his or her confidential records, upon the ward’s filing a motion to remove the guardian, the ward may request authority to access and grant release of his or her confidential records. No sooner than 10 days following the filing of such request to access or grant release of records, the court shall issue an order granting the ward access to and the ability to release his or her confidential records, including financial and medical records. In the event the guardian or an interested party files an objection to the ward’s access or release of such records, the court shall schedule a hearing on the matter. Unless the guardian or interested party establishes, beyond a reasonable doubt, that authorizing the ward to access or grant release of his or her confidential records and papers, including medical records, would be harmful to the interests of the ward, the court shall issue an order granting the ward access to and the ability to release his or her confidential records, including financial and medical records.
265:4 Guardians and Conservators; Termination of Guardianship; Release of Records to Ward. Amend RSA 464-A:40, II to read as follows:
II.(a) The ward or any person interested in the ward's welfare may, at any time, file a motion for the termination of the guardianship based upon a finding that the ward is no longer incapacitated. Provided, however, an order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no motion concerning such adjudication may be filed without special leave.
(b) A ward may request the termination of the guardianship based on a finding that he or she is no longer incapacitated in an informal letter to the court or judge. Persons directly responsible for the care and supervision of the ward may assist the ward in preparing a letter of this kind. Any person who knowingly interferes with a transmission made by, or on behalf of, a ward to the court or judge may be adjudged guilty of contempt of court.
(c) Notwithstanding an order pursuant to RSA 464-A:9, IV depriving the ward of his or her rights to access or grant release of his or her confidential records, upon the ward’s filing a motion to terminate or modify the guardianship order, the ward may request authority to access and grant release of his or her confidential records. No sooner than 10 days following the filing of such request to access or grant release of records, the court shall issue an order granting the ward access to and the ability to release his or her confidential records, including financial and medical records. In the event the guardian or an interested party files an objection to the ward’s access or release of such records, the court shall schedule a hearing on the matter. Unless the guardian or interested party establishes, beyond a reasonable doubt, that authorizing the ward to access or grant release of his or her confidential records and papers, including medical records, would be harmful to the interests of the ward, the court shall issue an order granting the ward access to and the ability to release his or her confidential records, including financial and medical records.
(d) Unless the motion is without merit, the court shall hold a hearing similar to that provided for in RSA 464-A:8 and RSA 464-A:9 at which the guardian shall be required to prove that the grounds for appointment of a guardian provided in RSA 464-A:9 continue to exist.
265:5 Medical Records. RSA 332-I:1, I is repealed and reenacted to read as follows:
I. All medical information contained in the medical records in the possession of any health care provider, or in the possession of any third-party vendor with whom a health care provider contracts to store, handle, and issue copies of such medical records, shall be deemed to be the property of the patient. The patient or the patient's requestor shall be entitled to a copy of such records upon request, as regulated by the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”).
(a) For purposes of this section, a "requestor" means the patient’s personal representative, an individual authorized to access the patient’s medical record through a valid power of attorney, or the patient’s attorney.
(b) For any request made by a requestor, the cost for electronic copies of the patient’s medical records, and all related services, shall be charged at a reasonable rate not to exceed $50.00, and the cost for paper copies of the patient’s medical records, and all related services, shall not exceed $5 for the first page, $.41 per page for pages 2 through 50, and $.30 per page for pages 51 and higher. If, however, any redactions to the patient’s records are specifically requested by the requestor, such as for example, redactions of sensitive information pertaining to HIV status, drug and alcohol use, mental health, or genetic testing, the requestor may be charged a reasonable cost for the labor necessary to complete those redactions, not to exceed $25 per hour.
(c) If a patient’s medical records are stored and available in an electronic format, they shall be provided in that format to the requestor. Records which are stored and available in an electronic format shall not be printed and provided in paper format unless specifically requested in paper format by the requestor.
(d) All records being provided pursuant to requests by a requestor shall be provided to the requestor within 30 days of the receipt of the request, and any records not provided within 30 days shall be provided at no cost, absent an independent intervening force majeure which renders the requested records inaccessible, irretrievable, or undeliverable within this 30-day timeframe.
(e) If an incomplete copy of the requested medical records is provided, and additional requests are required to obtain a complete copy of the originally requested medical records, any records provided pursuant to those additional requests shall be provided at no cost.
I. Sections 1 through 4 of this act shall take effect January 1, 2025.
II. The remainder of this act shall take effect upon its passage.
Approved: July 26, 2024
Effective Date:
I. Sections 1-4 effective January 1, 2025
II. Remainder effective July 26, 2024