23 LC 44 2380S
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The Senate Committee on Judiciary offered the following
substitute to HB 470:
A BILL TO BE ENTITLED
AN ACT
To amend Chapter 12 of Title 24 of the Official Code of Georgia Annotated, relating to1
medical and other confidential information, so as to allow for voluntary open2
communications related to healthcare under rules of evidence; to provide for definitions; to3
provide that certain open communications shall not be subject to future disclosure; to provide4
for a short title; to provide for related matters; to amend Chapter 33 of Title 31 of the Official5
Code of Georgia Annotated, relating to health records, so as to revise definitions; to revise6
provisions relating to the furnishing of copies of health records; to revise provisions relating7
to the costs of furnishing health records; to provide for related matters; to provide for an8
effective date; to repeal conflicting laws; and for other purposes.9
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA10
PART I11
SECTION 1-1.12
This part shall be known and may be cited as the "Georgia Candor Act."13 23 LC 44 2380S
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SECTION 1-2.14
Chapter 12 of Title 24 of the Official Code of Georgia Annotated, relating to medical and15
other confidential information, is amended by adding a new article to read as follows:16
"ARTICLE 517
24-12-40.18
As used in this article, the term:19
(1) 'Additional people' means attorneys, insurance representatives, family members,20
friends, or facilitators.21
(2) 'Adverse healthcare incident' means an objective and definable outcome arising from22
or related to patient care that results in the death or injury of a patient.23
(3) 'Health facility' means a facility, hospital, institution, or other healthcare related24
business entity with a permit or license issued by the Department of Community Health25
pursuant to Title 31.26
(4) 'Healthcare provider' means any person who is licensed, certified, registered, or27
otherwise permitted by the laws of this state to administer healthcare in the ordinary28
course of business or in the practice of a profession. Such term shall include a29
professional corporation, limited liability company, or limited liability partnership30
organized pursuant to the laws of this state for the practice of a healthcare profession.31
(5) 'Open discussion' means the process in which the healthcare provider, health facility,32
or the healthcare provider jointly with the health facility, communicate or facilitate33
communication with the patient regarding an adverse healthcare incident and related34
matters.35
(6) 'Open discussion communications' means:36
(A) All communications that are made in the course of an open discussion, including37
but not limited to: agreements, records, memoranda, work product, documents, offers38 23 LC 44 2380S
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of compensation, compensation, and other materials that are prepared for, or submitted39
in the course of, or in connection with open discussion.40
(B) Such term shall not include: communication, agreements, records, memoranda,41
work product, documents, offers of compensation, or compensation, that were not42
prepared specifically for use in an open discussion and are otherwise subject to43
discovery, or other such materials.44
(7) 'Open discussion invitation' means written notice of the desire of the healthcare45
provider, the health facility, or of the healthcare provider jointly with the health facility,46
to enter into an open discussion.47
(8) 'Patient' means a person who receives healthcare from a healthcare provider or health48
facility; the person's legal representative if the person is an unemancipated minor under49
the age of 18, incapacitated, or deceased; or the parties recognized as entitled to bring50
action for wrongful death under Chapter 4 of Title 51 if the patient is deceased.51
(9) 'Pro se notice' means the following written notice, in at least 16 point Arial font and52
placed at least two inches apart from any other text:53
'Right to Your Own Attorney54
The healthcare provider and health facility are not permitted to provide you55
any legal advice.56
You have the right to have an attorney of your choice represent and advise you57
regarding an offer of compensation. You are strongly encouraged to seek58
representation by an attorney to ensure your rights, interests, and legal59
obligations are protected.60
Please be informed that receipt of compensation without adequate and61
appropriate legal protections in place may make you ineligible or disqualify62
you from Medicaid or other means tested benefits, now or in the future.63 23 LC 44 2380S
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Please also be informed that you may be legally required to repay medical and64
other expenses that were paid by a third party, including private health65
insurance, Medicare, or Medicaid.66
A legal representative may be required to be appointed by a probate court in67
order to negotiate, approve, or accept, any compensation or resolution where68
the patient is deceased, is a minor child, or an incapacitated adult.'69
24-12-41.70
(a) If an adverse healthcare incident occurs, a healthcare provider, health facility, or71
healthcare provider jointly with a health facility, involved in the adverse healthcare72
incident, may provide the patient with an open discussion invitation.73
(b) A healthcare provider or health facility that chooses to provide an open discussion74
invitation shall send the open discussion invitation within 150 days after the date on which75
the healthcare provider or health facility knew, or through the use of diligence should have76
known, of the adverse healthcare incident.77
(c) An open discussion invitation shall include:78
(1) A reference to Code Section 31-33-2 and 45 C.F.R. 164.524 with an explanation of79
the patient's right to receive a complete and certified copy of his or her medical records80
within 30 days of request, and of his or her right to authorize the release of his or her81
medical records to any other person designated by the patient;82
(2) A reference to Code Sections 9-3-71, 9-3-72, and 9-3-73, as applicable, with notice83
that the time for a patient to bring a lawsuit is limited and will not be extended merely by84
engaging in an open discussion;85
(3) If a healthcare provider or health facility is a state, county, or municipal government86
entity, or an officer or employee of such state, county, or municipal government entity,87
a reference to Code Section 36-11-1, 36-33-5, or 50-21-26, as applicable, together with88 23 LC 44 2380S
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the statement that the deadline for filing the ante litem notice required under any such89
Code section is limited and cannot be extended; and90
(4) A separate written notice, in at least 16 point Arial font and placed at least two inches91
apart from any other text, stating the following:92
'Right to Your Own Attorney93
You have the right to have an attorney of your choice present throughout the94
open discussion process. You are strongly encouraged to seek representation95
by an attorney to ensure that your rights, interests, and legal obligations are96
protected throughout the open discussion process, including any resolution and97
any necessary court approval.98
Please know if you choose to engage in an open discussion, all99
communications made in the course of the open discussion, including the open100
discussion invitation, are:101
(A) Privileged and confidential;102
(B) Not subject to discovery, subpoena, or other means of legal compulsion103
for release; and104
(C) Not admissible as evidence in a proceeding arising out of the adverse105
healthcare incident, including a judicial, administrative, or arbitration106
proceeding.107
Communications not prepared specifically for use in the open discussion are108
admissible in any subsequent legal action, subject to the rules of evidence.'109
(d) An open discussion invitation to the patient that fails to comply with subsection (c) of110
this Code section shall:111 23 LC 44 2380S
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(1) Be admissible and shall not have the legal protections set forth in subsections (a)112
and (d) of Code Section 24-12-43; and113
(2) Make any resolution with the patient voidable by the patient.114
(e) If the patient agrees in writing to engage in an open discussion under this article:115
(1) The patient, healthcare provider, or health facility engaged in the open discussion116
may include additional people in the open discussion, provided the healthcare provider117
or health facility participating in the open discussion process shall have the duty to:118
(A) Advise all additional people in writing of the nature of communications made in119
accordance with this article as specified in Code Section 24-12-43; and120
(B) Have each execute a written acknowledgment of the advisement provided for in121
subsection (c) of this Code section;122
(2) The healthcare provider or health facility shall:123
(A) Investigate how the adverse healthcare incident occurred and gather information124
regarding the medical care or treatment provided and disclose the results of such125
investigation to the patient; and126
(B) In the event of an offer of compensation as provided in Code Section 24-12-42,127
disclose the results of such investigation to the patient prior to or at the same time as128
such offer of compensation;129
(3) If applicable, provide the patient the steps the healthcare provider or health facility130
will take to prevent future occurrences of the adverse healthcare incident; and131
(4) If applicable, where the patient is not represented by an attorney, the statute of132
limitations for a claim related to an adverse healthcare incident forming the basis of the133
open discussion and any applicable ante litem provision shall be tolled for any healthcare134
provider or health facility that participates in open discussion to the date of resolution of135
the open discussion or the date the patient retains an attorney regarding the adverse136
healthcare incident, whichever occurs first; provided, however, that such tolling shall137 23 LC 44 2380S
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only begin one year from the date the patient knew of the adverse healthcare incident, or,138
through the use of diligence, should have known of the adverse healthcare incident.139
24-12-42.140
(a) If a healthcare provider or health facility determines that an offer of compensation is141
warranted, the healthcare provider or health facility shall provide the patient with a written142
offer of compensation within 60 days of the date of the patient agreeing in writing to143
engage in an open discussion, unless the parties otherwise agree to an extension in writing.144
(b) When a healthcare provider or health facility desires to make an offer of compensation145
under subsection (a) of this Code section and the patient is not represented by an attorney,146
such healthcare provider or health facility shall provide such patient a pro se notice prior147
to making an offer of compensation, and failure to comply with this subsection shall:148
(1) Result in the offer of compensation being admissible and not having the legal149
protections set forth in subsections (a) and (d) of Code Section 24-12-43; and150
(2) Make any resolution with the patient voidable by the patient.151
(c) Except for an offer of compensation under subsection (a) of this Code section, open152
discussion communications between the healthcare provider or health facility and the153
patient about the compensation offered under subsection (a) of this Code section shall not154
be in writing.155
(d) Any compensation made by a healthcare provider or health facility to a patient under156
this article shall not be construed as compensation resulting from:157
(1) A written claim or demand for payment; or158
(2) A medical malpractice claim, judgment, arbitration award, or settlement.159
(e) As a condition of an offer of compensation under this Code section, a healthcare160
provider or health facility may require a patient to execute all documents and obtain any161
necessary court approval to resolve an adverse healthcare incident.162 23 LC 44 2380S
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24-12-43.163
(a) An open discussion invitation in compliance with subsection (c) of Code164
Section 24-12-41 and open discussion communications:165
(1) Shall not constitute an admission of liability;166
(2) Are privileged and confidential and shall not be disclosed;167
(3) Are not admissible as evidence in any subsequent judicial, administrative, or168
arbitration proceeding arising out of the adverse healthcare incident;169
(4) Are not subject to discovery, subpoena, or other means of legal compulsion for170
release; and171
(5) Shall not be disclosed by any party or person in any subsequent judicial,172
administrative, or arbitration proceeding arising out of the adverse healthcare incident.173
(b) The decision of a healthcare provider or health facility to not send an open discussion174
invitation or to not make an offer of compensation to a patient shall not be admissible in175
any subsequent judicial, administrative, or arbitration proceeding arising out of the adverse176
healthcare incident and shall not be grounds for the recovery of attorney's fees and177
expenses of litigation.178
(c) This Code section shall not be construed to:179
(1) Require the exclusion of any evidence otherwise discoverable merely because it is180
presented or learned of in the course of an open discussion; or181
(2) Create a valid objection to a discovery request of otherwise discoverable information182
under Code Section 9-11-26 merely because the subject matter of such discovery request183
was presented or learned of during open discussion.184
(d) The limitation on disclosure imposed by subsection (a) of this Code section includes185
such disclosure during any discovery conducted as part of a subsequent adjudicatory186
proceeding arising out of the adverse healthcare incident, and a court or other adjudicatory187
body shall not compel any party or person who engages in open discussion under this188 23 LC 44 2380S
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article to disclose the open discussion invitation or the open discussion communications189
made pursuant to this article.190
(e) This Code section shall not be construed to affect any other law, rule, or requirement191
with respect to confidentiality or privilege.192
24-12-44.193
(a) A healthcare provider or health facility that participates in open discussion under this194
article may provide de-identified information about an adverse healthcare incident to any195
patient safety centered nonprofit organization for use in patient safety research and196
education.197
(b) Disclosure of de-identified information under subsection (a) of this Code section:198
(1) Does not constitute a waiver of the privilege specified in Code Section 24-12-43; and199
(2) Is not a violation of the confidentiality requirements of Code Section 24-12-43.200
24-12-45.201
No person or entity, whether the patient, a healthcare provider, or a health facility, shall be202
compelled to participate in the open discussion. Participation is strictly voluntary, and no203
employer may exert pressure or coercion of any kind on an employee for participation.204
Any employee who is asked to participate shall also be given access, at the employer's205
expense, to an independent attorney for consultation. All participants have a right to have206
an attorney with them during the open discussion. Any participants may disengage at any207
time before a resolution."208 23 LC 44 2380S
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PART II209
SECTION 2-1.210
Chapter 33 of Title 31 of the Official Code of Georgia Annotated, relating to health records,211
is amended by revising the definitions in Code Section 31-33-1, as follows:212
"31-33-1.213
As used in this chapter, the term:214
(1) 'Patient' means any person who has received health care services from a provider.215
(2) 'Provider' means all hospitals, including public, private, osteopathic, and tuberculosis216
hospitals; other special care units, including podiatric facilities, skilled nursing facilities,217
and kidney disease treatment centers, including freestanding hemodialysis units;218
intermediate care facilities; ambulatory surgical or obstetrical facilities; health219
maintenance organizations; and home health agencies; diagnostic testing and imaging220
centers; and surgery centers. It shall also mean any person licensed to practice under221
Chapter 9, 11, 26, 34, 35, or 39 of Title 43, including any health care entity where such222
person rendered treatment, care, or testing.223
(3) 'Record' means a patient's health record, including, but not limited to, evaluations,224
diagnoses, prognoses, laboratory reports, biopsy slides, X-rays, prescriptions, and other225
such items or technical information used in assessing the patient's condition, or the226
pertinent portion of the record relating to a specific condition or a summary of the record,227
or medical bills for health care services provided to the patient by the provider."228
SECTION 2-2.229
Said chapter is further amended by revising subsections (a) and (b) of Code Section 31-33-2,230
relating to furnishing copy of health records, and adding a new subsection as follows:231 23 LC 44 2380S
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"(a)(1)(A) A provider having custody and control of any item evaluation, diagnosis,232
prognosis, laboratory report, or biopsy slide in a patient's record shall retain such item233
for a period of not less than ten years from the date such item was created.234
(B) The requirements of subparagraph (A) of this paragraph shall not apply to:235
(i) An individual provider who has retired from or sold his or her professional236
practice if such provider has notified the patient of such retirement or sale and offered237
to provide such items in the patient's record or copies thereof to another provider of238
the patient's choice and, if the patient so requests, to the patient; or239
(ii) A hospital which is an institution as defined in subparagraph (A) of paragraph (4)240
of Code Section 31-7-1, which shall retain patient records in accordance with rules241
and regulations for hospitals as issued pursuant to Code Section 31-7-2.242
(2) Upon written request from the patient or a person authorized to have access to the243
patient's record under an advance directive for health care, a psychiatric advance244
directive, or a durable power of attorney for health care for such patient, the provider245
having custody and control of the patient's record shall furnish a complete and current246
copy of that record, in accordance with the provisions of this Code section. If the patient247
is deceased, such request may be made by the following persons:248
(A) The executor, administrator, or temporary administrator for the decedent's estate249
if such person has been appointed;250
(B) If an executor, administrator, or temporary administrator for the decedent's estate251
has not been appointed, by the surviving spouse;252
(C) If there is no surviving spouse, by any surviving child; and253
(D) If there is no surviving child, by any parent.254
(b)(1) Any record requested under subsection (a) of this Code section shall within 30255
days of the receipt of a request for records be furnished to the patient, any other provider256
designated by the patient, any person authorized by paragraph (2) of subsection (a) of this257 23 LC 44 2380S
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Code section to request a patient's or deceased patient's medical records, or any other258
person designated by the patient;259
(2) Such record shall be furnished in electronic form, if so requested, to the extent the260
provider retains the record in electronic form, and provide the remainder, if any, within261
a reasonable time not to exceed ten days after the date the record in electronic form was262
due; and263
(3) Such record request shall be accompanied by:264
(1)(A) An authorization in compliance with the federal Health Insurance Portability265
and Accountability Act of 1996, 42 U.S.C. Section 1320d-2, et seq., and regulations266
implementing such act; and267
(2)(B) A signed written authorization as specified in subsection (d)(e) of this Code268
section.269
(c) Receipt of a request for records shall be deemed conclusive by any of the following:270
(1) A signed return receipt for certified mail correctly addressed;271
(2) Confirmation of email or facsimile transmission to the correct email address or272
telephone number, or273
(3) Proof of delivery via overnight delivery service.274
(c)(d) If the provider reasonably determines that disclosure of the record to the patient will275
be detrimental to the physical or mental health of the patient, the provider may refuse to276
furnish the record; however, upon such refusal, the patient's record shall, upon written277
request by the patient, be furnished to any other provider designated by the patient.278
(d)(e) A provider shall not be required to release records in accordance with this Code279
section unless and until the requesting person has furnished the provider with a signed280
written authorization indicating that he or she is an authorized person entitled authorized281
to have access to the patient's records by paragraph (2) of subsection (a) of pursuant to this282
Code section. Any provider shall be justified in relying upon such written authorization.283 23 LC 44 2380S
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(e)(f) Any provider or person who in good faith releases copies of medical records in284
accordance with this Code section shall not be found to have violated any criminal law or285
to be civilly liable to the patient, the deceased patient's estate, or to any other person."286
SECTION 2-3.287
Said chapter is further amended by revising Code Section 31-33-3, relating to the cost of288
copying and mailing health records, as follows:289
"31-33-3.290
(a)(1) Except as provided in subsection (d) of this Code section, the The party requesting291
the patient's records shall be responsible to the provider for the costs of copying and292
mailing producing the patient's record, and payment of such costs may be required by the293
provider prior to the records being furnished.294
(2)(A) A charge of up to $20.00 may be collected for search, retrieval, and other direct295
administrative costs related to compliance with the such request under this chapter. A296
fee for certifying the medical records may also be charged not to exceed $7.50 for each297
record certified. A fee for certifying all records produced pursuant to a request may298
also be charged not to exceed $7.50;299
(B) The actual cost of postage incurred in mailing the such requested records may also300
be charged. In addition, the;301
(C) The copying production costs for such a record which is in paper form shall not302
exceed:303
(i) $.75 per page for the first 20 pages of the patient's records which are copied304
produced;305
(ii) $.65 per page for pages 21 through 100; and306
(iii) $.50 for each page copied produced in excess of 100 pages; and307
(D) The provider shall, upon request, provide a cost estimate before producing such308
records.309 23 LC 44 2380S
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(E) Notwithstanding any other provision of this Code section to the contrary, for310
records requested to be furnished in electronic form, and to the extent the provider311
retains such records in electronic form, a provider may charge:312
(i) A fee not to exceed $20 for search, retrieval, or other direct administrative costs313
related to compliance with such request;314
(ii) A fee not to exceed $7.50 for certifying all records produced pursuant to a315
request; and316
(iii) A per-page fee as provided under subparagraph (C) of this paragraph.317
(F) Notwithstanding any other provisions of this Code section to the contrary, the fees318
allowed under this Code Section may not exceed the limits imposed by federal law.319
(b) All of the fees allowed by this Code section may be adjusted annually in accordance320
with the medical component of the consumer price index. The Department of Community321
Health shall be responsible for calculating this annual adjustment, which will become322
effective on July 1 of each year.323
(c) To the extent the request for medical records includes portions of records which are not324
in paper or electronic form, including but not limited to radiology films, models, or fetal325
monitoring strips, the provider shall:326
(1) Be be entitled to recover the full reasonable cost of such reproduction; and327
(2) Upon request, provide a cost estimate before producing such records.328
Payment of such costs may be required by the provider prior to the records being furnished.329
(d) Notwithstanding any provision to the contrary, no provider shall charge a fee for record330
requests made This subsection shall not apply to records requested in order to make or331
complete an application for a disability benefits program.332
(b)(e) The rights granted to a patient or other person under this chapter are in addition to333
any other rights such patient or person may have relating to access to a patient's records;334
however, nothing in this chapter shall be construed as granting to a patient or person any335 23 LC 44 2380S
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right of ownership in the records, as such records are owned by and are the property of the336
provider.337
(c)(f) This Code section shall apply to psychiatric, psychological, and other mental health338
records of a patient."339
PART III340
SECTION 3-1.341
This Act shall become effective on July 1, 2023.342
SECTION 3-2.343
All laws and parts of laws in conflict with this Act are repealed.344