BILL ANALYSIS AB 2028 Page 1 Date of Hearing: March 23, 2010 ASSEMBLY COMMITTEE ON HEALTH William W. Monning, Chair AB 2028 (Hernandez) - As Amended: March 10, 2010 SUBJECT : Confidentiality of medical information: disclosure. SUMMARY : Authorizes a health care provider or a health care service plan to disclose information relevant to the incident of child abuse or neglect to an investigator or a licensing agency that is investigating the known or suspected case of child abuse. Permits a health care provider to disclose information about a patient's participation in outpatient psychotherapy, relevant to the incident of child abuse or neglect, without requiring a written signed request from the entity requesting the information. EXISTING LAW : 1)Prohibits under the Confidentiality of Medical Information Act (CMIA) a health care provider, health care service plan, or health care contractor from disclosing a person's medical information without first obtaining that person's authorization, except as specified. 2)Requires under CMIA, a health care provider, health care service plan, or health care contractor (collectively "health plans") to disclose medical information if required by a subpoena, search warrant, or other court order. Permits a provider or health plan to disclose information in other specified circumstances, including for purposes of diagnosis or treatment or as necessary to provide billing or other administrative services to the provider or plan. Prohibits a provider or health plan from disclosing a person's medical information for marketing purposes, or any other purpose not necessary to provide health care services to the patient, without express authorization from that person. 3)Permits a psychotherapist to disclose medical information, if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the AB 2028 Page 2 target of the threat. 4)Prohibits a health care provider or health plan from releasing medical information to persons or entities authorized by law to receive that information if the requested information specifically relates to the patient's participation in outpatient treatment with a psychotherapist, unless the person or entity requesting that information submits to the patient and to the health care provider or health plan a written request, signed by the person requesting the information, that includes all of the following: a) The specific information relating to a patient's participation in outpatient treatment with a psychotherapist being requested and its specific intended use or uses; b) The length of time during which the information will be kept before being destroyed or disposed of; c) A statement that the information will not be used for any purpose other than its intended use; and, d) A statement that the person or entity requesting the information will destroy the information and all copies in the person's or entity's possession or control, will cause it to be destroyed, or will return the information and all copies of it before or immediately after the length of time specified has expired. 5)Requires the person or entity requesting the information to submit a copy of the required written request to the patient within 30 days of receipt of the information requested, unless the patient has signed a written waiver in the form of a letter signed and submitted by the patient to the health care provider or health care service plan waiving notification. 6)Exempts from the above requirements the disclosure or use of medical information by a law enforcement agency or a regulatory agency when required for an investigation of unlawful activity or for licensing, certification, or regulatory purposes, unless the disclosure is otherwise prohibited by law. 7)Exempts from the above requirements the disclosure of AB 2028 Page 3 information when the patient's psychotherapist believes, in good faith, that the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim, without requiring a written signed request from the entity requesting the information. FISCAL EFFECT : This bill has not been analyzed by a fiscal committee. COMMENTS : 1)PURPOSE OF THIS BILL . According to the sponsor, the California Association of Marriage and Family Therapists (CAMFT), this bill clarifies in CMIA that psychotherapists and other health care providers who report suspected child abuse or neglect are allowed to provide information related to the incident of child abuse or neglect to those who are investigating the report. CAMFT believes that this exception deserves specific mention to make it abundantly clear that a mandated reporter of child abuse is permitted, without prior authorization of the patient, to cooperate with the investigator of the reported, suspected, or known child abuse. Additionally, this bill clarifies that the written notification requirements of CMIA (described in existing law in paragraphs 4) and 5) above) do not apply to disclosures made by mandated reporters to child abuse investigators, which will allow investigators to obtain information in a timelier manner. The sponsor states that this bill is similar to AB 681 (Hernandez) Chapter 464, Statutes of 2009, which provides a similar exception when the patient's psychotherapist believes, in good faith, that the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim. 2)CMIA . CMIA regulates under state law whether and when medical information can be disclosed. CMIA prohibits, with certain exceptions, a health care provider or health plan from disclosing medical information regarding a patient of the health care provider or an enrollee of the health plan without first obtaining an authorization from the patient, his or her legal representative, or other specified persons. There are exceptions from this prohibition that either require or permit a health care provider or health plan to disclose medical AB 2028 Page 4 information under specified circumstances. For example, health care providers and health plans are required to disclose medical information if the disclosure is compelled by a court order, through a subpoena, by a search warrant issued to a law enforcement agency, or by a patient seeking access to their own medical records. CMIA permits health care providers and health plans to disclose medical information under specified circumstances, such as for purposes of diagnosis and treatment of the patient, to allow responsibility for payment to be determined and payment to be made, for billing, claims management, and medical data processing. AB 1178 (Hernandez), Chapter 506, Statutes of 2007, amended CMIA to permit a psychotherapist to disclose medical information when he or she believes the disclosure of medical information is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat. This bill will create a similar exception by permitting a health plan to disclose information relevant to the incident of child abuse or neglect to an investigator or a licensing agency that is investigating the known or suspected case of child abuse. In an effort to provide greater protection to mental health information, the Legislature passed AB 416 (Machado), Chapter 527 of Statutes of 1999, which requires individuals requesting outpatient mental health records to demonstrate the need for the request, and to commit to handling such records with care. AB 416 prohibits health plans from releasing medical information to persons or entities authorized by law to receive that information if the requested information specifically relates to the patient's participation in outpatient treatment with a psychotherapist, unless the person or entity requesting that information submits to the patient and to the health plan a written request, signed by the person requesting the information that includes specified information, such as the intended use of the information, and the length of time the information will be kept before being destroyed. Last year, the Legislature passed AB 681 (Hernandez) which creates an exception to the AB 416 requirements when the patient's psychotherapist believes, in good faith, that the AB 2028 Page 5 disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim. AB 2028 would create a similar exception for information relevant to the incident of child abuse or neglect that can be provided to an investigator or a licensing agency that is investigating the case. 3)INVESTIGATING CHILD ABUSE AND NEGLECT . In California, each county is responsible for administering its own child welfare program, which is monitored and supported by the California Department of Social Services. California is one of 11 states that operate using a state-administered/county-implemented model of governance. State law requires each county child welfare services division that deals with abused and neglected children to manage an Emergency Response (ER) Hotline for reporting suspected abuse, and investigates reports of child abuse. When a mandated reporter or concerned individual calls the ER Hotline, it is first screened by an ER Hotline social worker to determine if there is enough information to warrant an in-person investigation from an ER social worker. After assessing the risk to the child, the ER Hotline worker must decide if the referral should be closed or if an ER social worker should conduct an in-person investigation immediately or within 10 days. If the Hotline worker determines that an in-person investigation is necessary, an ER social worker interviews the parent or caretaker and the child individually or as part of a multidisciplinary team, which may include law enforcement or public health officials. 4)MANDATED REPORTERS . The California Child Abuse Reporting Law identifies 38 categories of individuals who are legally required to report known or suspected child abuse. In addition to health care providers such as physicians and nurses, mandated reporters include psychotherapists, workers in county welfare, police, and probation departments, clinical social workers, clergy, school teachers and counselors, and employees of day care facilities. California law defines specific categories of child abuse and neglect to guide mandated reporters about what to report, which are as follows: physical abuse; sexual abuse; general neglect; severe neglect; and, emotional abuse. 5)DOUBLE REFERRAL . This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Committee on Judiciary. AB 2028 Page 6 REGISTERED SUPPORT / OPPOSITION : Support California Association of Marriage and Family Therapists (sponsor) California Probation Parole and Correctional Association California State Sheriffs' Association Opposition None on file. Analysis Prepared by : Martin Radosevich / HEALTH / (916) 319-2097