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  








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            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  








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            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  








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            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  








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            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.








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           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