BILL ANALYSIS AB 2028 Page 1 Date of Hearing: April 6, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 2028 (Hernandez) - As Amended: March 10, 2010 As Proposed To Be Amended SUBJECT : disclosure of Medical Information: MAndated Reporters KEY ISSUES : 1)Should existing law be amended to clarify that mandated reporters of child, elder, and dependent adult abuse be permitted to thereafter disclose requested information to An agency investigating the abuse? 2)Should agencies investigating reports of child, elder, or dependent abuse be exempted from existing request and notice requriements, given that such notices might compromise an investigation and breach the reporter's statutorily required confidentiality? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS Under California's Confidential Medical Information Act (CMIA) a therapist, like any other medical provider, is barred from disclosing a patient's medical information unless some mandatory or permissive exception to the prohibition applies. In addition, if the medical information pertains to outpatient psychotherapy, the entity requesting the information from the therapist must make a written request that contains specified information and send a copy of the written request to the patient within 30 days of receiving the information. This bill, as currently in print, would clarify that mandated reporters of child abuse and neglect may also subsequently disclose requested information to the agency investigating the report. Although provisions in the state's existing child abuse reporting act already authorize mandated reporters (including therapists) to disclose information to an agency investigating the report, the sponsor believes that this bill will clarify the relationship between the relevant provisions of the CMIA and the reporting act. In addition, this bill would exempt an entity AB 2028 Page 2 investigating the reported abuse from existing request and notice requirements. The author and sponsor believe that requiring a written request and notice are not appropriate in child abuse and neglect cases, since the requesting entities may not always have the specific information required for the written request and the notice requirement would endanger the child and impede the investigation by potentially notifying the alleged abuser. For reasons discussed in the analysis, the author and sponsor have agreed to extend the provisions of this bill to mandated reporters of elder and dependent adult abuse (who are similarly authorized by existing law to disclose information to requesting entities) and make corresponding technical amendments. The bill summary below reflects these proposed amendments. SUMMARY : Clarifies the authority of mandated reporters of certain kinds of abuse to disclose information to the agencies investigating that abuse and relieves the investigating agency of certain request and notice requirements, as specified. Specifically, this bill: 1)Permits mandated reporters of child abuse or neglect or elder and dependent adult abuse to disclose information to an agency investigating the report of abuse, notwithstanding the general prohibition against disclosing a patient's medical information without the patient's consent. 2)Exempts an agency investigating reports of child, elder, or dependent adult abuse or neglect from an existing law that requires an entity requesting medical information related to outpatient psychotherapy to submit a written request that contains specified information and to send a copy of the written request to the patient within 30 days of receipt of the requested information. EXISTING LAW : 1)Prohibits a health care provider, service plan, or contractor from disclosing medical information about a patient, enrollee, or subscriber without first obtaining authorization from the patient, subject to certain mandatory and permissive exceptions. (Civil Code Section 56.10(a).) 2)Provides, notwithstanding the above prohibition, that a health care provider, service plan, or contractor shall disclose AB 2028 Page 3 medical information if the disclosure is compelled by law, including any of the following: a) A court order, subpoena, or search warrant; b) The order of a board, commission, arbitration panel, or administrative agency for purposes of adjudication pursuant to its lawful authority; c) Request of the patient or the patient's representative, as specified. d) Request of a coroner under specified circumstances. (Civil Code section 56.10(b).) 3)Provides that a health care provider, service plan, or contractor may disclose medical information in a limited manner for specified reasons, including, but not limited to, for purposes of diagnosis and treatment, as necessary for billing and payment, and as otherwise specifically authorized by law. (Civil Code section 56.10(c).) 4)Prohibits a health care provider, health care service plan, or contractor from releasing a patient's medical information to authorized persons or entities who request such information if the requested information specifically relates to outpatient psychotherapy treatment, unless the requesting party submits to the provider a written request, with specified content and assurances, and then submits a copy of the written request to the patient within 30 days after receipt of the requested information. (Civil Code Section 56.104 (a)-(b).) 5)Specifies that the above written request and notice requirements do not apply to the disclosure of information by a law enforcement agency or regulatory agency when required for an investigation of unlawful activity or for licensing, certification, or regulatory purposes. (Civil Code Section 56.104 (d).) 6)Designates persons engaged in certain professions as "mandated reporters" who must report any reasonable suspicion of child abuse or neglect to the appropriate agencies. Mandated reporters include, among others, teachers, child care workers, physicians and other medical professionals, therapists, and other professions that may entail frequent and regular contact with children and parents. (Penal Code Section 11164 et seq.) AB 2028 Page 4 7)Authorizes mandated reporters of child abuse and neglect to disclose relevant information to agencies that are investigating the reported incident of child abuse or neglect. Specifies that the identity of the persons reporting the child abuse or neglect shall be confidential and shared only to the agencies receiving or investigating the reports. (Penal Code Section 11167 (b)-(d).) 8)Authorizes a mandated reporter of elder and dependent adult to abuse to disclose relevant information to agencies that are investigating reported incidents of abuse. Specifies that the identity of the person reporting the abuse shall be confidential and shared only to the agencies involved in investigating the abuse, as specified. (Welfare & Institutions Code Section 15633.5 (a)-(c).) COMMENTS : As currently in print this bill, which is sponsored by the California Association of Marriage and Family Therapists (CAMFT), would clarify that therapists who have reported child abuse and neglect, as required by law, may also disclose information to the agency that is investigating the report of child abuse or neglect. In addition, under the bill in print, an entity that seeks information from a therapist while investigating a report of child abuse or neglect is exempted from existing requirements that it notify the patient within 30 days after receipt of the requested information. For reasons discussed below, the author has agreed to take amendments in this Committee that will extend these provisions to mandated reporters of elder and dependent adult abuse as well. The provisions authorizing disclosure are declaratory of existing law; the provisions that exempt investigating agencies from the written request and notification provisions represent a substantive change to existing law. Background : The California Confidential Medical Information Act (CMIA) generally prohibits a health care provider or health care plan from disclosing a patient's medical information without the prior written consent of the patient. However, the CMIA has been amended several times to create both mandatory and permissive disclosures as exceptions to the general rule of non-disclosure. Mandatory disclosures generally require the provider or plan to disclose information if the information is demanded by a subpoena, search warrant, or other court order. (Civil Code Section 56.10 (b).) There are also a number of permissive disclosures that authorize but do not require the AB 2028 Page 5 provider or plan to disclose the information at the request of some person or entity that is legally authorized to make such a request. (Id. Section 56.10 (c) (1)-(21).) For example, a provider or plan may disclose information without the patient's prior written consent if the information is needed for purposes of diagnosis or treatment or is necessary for standard billing and payment purposes. A provider or plan may also disclose certain information in response to other limited requests, including requests for purposes of medical review or licensing, medical research, or responding to public health crises or other emergencies. Finally, existing law permits a fairly broad permissive disclosure where disclosure is "otherwise specifically authorized by law." (Id. Section 56.10 (c) (14).) Release of Information Concerning Outpatient Psychotherapy . Although the CMIA provisions discussed above apply to all medical information - including information relating to mental health or psychiatric treatment - the CMIA nonetheless creates an additional requirement for the release of medical information relating to outpatient treatment with a psychotherapist. Because of the potentially more sensitive nature of this information, existing law permits disclosure of information relating to outpatient psychotherapy treatment only if the entity requesting the information submits to the health care provider or therapist a written request that specifically describes how the information will be used and gives assurances that the information will not be used for any other purposes and will be destroyed once it has been used for the stated purpose. In addition, the requesting entity must send a copy of this written request to the patient within 30 days of receipt of the requested information. (Id. Section 56.104.) Last year's AB 681 (Chapter 464, Stats. of 2009) amended this same provision to specify that these request and notice provisions do not apply if the information is requested by a law enforcement agency investigating a disclosure that was made to prevent a serious and imminent threat to the health or safety of a reasonably identifiable victim or victims. (Id. Section 56.104 (e).) The rationale for this exception to the written request requirement reflected a concern that information might be needed immediately in order to prevent an imminent threat; and the exception to the notification requirement reflected a concern that in cases where the patient was the source of the threat, the notification might impede an investigation or further endanger the potential victim or victims. AB 2028 Page 6 Disclosure and Notice Requirements Relating to Reports of Child Abuse and Neglect . This bill, as currently in print, would make two changes to the existing CMIA statute. First, this measure would clarify that a therapist or medical provider that reports child abuse or neglect, as required by law, will be authorized (but not required) to thereafter disclose information to the agency that is investigating the report. Arguably, therapist and other "mandated reporters" of child abuse already have this authority under existing law. Under the Child Abuse and Neglect Reporting Act, therapists - like other mandated reporters - are required by law to report any reasonable suspicion of child abuse or neglect to the proper authorities. Moreover, once the report is made, the existing provisions of the reporting act also authorize them to disclose information to an agency investigating those initial reports of child abuse or neglect. Because the CMIA already permits disclosure of medical information if the disclosure "is otherwise specifically authorized by law," it appears that therapists may already possess the authority to disclose this information without violating the CMIA. However, the sponsor contends that many therapists assume CMIA still restricts their ability to disclose medical information, and therefore the sponsor seeks express authorization within CMIA, rather than relying upon the general provision that permits disclosure where it is otherwise authorized by law. This bill will make it clear that CMIA does not trump the authority granted in the reporting act. Second, because therapists typically provide outpatient psychotherapy services, as this term is defined by law, this bill would also provide that the investigating agency requesting the information on the reported abuse would not be required to submit a prior written request to the provider or notify the patient 30 days after receipt of the requested information. The rationale for this exception is similar to the exception created by last year's AB 681 (Chapter 464, Stats. of 2009), relating to serious and imminent threats of harm to a third party. Because child abuse and neglect are ongoing, the threat to the child is always "imminent." In addition, the "patient" that must be notified in the case of child abuse or neglect would either be the child or the person allegedly committing the abuse or neglect. If the patient is the child, then as a practical matter the notice would go to the parent or guardian, who potentially may be the one committing the abuse of neglect. The AB 2028 Page 7 author and sponsor contend that notifying the person allegedly or potentially committing the abuse or neglect could impede the investigation and quite possibly put the child at greater risk. This provision of the bill is fully consistent with similar provisions in existing law. As noted, last year's AB 681 eliminated the written request and notice provisions relating to threats of serious or imminent harm. In addition, existing law already provides that the request and notice provisions do not apply in situations in which a law enforcement agency or regulatory agency is investigating unlawful activity. (Civil Code Section 56.104 (d).) Although Child Protective Services or related social services agencies investigating reports of child abuse and neglect do not typically qualify as either "law enforcement" or "regulatory" agencies within the meaning of these provisions, they are nonetheless investigating unlawful activity and arguably warrant the same exception for substantially the same reasons. Indeed, given that the victims of the unlawful activity are children, the rationale for exempting these investigating agencies from the request and notice provisions may potentially be even stronger. Confidentiality of Mandated Reporters. An additional reason for not requiring the requesting entity to send a copy of the written request to the patient follows from the existing provisions in the reporting act that require an investigating agency to keep the identity of the mandated reporter confidential to all but the investigating and enforcement agencies. (Penal Code Section 11167 (c).) Because the written request to the provider must contain specific information relating to the patient's participation in outpatient treatment, providing a copy of the request to the patient would effectively breach this statutorily required confidentiality. ARGUMENTS IN SUPPORT : According to the sponsors, the California Association of Marriage and Family Therapists (CAMFT), this bill will clarify that a psychotherapist or other health care provider who reports suspected child abuse and neglect will be permitted to disclose relevant information to the agencies that investigates those reports of abuse and neglect. Although therapists may arguably already have this authority, the sponsors believe that it is necessary to make it clear that therapists not only have an obligation to report suspicions of child abuse and neglect, but also the authorization to cooperate with investigators without fear of violating the CMIA. In addition, CAMFT believes that eliminating the request and notice AB 2028 Page 8 requirements will permit investigators to obtain information more quickly and prevent the potentially adverse consequences of potentially notifying the very person who may be the subject of the investigation. Eliminating the notice requirement will help to maintain the statutorily required confidentiality of reporters. Finally, CAMFT argues that the provision requiring the written request and notification was enacted to protect the privacy of psychotherapy patients from requests made by health plans, insurers, or other providers who generally should only be able to obtain this information for purposes of diagnosis, treatment, or payment and billing. This bill would not change the requirement for those purposes; it would only apply to information disclosed by therapist to an agency investigating a report of abuse. ARGUMENTS IN SUPPORT IF AMENDED : Disability Rights California (DRC) supports this bill if amended. First, DRC points out - as noted in the analysis above - that the reporting act in the Penal Code already appears to authorize disclosure by mandated reporters. DRC seeks an amendment that would similarly extend the amendments proposed by this bill to persons reporting or agencies investigating elder and dependent adult abuse. Just as existing Penal Code Section 11167 already authorizes disclosures by mandated child abuse reporters, so too does Welfare and Institutions Code Section 15630 require persons who work with elders and dependent adults to report abuse. If clarification is needed that CMIA does not prohibit disclosures by mandated child abuse reporters, DRC reasons, then clarification is also needed for mandated reporters of elder and dependent adult abuse. In addition, DRC objects to the amendment relating to the request and notification requirements. Although it is not entirely clear from its letter, it appears that DRC would support eliminating the requirement that the requesting entity notify the patient (since notification could potentially increase the risk to the victim) but it does not support eliminating the requirement that the requesting entity provide the provider with a written request with the specified information. Sponsor's Response to DRC : The sponsor agrees that the clarifying provisions should apply to both child abuse and neglect reporters and to elder and dependent adult abuse reporters. As to DRC's position on the request and notification issue, the sponsor points out the bill that created the request and notice requirement was sponsored by clinical social workers AB 2028 Page 9 and therapists in order to prevent the use of a psychotherapy patient's medical information by third parties, especially health plans and insurers. This is why the bill requires not only post-request notification to the patient that the information has been requested, but also requires the requester to provide specific explanations of how the information will be used and how long it will be maintained. But the sponsor contends that an agency requesting the information for purposes of investigating reports of abuse will not always have the answers to those questions. Moreover, while the original bill reflected a desire to protect the privacy of an adult's information from health plans and insurers, when it comes to agencies requesting information on reports of child abuse or neglect, the policy should weigh in favor of protection of the child. The Committee's analysis of the intent of the prior legislation generally supports the sponsor's analysis, and the Committee notes that the amendment proposed by this bill only exempts the request and notice requirement in the narrow situation when information is requested in response to a mandated report, to an agency investigating that report, and only when disclosed by a therapist who has a professional and ethical duty to the interest of the patient. Proposed Author Amendments : Although the author and sponsor disagree with the DRC analysis on the request and notice provisions, they agree with DRC that if it is necessary to clarify that mandated reporters of child abuse and neglect may disclose information to investigating agencies, then it should also be clarified that mandated reporters of elder and dependent abuse are also authorized to disclose information. As noted above, the language authorizing disclosure under Penal Code Section 11167 (relating to child abuse and neglect) is almost identical to the language authorizing disclosure under Welfare & Institutions Code 15633.5 (relating to elder and dependent adult abuse). In addition, at the Committee's suggestion, the author and sponsor agree that the clarifying provisions should be added as a separate exception rather than listing them under the general provision that authorizes disclosures where "otherwise specifically authorized by law." (Civil Code Section 56.10(c)(14).) It creates unnecessary confusion to have general provision - such as that in paragraph (14) - followed by a list of specific examples of that general provision. While this is sometimes done in the writing of statutes, as more examples are AB 2028 Page 10 listed, the general provision becomes less meaningful. Placing the exceptions for mandated reporters in a separate paragraph is, of course, similarly declaratory of existing law, and one could argue that it is similarly unnecessary. However, placing the exceptions in a separate paragraph at least has the virtue of not directly detracting from the force of the general authorization in paragraph (14). In light of these concerns, the author and sponsor have agreed to take the following amendment in this Committee: On page 7 line 7 delete "or to disclosures" and delete lines 8 and 9 entirely. On page 9 after line 23 insert: (22) Information may be disclosed to pursuant to subdivisions (b) and (d) of Section 11167 of the Penal Code or subdivision (a) of Section 15633.5 of the Welfare & Institutions Code. On page 11 delete lines 3 through 5 and insert: (3) Information disclosed by a psychotherapist pursuant to paragraph (22) of subdivision (c) of Section 56.10. REGISTERED SUPPORT / OPPOSITION : Support California Association of Marriage and Family Therapists (sponsor) Disability Rights California (if amended) Opposition None on file Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334