BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 THIRD READING


          Bill No:  AB 2028
          Author:   Hernandez (D)
          Amended:  6/22/10 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  : 5-0, 06/15/10
          AYES: Corbett, Harman, Hancock, Leno, Walters

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8 

           ASSEMBLY FLOOR  :  74-0, 5/6/10 (Consent) - See last page for  
            vote


           SUBJECT :    Confidentiality of medical information:   
          disclosure

           SOURCE  :     California Association of Marriage and Family  
          Therapists


           DIGEST  :     This bill amends the Confidentiality of Medical  
          Information Act to expressly authorize mandated reporters  
          of child abuse and neglect and elder and dependent adult  
          abuse to subsequently disclose requested information to the  
          agency investigating the report of abuse or neglect.  This  
          bill exempts information disclosed by a psychotherapist who  
          is required to make a report from existing law's  
          requirement that the entity requesting the information meet  
          certain request and notification requirements.  This bill  
          also makes a technical correction to last year's AB 681  
          (Hernandez), Chapter 464, Statutes of 2009).
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           ANALYSIS  :    Existing law requires individuals in certain  
          professions to report child abuse and neglect or elder and  
          dependent adult abuse to the appropriate agencies.   
          Existing law defines "mandated reporters" for purposes of  
          these requirements and authorizes mandated reporters to  
          disclose relevant information to agencies that are  
          investigating the reported abuse or neglect.  (Child Abuse  
          and Neglect Reporting Act (Pen. Code Sec. 11164 et seq.);  
          Elder Abuse and Dependent Adult Civil Protection Act (Wel.  
          & Inst. Code Sec. 15630 et seq.).)

          Existing law, the Confidentiality of Medical Information  
          Act (CMIA), prohibits a health care provider, health care  
          service plan, or contractor from disclosing medical  
          information regarding a patient, enrollee, or subscriber  
          without first obtaining an authorization, except as  
          specified.  (Civ. Code Sec. 56.10(a).)  

          Existing law requires a provider of health care, health  
          care service plan, or contractor to disclose medical  
          information if the disclosure is specifically required by  
          law.  (Civ. Code Sec. 56.10(b)(9).)  

          Existing law permits a provider of health care or service  
          plan to disclose medical information when the disclosure is  
          otherwise specifically authorized by law, including, but  
          not limited to, the voluntary reporting, either directly or  
          indirectly, to the federal Food and Drug Administration of  
          adverse events related to drug products or medical device  
          problems.  (Civ. Code Sec. 56.10(c)(14).)

          This bill provides that information may be disclosed by an  
          individual mandated to report child abuse or neglect or  
          elder or dependent adult abuse to an agency investigating  
          that reported abuse.  This bill specifies that entities  
          covered by the federal Health Insurance Portability and  
          Accountability Act (Pub. Law 104-191) must comply with the  
          requirements of that law if the disclosure is not for the  
          purpose of public health surveillance, investigation or  
          intervention or reporting an injury or death. 

          Existing law prohibits a health care provider, health care  
          service plan, or contractor, from disclosing medical  

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          information regarding a patient's participation in  
          outpatient treatment with a psychotherapist to persons or  
          entities authorized by law to receive that information,  
          except when the disclosure is for the purposes of diagnosis  
          or treatment, unless the person or entity requesting the  
          information submits to the health care provider, health  
          care service plan, or contractor a signed written request  
          that includes all of the following: 

          1.The specific information relating to a patient's  
            participation in outpatient treatment with a  
            psychotherapist being requested and its specific intended  
            use or uses;  
          2.The length of time during which the information will be  
            kept before being destroyed;
          3.A statement that the information will not be used for any  
            purpose other than its intended use; and 
          4.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 or will  
            return the information and all copies of it when the  
            specified timeframe has expired.  (Civ. Code Sec.  
            56.104(a).)

          Existing law requires the person or entity requesting the  
          information to submit a copy of the written request to the  
          patient within 30 days of receipt of the information  
          requested, unless the patient has waived his or her right  
          to a copy.  (Civ. Code Sec. 56.104(b).)

          Existing law provides that these notice requirements do not  
          apply to the disclosure or use of medical information by a  
          law enforcement agency when required for an investigation  
          of unlawful activity, unless the disclosure is otherwise  
          prohibited by law.  (Civ. Code Sec. 56.104(d).)

          Existing law also provides that these notice requirements  
          do not apply to information requested by law enforcement or  
          by the target of the threat subsequent to an authorized  
          disclosure by a psychotherapist, as specified, in which the  
          additional information is clearly necessary to prevent the  
          serious and imminent threat disclosed.  (Civ. Code Sec.  
          56.104(e)(2).)


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          This bill provides that these notice requirements also do  
          not apply to information disclosed by a psychotherapist to  
          an agency investigating a report of child abuse or neglect  
          or elder or dependent adult abuse.

          This bill also specifies that the information exempted  
          under Section 56.104(e)(2) must be requested from a  
          psychotherapist, not from other entities subject to the  
          section such as a health care provider or health care  
          service plan.

           Prior Legislation  

          AB 681 (Hernandez), Chapter 464, Statutes of 2009, which  
          passed the Senate on 8/31/09 (36-0).

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

           SUPPORT  :   (Verified  8/2/10)

          California Association of Marriage and Family Therapists  
          (source) 
          American Association for Marriage and Family Therapy - CA  
          Division
          California Chiropractic Association
          California Medical Association
          Los Angeles County District Attorney's Office
          Osteopathic Physicians and Surgeons of California


           ARGUMENTS IN SUPPORT  :    According to the author's office:
          
               Currently, there is not a specific exception listed  
               for disclosures that are made by individuals making  
               child abuse reports pursuant to Penal Code Section  
               11167 (b) or (c).  CAMFT believes that this important  
               exception to confidentiality deserves specific mention  
               to make it abundantly clear that a mandated reporter  
               of child abuse is permitted, without the prior written  
               authorization of the patient, to cooperate with the  
               investigator of the reported suspected or known child  
               abuse.  Additionally, the bill makes it clear that the  
               requirements of Section 56.104 do not apply to  

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               disclosures made by mandated reporters to child abuse  
               investigators.  Last year, AB 681 (Hernandez) created  
               a similar exception  for disclosure made in a Tarasoff  
               "dangerous patient" situation.  ... [AB 2028 makes] it  
               clear in the Confidentiality of Medical Information  
               Act (CMIA, Civil Code  Section 56.10) that  
               psychotherapists and other health care providers who  
               report suspected child abuse or neglect are allowed to  
               provide information to those who are investigating the  
               report.  The bill would make a conforming exception to  
               Civil Code Section 56.104 so that the information  
               could be provided in a more timely manner to  
               investigators. 
          
          The California Association of Marriage and Family  
          Therapists writes in support that the bill "will help to  
          have mandated reporters of child abuse and elder and  
          dependent adult abuse feel more comfortable in disclosing  
          information to those who are responsible for investigating  
          reports of child abuse and neglect and elder and dependent  
          adult abuse.  In other words, this legislation will benefit  
          children, elders, and dependent adults who have been  
          abused."


           ASSEMBLY FLOOR  :  
          AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill  
            Berryhill, Tom Berryhill, Blakeslee, Blumenfield,  
            Bradford, Brownley, Buchanan, Caballero, Charles  
            Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De  
            Leon, DeVore, Emmerson, Eng, Evans, Feuer, Fletcher,  
            Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,  
            Garrick, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,  
            Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,  
            Bonnie Lowenthal, Ma, Miller, Monning, Nava, Nestande,  
            Niello, Nielsen, Norby, V. Manuel Perez, Portantino,  
            Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio,  
            Audra Strickland, Swanson, Torlakson, Torres, Torrico,  
            Tran, Villines, Yamada, John A. Perez
          NO VOTE RECORDED: Bass, Block, De La Torre, Gilmore,  
            Mendoza


          RJG:nl  8/3/10   Senate Floor Analyses 

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                         SUPPORT/OPPOSITION:  SEE ABOVE

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