BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2028| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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). CONTINUED AB 2028 Page 2 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 CONTINUED AB 2028 Page 3 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).) CONTINUED AB 2028 Page 4 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 CONTINUED AB 2028 Page 5 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 CONTINUED AB 2028 Page 6 SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED