BILL NUMBER: SB 1407 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 30, 2012
AMENDED IN SENATE APRIL 16, 2012
AMENDED IN SENATE MARCH 29, 2012
INTRODUCED BY Senator Leno
FEBRUARY 24, 2012
An act to amend Section 56.11 of add
Section 56.106 to the Civil Code, and to
amend Section 123105 of add Section 123116 to
the Health and Safety Code, and to add Section 5328.03
to the Welfare and Institutions Code, relating to medical
information.
LEGISLATIVE COUNSEL'S DIGEST
SB 1407, as amended, Leno. Medical information: disclosure.
Existing law governs the release of a patient's medical records
and medical information by a health care provider, health care
service plan, pharmaceutical company, or provider. A violation
of these provisions that causes economic loss or personal injury to a
patient is punishable as a misdemeanor. Under existing law, a
patient may inspect his or her medical records if the patient or his
or her representative, as defined, presents a written request to the
health care provider. Existing law also authorizes a health care
provider, health care service plan, pharmaceutical company, or
contractor to release a patient's medical information after receiving
a valid signed authorization from the patient, the patient's legal
representative, as defined, if the patient is a minor or incompetent,
and other specified individuals. Existing law provides that a minor
may be removed from the physical custody of his or her parents in
dependency proceedings if there is a substantial danger to the
physical health of the child or the child is suffering severe
emotional damage and there are no reasonable means to protect the
child without removing him or her.
This bill would provide that a minor patient's parent shall not be
considered the minor's representative for medical information
release purposes if the minor has been removed from that parent's
physical custody in dependency proceedings, except pursuant to court
order, as specified.
This bill would prohibit a psychotherapist, as defined, from
releasing or disclosing the information in the mental health records
of a minor patient to the patient's parent or guardian based solely
on an authorization to release those records signed by the parent or
guardian, and from allowing the parent or guardian to inspect or
obtain those records, if the minor has been removed from the parent's
or guardian's physical custody in dependency proceedings, except if
the juvenile court has authorized the parent or guardian to sign an
authorization for the release of those records after finding that the
authorization order would not be detrimental to the minor. Because a
violation of these provisions that causes economic loss or personal
injury to a patient would be punishable as a misdemeanor, this bill
would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 56.106 is added to the
Civil Code , to read:
56.106. (a) Notwithstanding any other provision of law, a
psychotherapist shall not release mental health records of a minor
patient or disclose the information therein based solely on an
authorization to release those records signed by the minor's parent
or guardian if that minor has been removed from the physical custody
of the parent or guardian pursuant to Section 300 of the Welfare and
Institutions Code, unless the juvenile court has issued an order
authorizing the parent or guardian to sign an authorization for the
release of the records after finding that the order would not be
detrimental to the minor patient.
(b) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(c) This section shall not apply to either a written mental health
record maintained by a health facility as defined in subdivision
(a), (b), or (f) of Section 1250 of the Health and Safety Code, or an
oral disclosure of information in compliance with Section 56.1007 by
that facility.
SEC. 2. Section 123116 is added to the
Health and Safety Code , to read:
123116. (a) Notwithstanding any other provision of law, a
psychotherapist shall not allow a parent or guardian to inspect or
obtain copies of mental health records of a minor patient if that
minor has been removed from the physical custody of the parent or
guardian pursuant to Section 300 of the Welfare and Institutions
Code, unless the juvenile court has issued an order authorizing the
parent or guardian to sign an authorization for the release of the
records after finding that the order would not be detrimental to the
minor patient.
(b) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(c) This section shall not apply to either a written mental health
record maintained by a health facility as defined in subdivision
(a), (b), or (f) of Section 1250, or an oral disclosure of
information in compliance with Section 56.1007 of the Civil Code by
that facility.
SEC. 3. Section 5328.03 is added to the
Welfare and Institutions Code , to read:
5328.03. (a) Notwithstanding Section 5328, a psychotherapist
shall not release mental health records of a minor patient or
disclose the information therein based solely on an authorization to
release those records signed by the minor's parent or guardian if
that minor has been removed from the physical custody of the parent
or guardian pursuant to Section 300, unless the juvenile court has
issued an order authorizing the parent or guardian to sign an
authorization for the release of the records after finding that the
order would not be detrimental to the minor patient.
(b) Notwithstanding Section 5328, a psychotherapist shall not
allow a parent or guardian to inspect or obtain copies of mental
health records of a minor patient if that minor has been removed from
the physical custody of the parent or guardian pursuant to Section
300, unless the juvenile court has issued an order authorizing the
parent or guardian to sign an authorization for the release of the
records after finding that the order would not be detrimental to the
minor patient.
(c) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(d) This section shall not apply to either a written mental health
record maintained by a health facility as defined in subdivision
(a), (b), or (f) of Section 1250 of the Health and Safety Code, or an
oral disclosure of information in compliance with Section 56.1007 of
the Civil Code by that facility.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 56.11 of the Civil Code is
amended to read:
56.11. Any person or entity that wishes to obtain medical
information pursuant to subdivision (a) of Section 56.10, other than
a person or entity authorized to receive medical information pursuant
to subdivision (b) or (c) of Section 56.10, except as provided in
paragraph (21) of subdivision (c) of Section 56.10, shall obtain a
valid authorization for the release of this information.
An authorization for the release of medical information by a
provider of health care, health care service plan, pharmaceutical
company, or contractor shall be valid if it:
(a) Is handwritten by the person who signs it or is in a typeface
no smaller than 14-point type.
(b) Is clearly separate from any other language present on the
same page and is executed by a signature which serves no other
purpose than to execute the authorization.
(c) Is signed and dated by one of the following:
(1) The patient. A patient who is a minor may only sign an
authorization for the release of medical information obtained by a
provider of health care, health care service plan, pharmaceutical
company, or contractor in the course of furnishing services to which
the minor could lawfully have consented under Part 1 (commencing with
Section 25) or Part 2.7 (commencing with Section 60).
(2) The legal representative of the patient, if the patient is a
minor or an incompetent. However, authorization may not be given
under this subdivision for the disclosure of medical information
obtained by the provider of health care, health care service plan,
pharmaceutical company, or contractor in the course of furnishing
services to which a minor patient could lawfully have consented under
Part 1 (commencing with Section 25) or Part 2.7 (commencing with
Section 60). Except pursuant to a court order authorizing the parent
or guardian to sign an authorization for the release of medical
information, a parent or guardian is not considered the legal
representative of a minor patient for purposes of this paragraph if
the minor has been removed from the physical custody of the parent or
guardian pursuant to Section 300 of the Welfare and Institutions
Code. The juvenile court may issue an order authorizing the parent or
guardian to sign an authorization for the release of medical
information upon finding that the order would not be detrimental to
the minor patient.
(3) The spouse of the patient or the person financially
responsible for the patient, where the medical information is being
sought for the sole purpose of processing an application for health
insurance or for enrollment in a nonprofit hospital plan, a health
care service plan, or an employee benefit plan, and where the patient
is to be an enrolled spouse or dependent under the policy or plan.
(4) The beneficiary or personal representative of a deceased
patient.
(d) States the specific uses and limitations on the types of
medical information to be disclosed.
(e) States the name or functions of the provider of health care,
health care service plan, pharmaceutical company, or contractor that
may disclose the medical information.
(f) States the name or functions of the persons or entities
authorized to receive the medical information.
(g) States the specific uses and limitations on the use of the
medical information by the persons or entities authorized to receive
the medical information.
(h) States a specific date after which the provider of health
care, health care service plan, pharmaceutical company, or contractor
is no longer authorized to disclose the medical information.
(i) Advises the person signing the authorization of the right to
receive a copy of the authorization.
SEC. 2. Section 123105 of the Health and Safety
Code is amended to read:
123105. As used in this chapter:
(a) "Health care provider" means any of the following:
(1) A health facility licensed pursuant to Chapter 2 (commencing
with Section 1250) of Division 2.
(2) A clinic licensed pursuant to Chapter 1 (commencing with
Section 1200) of Division 2.
(3) A home health agency licensed pursuant to Chapter 8
(commencing with Section 1725) of Division 2.
(4) A physician and surgeon licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code or pursuant to the Osteopathic Act.
(5) A podiatrist licensed pursuant to Article 22 (commencing with
Section 2460) of Chapter 5 of Division 2 of the Business and
Professions Code.
(6) A dentist licensed pursuant to Chapter 4 (commencing with
Section 1600) of Division 2 of the Business and Professions Code.
(7) A psychologist licensed pursuant to Chapter 6.6 (commencing
with Section 2900) of Division 2 of the Business and Professions
Code.
(8) An optometrist licensed pursuant to Chapter 7 (commencing with
Section 3000) of Division 2 of the Business and Professions Code.
(9) A chiropractor licensed pursuant to the Chiropractic
Initiative Act.
(10) A marriage and family therapist licensed pursuant to Chapter
13 (commencing with Section 4980) of Division 2 of the Business and
Professions Code.
(11) A clinical social worker licensed pursuant to Chapter 14
(commencing with Section 4990) of Division 2 of the Business and
Professions Code.
(12) A physical therapist licensed pursuant to Chapter 5.7
(commencing with Section 2600) of Division 2 of the Business and
Professions Code.
(13) An occupational therapist licensed pursuant to Chapter 5.6
(commencing with Section 2570).
(14) A professional clinical counselor licensed pursuant to
Chapter 16 (commencing with Section 4999.10) of Division 2 of the
Business and Professions Code.
(b) "Mental health records" means patient records, or discrete
portions thereof, specifically relating to evaluation or treatment of
a mental disorder. "Mental health records" includes, but is not
limited to, all alcohol and drug abuse records.
(c) "Patient" means a patient or former patient of a health care
provider.
(d) "Patient records" means records in any form or medium
maintained by, or in the custody or control of, a health care
provider relating to the health history, diagnosis, or condition of a
patient, or relating to treatment provided or proposed to be
provided to the patient. "Patient records" includes only records
pertaining to the patient requesting the records or whose
representative requests the records. "Patient records" does not
include information given in confidence to a health care provider by
a person other than another health care provider or the patient, and
that material may be removed from any records prior to inspection or
copying under Section 123110 or 123115. "Patient records" does not
include information contained in aggregate form, such as indices,
registers, or logs.
(e) "Patient's representative" or "representative" means any of
the following:
(1) A parent or guardian of a minor who is a patient, unless the
minor patient has been removed from the physical custody of the
parent or guardian pursuant to Section 300 of the Welfare and
Institutions Code. The juvenile court may issue an order making that
parent or guardian the patient representative of the minor patient
upon finding that the order would not be detrimental to the minor
patient.
(2) The guardian or conservator of the person of an adult patient.
(3) An agent as defined in Section 4607 of the Probate Code, to
the extent necessary for the agent to fulfill his or her duties as
set forth in Division 4.7 (commencing with Section 4600) of the
Probate Code.
(4) The beneficiary as defined in Section 24 of the Probate Code
or personal representative as defined in Section 58 of the Probate
Code, of a deceased patient.
(f) "Alcohol and drug abuse records" means patient records, or
discrete portions thereof, specifically relating to evaluation and
treatment of alcoholism or drug abuse.