BILL ANALYSIS Ó
AB 2083
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Date of Hearing: April 19, 2016
Consultant: Matt Dean
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2083 (Chu) - As Introduced February 17, 2016
SUMMARY: Allows agencies, at the request of an interagency
child death review team, to disclose otherwise confidential
information. Specifically, this bill:
1)Allows, but does not require, agencies to disclose, orally or
in writing, otherwise confidential information to an
interagency child death review team, but does not require
those agencies to disclose any requested confidential
information. This information may include the following:
a) Medical information, as provided;
b) Mental health information, as provided;
c) Information from child abuse reports and investigations,
except the identity of the person making the report which
shall not be disclosed;
d) State summary criminal history information, as defined;
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e) Criminal offender record information, as defined;
f) Local summary criminal history information, as defined;
g) Information pertaining to reports by health
practitioners of persons suffering from physical injuries
inflicted by means of a firearm or of persons suffering
physical injury where the injury is a result of assaultive
or abusive conduct; and
h) Records of in-home supportive services, unless
disclosure is prohibited by federal law.
2)States that agencies and individuals receiving these requests
may rely on the request to release the information sought in
the request.
EXISTING LAW:
1)Allows counties to establish interagency child death review
teams to assist local agencies in identifying and reviewing
suspicious child deaths and facilitating communication among
persons who perform autopsies and the various persons and
agencies involved in child abuse or neglect cases, but does
not require counties to establish child death review teams.
(Pen. Code, § 11174.32.)
2)States that interagency child death teams have been used
successfully to ensure that incidents of child abuse or
neglect are recognized and other siblings and non-offending
family members receive the appropriate services in cases where
a child has expired. (Pen. Code, § 11174.32(a).)
3)States that each county may develop a protocol that may be
used as a guideline by persons performing autopsies on
children to assist coroners and other persons who perform
autopsies in the identification of child abuse or neglect, in
the determination of whether child abuse or neglect
contributed to death or whether child abuse or neglect had
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occurred prior to but was not the actual cause of death, and
in the proper written reporting procedures for child abuse or
neglect, including the designation of the cause and mode of
death. (Pen. Code, § 11174.32(b).)
4)States that in developing an interagency child death team and
an autopsy protocol, each county, working in consultation with
local members of the California State Coroner's Association
and county child abuse prevention coordinating councils, may
solicit suggestions and final comments from persons,
including, but not limited to, the following:
a) Experts in the field of forensic pathology;
b) Pediatricians with expertise in child abuse;
c) Coroners and medical examiners;
d) Criminologists;
e) District attorneys;
f) Child protective services staff;
g) Law enforcement personnel;
h) Representatives of local agencies which are involved
with child abuse or neglect reporting;
i) County health department staff who deals with children's
health issues; and
j) Local professional associations of persons described in
paragraphs (1) to (9), inclusive. (Pen. Code, §
11174.32(c).)
5)Clarifies that records exempt from disclosure to third parties
pursuant to state or federal law shall remain exempt from
disclosure when they are in the possession of a child death
review team. (Pen. Code, § 11174.32(d).)
6)Requires each child death review team to make available to the
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public findings, conclusions and recommendations of the team,
including aggregate statistical data on the incidences and
causes of child deaths. The team is required to withhold the
child's last name unless certain exceptions apply. (Pen.
Code, § 11174.32(e).)
7)Defines "local summary criminal history information" as "the
master record of information compiled by any local criminal
justice agency pertaining to the identification and criminal
history of any person, such as name, date of birth, physical
description, dates of arrests, arresting agencies and booking
numbers, charges, dispositions, and similar data about the
person." (Pen. Code, § 13300, subd. (a)(1).)
8)States that "local summary criminal history information" does
not refer to records and data compiled by criminal justice
agencies other than that local agency, nor does it refer to
records of complaints to or investigations conducted by, or
records of intelligence information or security procedures of,
the local agency. (Pen. Code, § 13300, subd. (a)(2).)
9)Requires a local criminal justice agency to furnish local
summary criminal history information to any of the following
when needed in the course of their duties: the courts,
peace officers, district attorneys, prosecuting city attorneys,
probation and parole officers, public defender or attorney of
record in a criminal case or in a case involving a certificate
of rehabilitation, any city or county district office when
needed in fulfilling employment, certification or licensing
duties, the subject of the local summary criminal history
information; managing or supervising correction officers of a
county jail, local child support agencies, county child
welfare agencies, humane officers, and other expressly
authorized by statute, as specified. (Pen. Code, § 13300,
subd. (b).)
10)Permits a local criminal justice agency to furnish local
summary criminal history information to the following, upon a
showing of compelling need, to other specified entities,
including a public utility which operates a nuclear energy
facility, a peace officer from another country, public
officers other than peace officers of the United States, a
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public utility when access is needed to assist in employing
person who will be entering private residences. (Pen. Code, §
13300, subd. (c).)
11)States that it is not a violation to disseminate statistical
or research information obtained from a record, provided that
the identity of the subject of the record is not disclosed.
(Pen. Code, §§ 13300, subd. (h), and 13305.)
12)States that an employee of a local criminal justice agency
who knowingly furnishes a record or information obtained from
a record to a person who is not authorized by law to receive
the record or information is guilty of a misdemeanor. (Pen.
Code, § 13302.)
13)Punishes as a misdemeanor any person authorized by law to
receive a record or information obtained from a record who
knowingly furnishes the record or information to a person who
is not authorized by law to receive the record or information.
(Pen. Code, § 13303.)
14)Requires the DOJ to furnish state summary criminal history
information to specified entities, if needed in the course of
their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local
government, a public utility, or any other entity in
fulfilling employment, certification, or licensing duties,
specified restrictions listed in the Labor Code are followed.
(Pen. Code, § 11105, subd. (b).)
15)Allows the DOJ to furnish state summary criminal history
information to specified entities and, when specifically
authorized, federal-level criminal history information, upon a
showing of a compelling need, provided that when information
is furnished to assist an agency, officer, or official of
state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing
duties, specified restrictions listed in the Labor Code are
followed. (Pen. Code, § 11105, subd. (c).)
16)Allows DOJ to charge a fee to reimburse department costs, and
a surcharge to fund system maintenance and improvements,
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whenever state summary criminal history information is
furnished as the result of an application and is to be used
for employment, licensing, or certification purposes. Allows,
notwithstanding any other law, any person or entity required
to pay a fee to DOJ for information received under this
provision to charge the applicant a fee sufficient to
reimburse the person or entity for this expense. (Pen. Code,
§ 11105, subd. (e).)
17)Authorizes, notwithstanding any other law, a human resource
agency or an employer to request from DOJ records of all
convictions or any arrest pending adjudication involving the
offenses specified of a person who applies for a license,
employment, or volunteer position, in which he or she would
have supervisory or disciplinary power over a minor or any
person under his or her care. Requires DOJ to furnish the
information to the requesting employer and also send a copy of
the information to the applicant. (Pen. Code, § 11105.3,
subd. (a).)
18)Punishes as a misdemeanor any person authorized by law to
receive a record or information obtained from a record who
knowingly furnishes the record or information to a person who
is not authorized by law to receive the record or information.
(Pen. Code, § 11142.)
19)Prohibits a provider of health care, health care service
plan, or contractor from disclosing medical information
regarding a patient of the provider of health care or an
enrollee or subscriber of a health care service plan without
first obtaining an authorization, except as provided. (Civ.
Code, § 56.10, subd. (a).)
20)Requires a provider of health care, health care service plan,
or contractor to disclose medical information regarding a
patient of the provider of health care or an enrollee or
subscriber of a health care service plan if the disclosure is
compelled by any of the following:
a) By a court pursuant to an order of that court;
b) By a board, commission, or administrative agency for
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purposes of adjudication pursuant to its lawful authority;
c) By a party to a proceeding before a court or
administrative agency pursuant to a subpoena, subpoena
duces tecum, notice to appear served pursuant to Section
1987 of the Code of Civil Procedure, or any provision
authorizing discovery in a proceeding before a court or
administrative agency;
d) By a board, commission, or administrative agency
pursuant to an investigative subpoena issued under Article
2 (commencing with Section 11180) of Chapter 2 of Part 1 of
Division 3 of Title 2 of the Government Code;
e) By an arbitrator or arbitration panel, when arbitration
is lawfully requested by either party, pursuant to a
subpoena duces tecum issued under Section 1282.6 of the
Code of Civil Procedure, or another provision authorizing
discovery in a proceeding before an arbitrator or
arbitration panel;
f) By a search warrant lawfully issued to a governmental
law enforcement agency;
g) By the patient or the patient's representative;
h) By a coroner, when requested in the course of an
investigation by the coroner's office for the purpose of
identifying the decedent or locating next of kin, or when
investigating deaths that may involve public health
concerns, organ or tissue donation, child abuse, elder
abuse, suicides, poisonings, accidents, sudden infant
deaths, suspicious deaths, unknown deaths, or criminal
deaths, or upon notification of, or investigation of,
imminent deaths that may involve organ or tissue donation
pursuant to Section 7151.15 of the Health and Safety Code,
or when otherwise authorized by the decedent's
representative. Medical information requested by the
coroner under this paragraph shall be limited to
information regarding the patient who is the decedent and
who is the subject of the investigation or who is the
prospective donor and shall be disclosed to the coroner
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without delay upon request, or
i) When otherwise specifically required by law. (Civ.
Code, § 56.10, subd. (b).)
21)Allows a provider of health care, health care service plan,
or contractor to disclose medical information regarding a
patient of the provider of health care or an enrollee or
subscriber of a health care service plan to authorized
individuals or entities for research, billing, treatment and
other purposes, as specified. (Civ. Code, § 56.10, subd.
(c).)
22)Limits the disclosure of mental health information, as
specified. (Welf. & Inst. Code, § 5328.)
23)Limits the disclosure of information from child abuse reports
and investigations, as specified. (Pen. Code, § 11167.5.)
24)Limits the disclosure of information pertaining to reports by
health practitioners of persons suffering from physical
injuries inflicted by means of a firearm or of persons
suffering physical injury where the injury is a result of
assaultive or abusive conduct. (Pen. Code, § 11163.2.)
25)Limits the disclosure of records of in-home supportive
services, as specified. (Welf. & Inst. Code, § 10850.)
26)States that a Health Insurance Portability and Accountability
Act of 1996 (HIPPA) covered entity may use or disclose health
information as follows:
a) To the individual for treatment, payment or health care
operations;
b) Incident to a use or disclosure otherwise permitted if
it is the minimum necessary to accomplish the purpose of
the use or disclosure;
c) Pursuant to an authorization or agreement by the
individual;
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d) Under circumstances set out in the rule for which
neither authorization nor agreement is required. (42
U.S.C. §§ 201 et seq.; 45 C.F.R. §§ 164 et seq.)
27)Holds that HIPPA regulations preempt any contrary provision
of state law unless the state law provides greater privacy
protection for an individual whose health information is
protected. (42 U.S.C. §§ 201 et seq.; 45 C.F.R. §§ 160 et
seq; See In re Estate of Broderick (2005) 125 P.3d 564.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Interagency
child death review teams have been used successfully to ensure
that incidents of child abuse or neglect are recognized and
other siblings and non-offending family members receive the
appropriate services in cases involving the death of a child.
Actions by child death review teams may include identification
of emerging trends and safety concerns in other types of child
deaths in order to inform and address needs for prevention
efforts. Disclosures of this information, which in some
instances in prohibited by current law, would help improve the
child death review team's investigation and detection of child
abuse and neglect as well as help identify trends to reduce
the incidents of child death."
2)Background on Child Death Review Teams: The primary purpose of
child death review teams is to prevent future child deaths.
At the county level, these teams produce educational materials
so that the more common causes of child death can be
prevented. For example, according to the author, in
Sacramento "The Sacramento County Child Death Review Team,
which reviews the deaths of every child that dies in
Sacramento County, has used the report's findings in order to
create public awareness campaigns. The recommendations have
translated to the Shaken Baby Syndrome Prevention Campaign,
the Infant Safe Sleep Campaign, and the Drowning Prevention
Campaign to reduce preventable deaths." However, each
county's experience is different. This is where statewide
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child death review can help prevent counties from duplicating
efforts.
The statewide child death review council is responsible for
collecting data and information from the counties and turning
it into reports to the public and Legislature. Part of the
statutory scheme that created child death review teams
included creation of the Child Death Review Council "to
coordinate and integrate state and local efforts to address
fatal child abuse or neglect, and to create a body of
information to prevent child deaths." (Penal Code Section
11174.34(a)(1).) The Child Death Review Council is required
to "[a]nalyze and interpret state and local data on child
death in an annual report to be submitted to local child death
review teams with copies to the Governor and the Legislature,
no later than July 1 each year. Copies of the report shall
also be distributed to California public officials who deal
with child abuse issues and to those agencies responsible for
child death investigation in each county. The report shall
contain, but not be limited to, information provided by state
agencies and the county child death review teams for the
preceding year." (Penal Code Section 11174.34(d)(1).)
Therefore, a report analyzing the data collected by each local
child death review team is currently a public document.
Requiring each local child death review team to also make
public its own data appears to be consistent with the overall
objectives of the teams, i.e., creating a body of information
on the causes of child deaths to help prevent such tragedies.
Increased transparency may also enhance the public's trust in
local child death review.
3)Argument in Support: According to the Santa Clara Board of
Supervisors, "As you are aware, counties are authorized in
statute to form a Child Death Review Team (CDRT). The statute
suggests that membership may include, but is not limited to,
the coroner, district attorney, child protective services, and
law enforcement. The Santa Clara County CDRT is a
multidisciplinary team comprised of representatives from a
number of County agencies as well as community organizations.
Through a process of interagency collaboration and discussion,
it reviews the circumstances surrounding instances of
unexpected child death within the County that are reported to
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the Medical Examiner/Coroner's Office. The purpose of the
reviews is to discover ways to improve children's lives, and
to prevent serious childhood injury and deaths in the future.
The CDRT may identify emerging trends and safety problems to
help increase public awareness of risks to children in the
community.
"A CDRT review may include discussion of medical information for
the purposes of identifying and reviewing instances of child
abuse and neglect, which is permitted under the Health
Insurance Portability and Accountability Act (HIPPA). State
law, however, provides greater protection to public mental
health services and prevents staff from the County's
Behavioral Health Department from disclosing information
contained in mental health records. While California's other
death review statutes related to elder death review teams and
domestic violence review teams allow mental health information
to be shared, the corresponding child death review statute is
silent on this topic.
"AB 2083 would revise the authorizing statute for CDRTs to
mirror the language in the elder death review team and
domestic violence review team statutes to allow CDRTs to
discuss mental health information when conducting their review
of child abuse and neglect. The ability to discuss mental
health information will allow for a complete review, which
would help improve CDRT's investigations and help identify
trends to reduce the incidents of child death."
4)Argument in Opposition: According to the California Public
Defenders Association, "Existing law authorizes a county to
establish an interagency child death review team to assist
local agencies in identifying and reviewing suspicious child
deaths and facilitating communication among persons who
perform autopsies and the various persons and agencies
involved in child abuse or neglect cases. Existing law
requires records that are exempt from disclosure to 3rd
parties pursuant to state or federal law to remain exempt from
disclosure when they are in the possession of a child death
review team.
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"This bill would authorize the voluntary disclosure of specified
information, including mental health records, criminal history
information, and child abuse reports, by an individual or
agency to an interagency child death review team.
"We do not see the need for this legislation, and believe its
implementation may raise additional challenges and legal
issues.
"First and foremost, if indeed these records are a necessary
part of an investigation into the death of child, then a court
reviewing such a request would surely grant the release of the
documents.
"Second, this bill provides no guidance to agencies who maintain
privileged and confidential documents regarding when such
documents should be released. Documents are confidential for a
reason- generally because they contain sensitive personal
information that could cause harm if released. Moreover,
autopsy reports are a matter of public record. Thus, if
privileged information was disclosed to a death review team
and referenced in the autopsy report, the privileged
information would become public record.
"Finally, there is currently a move towards trying to reduce
contextual bias or the biasing of opinions based on
information that is considered domain irrelevant from opinions
of forensic scientists including medical examiners. The
privileged and otherwise confidential information is in many
cases precisely the type of domain irrelevant information that
should not be considered in making a determination regarding
manner of death."
5)Related Legislation: AB 1737 (McCarty) would require each
county to establish an interagency child death review team.
AB 1737 is pending in the Assembly Committee on
Appropriations.
6)Prior Legislation:
a) SB 39 (Migden), Chapter 468, Statutes of 2007, required
that juvenile case files that pertain to any child who died
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as the result of child abuse or neglect shall be released
to the public, subject to certain limitations set forth in
the bill. SB 39 adds specified attorneys to the persons
allowed access to a juvenile case file.
b) AB 1668 (Bowen), Chapter 813, Statutes of 2006, provided
that interagency child death review team records that are
exempt from disclosure to third parties pursuant to state
or federal law remain exempt from disclosure when they are
in the possession of a child death review team; provides
confidentiality provisions for child death review teams;
and provided that each child death review team shall
annually make available to the public findings, conclusions
and recommendations of the team, including aggregate
statistical data on the incidences and causes of child
death.
c) SB 525 (Polanco), Chapter 1012, Statutes of 1999, added
more state and private entities to the members of the
California State Child Death Review Council, specified
additional duties for the council and the Department of
Justice in connection with gathering and tracking
information regarding child deaths from abuse or neglect,
and specified additional duties for the State Department of
Health Services in connection with tracking child abuse
information in specified state data systems.
d) AB 4585 (Polanco), Chapter 1580, Statutes of 1988,
authorized counties to establish interagency child death
teams and autopsy protocol.
REGISTERED SUPPORT / OPPOSITION:
Support
Santa Clara County Board of Supervisors (Sponsor)
County Health Executives Association of California
Opposition
California Public Defenders Association
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Analysis Prepared
by: Matt Dean / PUB. S. / (916) 319-3744