BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2083 Hearing Date: June 21, 2016
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|Author: |Chu |
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|Version: |June 14, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|ML |
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Subject: Interagency Child Death Review
HISTORY
Source: Santa Clara County Board of Supervisors
Prior Legislation:SB 39 (Migden) - Ch. 468, Stats. 2007
SB 1668 (Bowen) - Ch. 813, Stats. 2006
SB 1018 (Simitian) - Ch. 140, Stats. 2005
SB 525 (Polanco) - Ch. 1012, Stats. 1999
AB 4585 (Polanco) - Ch. 1580, Stats. 1988
Support: Board of Behavioral Sciences; County Behavioral Health
Directors Association of California; County Health
Executives Association of California; Health Officers
Association of California; Junior Leagues of
California State Public Affairs Committee; Legal
Advocates for Children and Youth
Opposition:None known
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to allow agencies, at the request of
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an interagency child death review team, to disclose otherwise
confidential information.
Existing law 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. (Penal
Code § 11174.32.)
Existing law 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. (Penal Code § 11174.32(a).)
Existing law 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 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. (Penal Code §
11174.32(b).)
Existing law 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;
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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).)
Existing law 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. (Penal Code § 11174.32(d).)
Existing law requires each child death review team to make
available to the 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. (Penal Code § 11174.32(e).)
Existing law 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." (Penal Code § 13300, subd. (a)(1).)
Existing law 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. (Penal Code § 13300, subd.
(a)(2).)
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Existing law 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. (Penal Code § 13300, subd. (b).)
Existing law 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 public utility
when access is needed to assist in employing person who will be
entering private residences. (Penal Code § 13300, subd. (c).)
Existing law 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. (Penal Code §§ 13300, subd. (h), and 13305.)
Existing law 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.
(Penal Code § 13302.)
Existing law 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. (Penal Code § 13303.)
Existing law 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
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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.
(Penal Code § 11105, subd. (b).)
Existing law 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.
(Penal Code § 11105, subd. (c).)
Existing law allows DOJ to charge a fee to reimburse department
costs, and a surcharge to fund system maintenance and
improvements, 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. (Penal Code § 11105,
subd. (e).)
Existing law 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. (Penal Code § 11105.3, subd.
(a).)
Existing law 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. (Penal Code § 11142.)
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Existing law 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. (Civil
Code § 56.10, subd. (a).)
Existing law 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
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
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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
without delay upon request, or
i) When otherwise specifically required by law. (Civil
Code, § 56.10, subd. (b).)
Existing law 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. (Civil Code §
56.10, subd. (c).)
Existing law limits the disclosure of mental health information,
as specified. (Welfare & Institutions Code § 5328.)
Existing law limits the disclosure of information from child
abuse reports and investigations, as specified. (Penal Code §
11167.5.)
Existing law 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. (Penal Code § 11163.2.)
Existing law limits the disclosure of records of in-home
supportive services, as specified. (Welfare & Institutions Code
§ 10850.)
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Existing law 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;
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.)
Existing law 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.)
This bill allows, but does not require agencies to disclose,
orally or in writing, otherwise confidential information
pertaining to the child's death as requested by a child death
review team. This bill does not require those agencies to
disclose any requested confidential information. The disclosed
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;
e) Criminal offender record information, as defined;
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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.
This bill states that agencies and individuals receiving these
requests may rely on the request to release the information
sought in the request.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
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adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
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1. Stated Need for This Bill
The author states:
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 problems to
help increase public awareness of risks to children in
the community.
AB 2083 amends the statute authorizing use of child death
review teams to specifically provide such teams the
ability to review mental health information when
conducting reviews of suspicious child deaths by adding
language modeled after provisions contained in existing
statutes applicable to elder and dependent adult and
domestic violence death review teams. The ability to
share information will 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
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. In Sacramento County for example, the
Sacramento County Child Death Review Team reviews the deaths of
every child that dies and subsequently uses the report's
findings in order to create various 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.
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
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the 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 teams.
3. Support
The sponsor of the bill, the Santa Clara County Board of
Supervisors, states:
A Child Death Review Team (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
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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.
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