BILL ANALYSIS Ó AB 2119 Page 1 Date of Hearing: May 3, 2016 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Ed Chau, Chair AB 2119 (Chu) - As Amended April 27, 2016 SUBJECT: Medical information: disclosure: medical examiners and forensic pathologists SUMMARY: Adds "medical examiner" and "forensic pathologist" to as the list of professionals working in the office of a county coroner who are eligible to request and receive a decedent's medical information under California's medical privacy laws. Specifically, this bill: 1)Requires a provider of health care, a health care service plan, or contractor to disclose, without delay, medical information about a patient if requested by a medical examiner or forensic pathologist, provided the request is for the purpose of a coroner's office investigation to identify the decedent or locate 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, or when otherwise authorized by the decedent's representative. 2)Authorizes a provider of health care or a health care service AB 2119 Page 2 plan to disclose medical information to a medical examiner or forensic pathologist of a county coroner's office, when requested for all purposes not included in the above provision. 3)Prohibits a medical examiner, forensic pathologist, or coroner from disclosing medical information obtained under this bill to a third party, unless there is a court order. 4)Clarifies that other sections of law authorizing only a coroner to have access to medical information regarding patients in state mental hospitals and state developmental centers are not affected by this bill. 5)Specifies that a "medical examiner, forensic pathologist, or coroner" is limited to a licensed physician who currently performs official autopsies on behalf of a county coroner's office or medical examiner's office, whether as a government employee or under contract to that office. 6)Makes legislative findings as to the need to limit public access to records shared with a medical examiner or forensic pathologist under this bill. 7)Makes other technical, nonsubstantive changes to statute. EXISTING LAW: 1)Prohibits, under the federal Health Insurance Portability and Accountability Act (HIPAA), a covered entity (health plan, AB 2119 Page 3 health care provider, and health care clearing house) from disclosing medical information, except as specified or as authorized by the patient in writing. (45 C.F.R. Sec. 164.500 et seq.) 2)Prohibits, under the state Confidentiality of Medical Information Act (CMIA), providers of health care, health care service plans, or contractors, as defined, from sharing medical information without the patient's written authorization, subject to certain exceptions. (Civil Code (CC) Section 56 et seq.) 3)Defines "medical information" as individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient's medical history, mental or physical condition, or treatment. (CC 56.05(g)) 4)Defines "individually identifiable" as medical information that includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the patient's name, address, electronic mail address, telephone number, or Social Security number, or other information that, alone or in combination with other publicly available information, reveals the individual's identity. (CC 56.05(g)) 5)Defines "provider of health care" as any person licensed or certified pursuant to the Business & Professions Code; any person licensed pursuant to the Osteopathic Initiative Act or the Chiropractic Initiative Act; any clinic, health AB 2119 Page 4 dispensary, or licensed health facility licensed, as specified. (CC 56.05(m)) 6)Defines a "licensed health care professional" as any person licensed or certified pursuant to the Business and Professions Code, the Osteopathic Initiative Act or the Chiropractic Initiative Act, or the Health and Safety Code, as specified. (CC 56.05(h)) 7)Defines "health care service plan" as any entity regulated pursuant to the Knox-Keene Health Care Service Plan Act of 1975. (CC 56.05(g)) 8)Subjects any provider of health care, a health care service plan, pharmaceutical company, or contractor, who negligently creates, maintains, preserves, stores, abandons, destroys, or disposes of written or electronic medical records, to damages in a civil action or an administrative fine, as specified. (CC 56.36) 9)Requires, as an exception to the above prohibition against sharing a patient's medical information, a provider of health care, a health care service plan, or contractor to disclose without delay medical information about a patient if requested by a coroner, provided that the coroner's request is for the purpose of an investigation to identify 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, AB 2119 Page 5 imminent deaths that may involve organ or tissue donation, or when otherwise authorized by the decedent's representative. (CC 56.10(b)(8)) 10)Authorizes a provider of health care or a health care service plan to disclose medical information to a county coroner, when requested for all purposes not included in the above exception (CC 56.10(b)(8)). (CC 56.10(c)(6)) FISCAL EFFECT: None. This bill is keyed nonfiscal by the Legislative Counsel. COMMENTS: 1)Purpose of this bill . This bill is intended to authorize a provider of public mental health services to release a decedent's mental health information to a coroner, medical examiner, or forensic pathologist when required in the course of an investigation into the cause and manner of the decedent's death, while also prohibiting the disclosure of such records to third parties. This measure is sponsored by the County of Santa Clara. 2)Author's statement . According to the author's office, "Medical diagnoses and mental health issues affect one another and are more complex than once realized. The lack of access to mental health records restricts the coroner's and/or medical examiner's ability to consider all potential causes of death. Access to mental health records by a coroner or medical examiner can help contribute to the understanding of how the effects of mental health illness relate to cause of death and educate the general public and medical communities about the findings. AB 2119 Page 6 "AB 2119 would authorize a provider of public mental health services to disclose mental health records regarding a patient to a coroner, medical examiner, or forensic pathologist when requested in the course of an investigation by a coroner, medical examiner, or forensic pathologist, and the patient is the decedent who is the subject of the investigation." 3)Updating medical privacy law to include medical examiners and forensic pathologists . Current law does not grant medical examiners and forensic pathologists access to a decedent's private medical records unless approved by the next-of-kin or through a court order. When the deceased is homeless, the next-of-kin cannot be identified and securing a court order is problematic. In the court order process, the judge reviews the mental health records in closed chambers and decides which records may be released to the coroner or medical examiner. The time involved in securing a court order can delay completion of an autopsy and, ultimately, the identification of the deceased, the determination of cause and manner of death, and the notification of next of kin. As a result, the author asserts that a lack of access to mental health records can restrict a medical examiner's or forensic pathologist's ability to consider all potential causes of death. This bill would authorize a provider of medical or mental health services to disclose medical and mental health records regarding a patient to a county medical examiner or forensic pathologist when requested in the course of an investigation by a medical examiner or forensic pathologist and the patient is the decedent who is the subject of the investigation. Current law already allows county coroners access to this data, but the statute does not specifically allow medical AB 2119 Page 7 examiners and forensic pathologists the same access. As an added measure of privacy protection, this bill would also explicitly prohibit the disclosure of medical information obtained under these provisions to a third party, absent a court order. 4)Arguments in support . This bill is sponsored by the County of Santa Clara, which states in support: "Mental health illness and medical ailments are more integrated and complex than once thought. By providing the? medical examiner and forensic pathologist access to?records, more definitive and accurate causes of death will be rendered. A more accurate diagnosis may aid the family in addressing other health concerns not previously identified especially in those illnesses which have a genetic predisposition." 5)Related legislation . SB 1443 (Galgiani) would also amend the CMIA to allow disclosure of information between county and state correctional facilities to ensure the continuity of health care for inmates being transferred. SB 1443 is pending in the Senate Appropriations Committee. 6)Prior legislation . AB 1297 (John A. Pérez), Chapter 341, Statutes of 2013, facilitated the sharing of information between coroners and organ procurement organizations regarding cases in which an anatomical gift may be available from a person whose demise is imminent and that person's body will be subject to a death investigation by the coroner. 7)Double-referral . This bill was double-referred to the Assembly Health Committee where it was heard on April 12, AB 2119 Page 8 2016, and passed on a 19-0 vote. REGISTERED SUPPORT / OPPOSITION: Support County of Santa Clara (sponsor) California State Coroners' Association Urban Counties of California Opposition None on file. Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200 AB 2119 Page 9