BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 2119 (Chu) Version: June 1, 2016 Hearing Date: June 28, 2016 Fiscal: Yes Urgency: No NR SUBJECT Medical information: disclosure: medical examiners and forensic pathologists DESCRIPTION This bill would authorize licensed physicians who perform official autopsies on behalf of a county coroner's office or the medical examiner's office to receive medical information for specified purposes, including: identifying the deceased; notifying next of kin; and investigating cause of death. This bill would additionally prohibit a coroner, medical examiner, or forensic pathologist from disclosing the underlying medical records of the deceased without a court order. BACKGROUND While many types of medical doctors are capable of performing autopsies, most state or local government laws mandate that an appointed forensic pathologist do the work. These appointees are called medical examiners and have an official position in the county medical examiner system. However, not all counties use the medical examiner system; some counties use coroners and a coroner's system. Many coroners are qualified pathologists with years of experience, and some are physicians in unrelated fields. However, depending on the county laws, a coroner may require no medical qualifications at all in order to perform his or her duty. In California, county coroners are authorized to access a deceased person's medical information for the purpose of AB 2119 (Chu) Page 2 of ? identifying the decedent, locating next of kin, or investigating cause of death, among other reasons. This bill, sponsored by the Santa Clara Board of Supervisors, would authorize medical examiners and forensic pathologists working with a county coroner's office to access the medical records of deceased persons as well. CHANGES TO EXISTING LAW Existing law prohibits, under the federal Health Insurance Portability and Accountability Act (HIPAA), a covered entity (health plan, 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.) Existing law 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. (Civ. Code Sec. 56 et seq.) Existing law 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. (Civ. Code Sec. 56.05(g).) Existing law 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 AB 2119 (Chu) Page 3 of ? publicly available information, reveals the individual's identity. (Civ. Code Sec. 56.05(g).) Existing law 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. (Civ. Code Sec. 56.05(h).) Existing law 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. (Civ. Code Sec. 56.36.) Existing law 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, imminent deaths that may involve organ or tissue donation, or when otherwise authorized by the decedent's representative. (Civ. Code Sec. 56.10(b)(8).) Existing law 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 (Civ. Code Secs. 56.10(b)(8), 56.10(c)(6).) AB 2119 (Chu) Page 4 of ? This bill would require 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. This bill would authorize a provider of health care or a health care service 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. This bill would prohibit 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. This bill would specify 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. This bill would strike a provision of law that prohibits the State Department of Developmental Services, the physician and surgeon in charge of the client, or the professional in charge of the facility or his or her designee, from releasing any notes, summaries, transcripts, tapes, or records of conversations between the resident and health professional personnel of the hospital relating to the personal life of the resident that is not related to the diagnosis and treatment of the resident's physical condition. This bill would make legislative findings necessary to limit public access to records shared with a medical examiner or AB 2119 (Chu) Page 5 of ? forensic pathologist under this bill. This bill would make other technical, non-substantive changes to statute. COMMENT 1.Stated need for the bill According to the author: Currently, coroners, medical examiners and forensic pathologists do not have access to mental health records unless authorization is provided by next-of-kin or a court order. The current law can create an untimely delay in certification of death, which can have an impact to distant relatives or the state in closing the decedent's affairs and may delay the loved ones from receiving needed financial funds through life insurance. AB 2119 would 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. Further, the measure prohibits disclosure of the medical or mental health records obtained during a death investigation to any third parties. 2.Ensures that medical professionals working with the county coroner's office have access to relevant information Existing law requires that the medical information of the deceased shall be disclosed, upon request, to a county coroner for the purposes of identifying the decedent, locating next of kin, or investigating the cause of death, and that medical information may be disclosed to a county coroner if requested for any other purpose. (Civ. Code Sec. 56.10 (b)(8) and (c)(6).) Given that most counties hire medical professionals (e.g., medical examiners and forensic pathologists) to assist the county coroner's office in investigating causes of death, determining the identity of the victim, and locating next of AB 2119 (Chu) Page 6 of ? kin, these medical professionals need access to the same information as coroners. This bill would provide the necessary clarification to ensure that employees of the county coroner's office have timely access to the information required to fulfill the function of their job. This could arguably reduce costs to the court because actions compelling the release of this information will not be as frequent. 3.Protects privacy of deceased by limiting disclosure of confidential medical information The Confidentiality of Medical Information Act (CMIA) protects patient confidentiality and provides that medical information may not generally be disclosed by providers of health care, health care service plans, or contractors without the patient's written authorization. However, medical information may be shared with other health care professionals or facilities for the purposes of diagnosis or treatment of the patient, and coroners are expressly authorized to receive medical information. (Civ. Code Sec. 56 et seq.) At the same time, the California Public Records Act (CPRA) requires the disclosure of information collected and maintained by public agencies, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254 et seq.) Thus, when a county official (e.g, a coroner) uses a person's medical information in the course of his or her official function, a tension exists between which information of the decedent must be protected and which information of the decedent must be available to the public. Recognizing that disclosure of private medical information may impair the privacy rights of a decedent, this bill would prohibit a coroner, medical examiner, or forensic pathologist from disclosing an "underlying medical record" to a third party without a court order. Staff notes that there does not appear to be a clear distinction between an "underlying medical record" and "medical information" and the "medical record." Insofar that there is a difference between the terms, a disclosure could arguably result in the disclosure of personal medical information that would compromise the deceased's privacy. If the intent of the author is to protect the privacy of the deceased, this bill should be amended to protect all medical information unrelated to death certificates the coroner receives. AB 2119 (Chu) Page 7 of ? In addition, existing law (under the Lanterman Petris Short Act and the Lanterman Developmental Disabilities Services Act) prohibits the disclosure of "any notes, summaries, transcripts, tapes, or records of conversations between the resident and health professional personnel of the hospital relating to the personal life of the resident that is not related to the diagnosis and treatment of the resident's physical condition" and further requires that any information disclosed "shall remain confidential and shall be sealed and shall not be made part of the public record." (Welf. & Inst. Code Secs. 4514(m), 5328.8.) While the proponents of this bill argue that mental health records are necessary to perform the functions of the coroner's office, this bill would delete the above language which would arguably allow for the overly broad disclosure of recordings of therapy sessions, notes, and other information which may not be related to the cause of death or any other functions of the coroner. In justifying the need for this provision, the Santa Clara County Board of Supervisors, sponsor, writes: Medical diagnoses and mental health issues affect one another and are more complex than once realized. The lack of access to mental health records limits the ability of a coroner or medical examiner to consider all potential causes of death. Access to mental health records can help contribute to the understanding of how the effects of mental health illness relates to cause of death[.] The following amendments would address both of the above concerns by: (1) replacing "underlying medical record" with "medical information" throughout the bill; and (2) allowing a coroner, medical examiner, and forensic pathologist to request a patient's medical record from the state hospital, instead of any information related to services provided at the hospital. Author's amendments Replace "underlying medical record" with "information contained in the medical record" throughout the bill Authorize the release of a state hospital patient's medical record to a coroner, medical examiner, or pathologist, upon request. Unless otherwise authorized by law, prohibit the AB 2119 (Chu) Page 8 of ? disclosure of any medical information of the deceased absent court order. Support : California State Coroners' Association; Urban Counties of California Opposition : None Known HISTORY Source : County of Santa Clara Related Pending 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. Prior Legislation : None Known Prior Vote : Assembly Floor (Ayes 78, Noes 0) Assembly Privacy and Consumer Protection Committee (Ayes 11, Noes 0) Assembly Health Committee (Ayes 19, Noes 0) **************