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
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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
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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).)
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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
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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
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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.
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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
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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)
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