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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