BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1443 Hearing Date: April 12, 2016
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|Author: |Galgiani |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Incarcerated Persons: Health Records
HISTORY
Source: California Correctional Healthcare Services
Prior Legislation: None known
Support: Unknown
Opposition:None known
PURPOSE
The purpose of this legislation is to permit the sharing of
medical, mental health and dental information between
correctional facilities, as specified.
Under existing law a provider of health care, health care
service plan, or contractor is prohibited 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:
A provider of health care, a health care service plan, or
a contractor must disclose medical information if the
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disclosure is compelled by any of the following:
o By a court order.
o By a board, commission, or administrative agency for
purposes of adjudication pursuant to its lawful authority.
o 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.
o 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.
o 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.
o By a search warrant lawfully issued to a governmental
law enforcement agency.
o By the patient or the patient's representative pursuant
to Chapter 1 (commencing with Section 123100) of Part 1 of
Division 106 of the Health and Safety Code.
o By a coroner, as specified.
o When otherwise specifically required by law.
A provider of health care or a health care service plan
may disclose medical information as follows:
o The information may be disclosed to providers of health
care, health care service plans, contractors, or other
health care professionals or facilities for purposes of
diagnosis or treatment of the patient, as specified.
o The information may be disclosed to an insurer,
employer, health care service plan, hospital service plan,
employee benefit plan, governmental authority, contractor,
or other person or entity responsible for paying for health
care services rendered to the patient, to the extent
necessary to allow responsibility for payment to be
determined and payment to be made, as specified.
o The information may be disclosed to a person or entity
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that provides billing, claims management, medical data
processing, or other administrative services for providers
of health care or health care service plans or for any of
the persons or entities, as specified.
o The information may be disclosed to organized committees
and agents of professional societies or of medical staffs
of licensed hospitals, licensed health care service plans,
professional standards review organizations, independent
medical review organizations and their selected reviewers,
utilization and quality control peer review organizations
as established by Congress in Public Law 97-248 in 1982,
contractors, or persons or organizations insuring,
responsible for, or defending professional liability that a
provider may incur, if the committees, agents, health care
service plans, organizations, reviewers, contractors, or
persons are engaged in reviewing the competence or
qualifications of health care professionals or in reviewing
health care services with respect to medical necessity,
level of care, quality of care, or justification of
charges.
o The information in the possession of a provider of
health care or health care service plan may be reviewed by
a private or public body responsible for licensing or
accrediting the provider of health care or health care
service plan, as specified.
o The information may be disclosed to the county coroner
in the course of an investigation by the coroner's, as
specified.
o The information may be disclosed to public agencies,
clinical investigators, including investigators conducting
epidemiologic studies, health care research organizations,
and accredited public or private nonprofit educational or
health care institutions for bona fide research purposes,
as specified.
o A provider of health care or health care service plan
that has created medical information as a result of
employment-related health care services to an employee
conducted at the specific prior written request and expense
of the employer may disclose to the employee's employer
that part of the information that:
§ Is relevant in a lawsuit, arbitration,
grievance, or other claim or challenge to which the
employer and the employee are parties and in which the
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patient has placed in issue his or her medical
history, mental or physical condition, or treatment,
provided that information may only be used or
disclosed in connection with that proceeding.
§ Describes functional limitations of the
patient that may entitle the patient to leave from
work for medical reasons or limit the patient's
fitness to perform his or her present employment,
provided that no statement of medical cause is
included in the information disclosed.
o Unless the provider of health care or a health care
service plan is notified in writing of an agreement by the
sponsor, insurer, or administrator to the contrary, the
information may be disclosed to a sponsor, insurer, or
administrator of a group or individual insured or uninsured
plan or policy that the patient seeks coverage by or
benefits from, if the information was created by the
provider of health care or health care service plan as the
result of services conducted at the specific prior written
request and expense of the sponsor, insurer, or
administrator for the purpose of evaluating the application
for coverage or benefits.
o The information may be disclosed to a health care
service plan by providers of health care that contract with
the health care service plan and may be transferred among
providers of health care that contract with the health care
service plan, for the purpose of administering the health
care service plan, as specified.
o This part does not prevent the disclosure by a provider
of health care or a health care service plan to an
insurance institution, agent, or support organization,
subject to Article 6.6 (commencing with Section 791) of
Chapter 1 of Part 2 of Division 1 of the Insurance Code, of
medical information if the insurance institution, agent, or
support organization has complied with all of the specified
requirements for obtaining the information.
o The information relevant to the patient's condition,
care, and treatment provided may be disclosed to a probate
court investigator in the course of an investigation
required or authorized in a conservatorship proceeding
under the Guardianship-Conservatorship Law as defined in
Section 1400 of the Probate Code, or to a probate court
investigator, probation officer, or domestic relations
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investigator engaged in determining the need for an initial
guardianship or continuation of an existing guardianship.
o The information may be disclosed to an organ procurement
organization or a tissue bank processing the tissue of a
decedent for transplantation into the body of another
person, but only with respect to the donating decedent, for
the purpose of aiding the transplant. For the purpose of
this paragraph, "tissue bank" and "tissue" have the same
meanings as defined in Section 1635 of the Health and
Safety Code.
o The information may be disclosed when the disclosure is
otherwise specifically authorized by law, including, but
not limited to, the voluntary reporting, either directly or
indirectly, to the federal Food and Drug Administration of
adverse events related to drug products or medical device
problems, or to disclosures made pursuant to subdivisions
(b) and (c) of Section 11167 of the Penal Code by a person
making a report pursuant to Sections 11165.9 and 11166 of
the Penal Code, provided that those disclosures concern a
report made by that person.
o Basic information, including the patient's name, city of
residence, age, sex, and general condition, may be
disclosed to a state-recognized or federally recognized
disaster relief organization for the purpose of responding
to disaster welfare inquiries.
o The information may be disclosed to a third party for
purposes of encoding, encrypting, or otherwise anonymizing
data, as specified.
o For purposes of disease management programs and services
as defined in Section 1399.901 of the Health and Safety
Code, information may be disclosed, as specified.
o The information may be disclosed, as permitted by state
and federal law or regulation, to a local health department
for the purpose of preventing or controlling disease,
injury, or disability, including, but not limited to, the
reporting of disease, injury, vital events, including, but
not limited to, birth or death, and the conduct of public
health surveillance, public health investigations, and
public health interventions, as authorized or required by
state or federal law or regulation.
o The information may be disclosed, consistent with
applicable law and standards of ethical conduct, by a
psychotherapist, as defined in Section 1010 of the Evidence
Code, if the psychotherapist, in good faith, believes the
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disclosure is necessary to prevent or lessen a serious and
imminent threat to the health or safety of a reasonably
foreseeable victim or victims, and the disclosure is made
to a person or persons reasonably able to prevent or lessen
the threat, including the target of the threat.
o The information may be disclosed as described in Section
56.103.
o The information may be disclosed to an employee welfare
benefit plan, to the extent that the employee welfare
benefit plan provides medical care, and may also be
disclosed to an entity contracting with the employee
welfare benefit plan for billing, claims management,
medical data processing, or other administrative services
related to the provision of medical care to persons
enrolled in the employee welfare benefit plan for health
care coverage, if all of the following conditions are met:
§ The disclosure is for the purpose of
determining eligibility, coordinating benefits, or
allowing the employee welfare benefit plan or the
contracting entity to advocate on the behalf of a
patient or enrollee with a provider, a health care
service plan, or a state or federal regulatory agency.
§ The request for the information is accompanied
by a written authorization for the release of the
information submitted in a manner consistent with
subdivision (a) and Section 56.11.
§ The disclosure is authorized by and made in a
manner consistent with the Health Insurance
Portability and Accountability Act of 1996 (Public Law
104-191).
§ Any information disclosed is not further used
or disclosed by the recipient in any way that would
directly or indirectly violate this part or other
specified restrictions.
o Information may be disclosed pursuant to subdivision (a)
of Section 15633.5 of the Welfare and Institutions Code by
a person required to make a report pursuant to Section
15630 of the Welfare and Institutions Code, provided that
the disclosure under subdivision (a) of Section 15633.5
concerns a report made by that person, as specified.
(Civil Code § 56.10.)
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Existing law states that person sentenced to imprisonment in a
state prison or to imprisonment pursuant to subdivision (h) of
Section 1170 may during that period of confinement be deprived
of such rights, and only such rights, as is reasonably related
to legitimate penological interests, as specified. (Penal Code
§ 2600.)
Existing law states that a person described in section 2600 must
have the following civil rights:
Except as provided in Section 2225 of the Civil Code, to
inherit, own, sell, or convey real or personal property,
including all written and artistic material produced or
created by the person during the period of imprisonment, as
specified.
To correspond, confidentially, with any member of the
State Bar or holder of public office, provided that the
prison authorities may open and inspect incoming mail to
search for contraband.
To purchase, receive, and read any and all newspapers,
periodicals, and books accepted for distribution by the
United States Post Office.
o Pursuant to this section, prison authorities
may exclude any of the following matter:
§ Obscene publications or writings,
and mail containing information concerning where,
how, or from whom this matter may be obtained.
§ Any matter of a character tending to
incite murder, arson, riot, violent racism, or
any other form of violence.
§ Any matter concerning gambling or a
lottery.
o Nothing in this section it to be construed as
limiting the right of prison authorities to:
§ Open and inspect any and all
packages received by an inmate.
§ Establish reasonable restrictions as
to the number of newspapers, magazines, and books
that the inmate may have in his or her cell or
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elsewhere in the prison at one time.
To initiate civil actions, subject to a three dollar ($3)
filing fee to be collected by the Department of Corrections
and Rehabilitation (CDCR), in addition to any other filing
fee authorized by law, and subject to Title 3a (commencing
with Section 391) of the Code of Civil Procedure.
To marry.
To create a power of appointment.
To make a will.
To receive all benefits provided for in Sections 3370 and
3371 of the Labor Code and in Section 5069.
(Penal Code § 2601.)
Under existing law, except as otherwise provided, an inmate who
is released on parole or postrelease supervision must be
returned to the county that was the last legal residence of the
inmate prior to his or her incarceration, as specified. Existing
law provides that, notwithstanding this provision, an inmate may
be returned to another county if that would be in the best
interests of the public (Penal Code § 3003(a)-(c).)
Existing law states in making its decision about an inmate who
participated in a joint venture program, the paroling authority
is required to give serious consideration to releasing him or
her to the county where the joint venture program employer is
located if that employer states to the paroling authority that
he or she intends to employ the inmate upon release. (Penal
Code § 3003(d).)
Under existing law the following information, if available, must
be released by CDCR to local law enforcement agencies regarding
a paroled inmate or inmate placed on postrelease community
supervision, who is released in their jurisdictions:
Last, first, and middle names.
Birth date.
Sex, race, height, weight, and hair and eye color.
Date of parole or placement on postrelease community
supervision and discharge.
Registration status, if the inmate is required to register
as a result of a controlled substance, sex, or arson
offense.
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California Criminal Information Number, FBI number, social
security number, and driver's license number.
County of commitment.
A description of scars, marks, and tattoos on the inmate.
Offense or offenses for which the inmate was convicted
that resulted in parole or postrelease community supervision
in this instance.
Address, including all of the following information:
o Street name and number. Post office box
numbers are not acceptable for purposes of this
subparagraph.
o City and ZIP Code.
o Date that the address provided pursuant to
this subparagraph was proposed to be effective.
Contact officer and unit, including all of the following
information:
o Name and telephone number of each contact
officer.
o Contact unit type of each contact officer such
as units responsible for parole, registration, or
county probation.
o A digitized image of the photograph and at
least a single digit fingerprint of the parolee.
o A geographic coordinate for the inmate's
residence location for use with a Geographical
Information System (GIS) or comparable computer
program.
(Penal Code § 3003(e)(1).)
Existing law states that unless the information is unavailable,
CDCR is required to electronically transmit to a county agency,
the inmate's tuberculosis status, specific medical, mental
health, and outpatient clinic needs, and any medical concerns or
disabilities for the county to consider as the offender
transitions onto postrelease community supervision, for the
purpose of identifying the medical and mental health needs of
the individual, as specified(Penal Code § 3003(e)(2)-(5).)
Existing law states that notwithstanding any other law, an
inmate who is released on parole cannot be returned to a
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location within 35 miles of the actual residence of a victim of,
or a witness to, a violent felony as defined in paragraphs (1)
to (7), inclusive, and paragraph (16) of subdivision (c) of
Section 667.5 or a felony in which the defendant inflicts great
bodily injury on a person other than an accomplice that has been
charged and proved as provided for in Section 12022.53, 12022.7,
or 12022.9, if the victim or witness has requested additional
distance in the placement of the inmate on parole, and if the
Board of Parole Hearings or CDCR finds that there is a need to
protect the life, safety, or well-being of a victim or witness.
(Penal Code § 3003(f).)
Existing law provides that notwithstanding any other law, an
inmate who is released on parole for a violation of Section 288
or 288.5 whom the CDCR determines poses a high risk to the
public shall not be placed or reside, for the duration of his or
her parole, within one-half mile of a public or private school
including any or all of kindergarten and grades 1 to 12,
inclusive. (Penal Code § 3003(g).)
Existing law provides that notwithstanding any other law,, an
inmate who is released on parole or postrelease community
supervision for a stalking offense shall not be returned to a
location within 35 miles of the victim's actual residence or
place of employment if the victim or witness has requested
additional distance in the placement of the inmate on parole or
postrelease community supervision, and if the Board of Parole
Hearings or the CDCR, or the supervising county agency, as
applicable, finds that there is a need to protect the life,
safety, or well-being of the victim. If an inmate who is
released on postrelease community supervision cannot be placed
in his or her county of last legal residence in compliance with
this subdivision, the supervising county agency may transfer the
inmate to another county upon approval of the receiving county.
(Penal Code § 3003(h).)
Existing law provides that an inmate may be paroled to another
state pursuant to any other law, as specified. (Penal Code §
3003(j).)
Under existing law CDCR is the agency primarily responsible for,
and shall have control over, the program, resources, and staff
implementing the Law Enforcement Automated Data System (LEADS)
in conformance with subdivision (e). County agencies supervising
inmates released to postrelease community supervision pursuant
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to Title 2.05 (commencing with Section 3450) shall provide any
information requested by the department to ensure the
availability of accurate information regarding inmates released
from state prison. This information may include the issuance of
warrants, revocations, or the termination of postrelease
community supervision. On or before August 1, 2011, county
agencies designated to supervise inmates released to postrelease
community supervision shall notify the department that the
county agencies have been designated as the local entity
responsible for providing that supervision. The Department of
Justice (DOJ) is the agency primarily responsible for the proper
release of information under LEADS that relates to fingerprint
cards. CDCR has to submit to the DOJ data to be included in the
supervised release file of the California Law Enforcement
Telecommunications System (CLETS) so that law enforcement can be
advised through CLETS of all persons on postrelease community
supervision and the county agency designated to provide
supervision. The data required by this subdivision shall be
provided via electronic transfer. (Penal Code § 3003(k).)
This bill would authorize the disclosure of information between
a county correctional facility, a county medical facility, a
state correctional facility, or a state hospital to ensure the
continuity of health care of an inmate being transferred among
those facilities. The bill would also authorize the disclosure
and exchange of information by a county correctional facility, a
county medical facility, a state correctional facility, or a
state hospital to a contracted licensed mental health provider
performing a forensic evaluation of an offender or a mentally
disordered offender (MDO) or a sexually violent predator (SVP)
screening of an offender.
This bill expressly states that an inmate's civil rights
include, subject to the bill's provisions relating to the
disclosure of medical information described above, all privacy
rights legally applicable to inmates.
This bill would require, when jurisdiction of an inmate is
transferred from or among CDCR, the State Department of State
Hospitals, and county agencies caring for inmates, those
agencies to disclose, by electronic transmission when possible,
medical, dental, and mental health information regarding each
transferred or released inmate, as provided by the bill's
provisions.
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This bill would authorize the sharing of an inmate's health
information, as necessary for continuity of care, when an inmate
is transferred between or among a state prison, a fire camp
operated by CDCR, a state hospital, a county correctional
facility, or a county medical facility providing medical or
mental health services to offenders, as specified.
This bill would require, when an inmate is being released by
CDCR to postrelease community supervision, or is being retained
in custody at a county or local jail, or county officials will
otherwise have responsibility for the inmate's ongoing health
care needs, the department to disclose the inmate's health
information, as necessary for continuity of care, to the
applicable county agency, as specified.
This bill would provide that the medical, dental, and mental
health information to be disclosed among CDCR, the State
Department of State Hospitals, and county agencies is limited to
the type and amount of information that is determined by
licensed medical providers, as a matter of general policy or on
a case-by-case basis, to be necessary for continuity of care or
to perform a mandatory offender screening, such as an MDO
screening or an SVP screening. The bill would authorize that
information to be disclosed either as already maintained in
existing medical records or as compiled for the purpose of the
disclosure, and would authorize that information to include,
among other things, medical history, physical information, and
public health information.
This bill would require all transmissions made pursuant to these
provisions to comply with specified provisions of state and
federal law, including, among others, the Confidentiality of
Medical Information Act.
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
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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
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
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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
1.Need for This Legislation
According to the author:
Currently, both state and county correctional facilities
receive medically and mentally unstable patients where the
patient's medical and/or mental health history at the time
of transfer is not provided. Not only does this impact
offender safety, but it is costly as well, as many times
treatment/diagnostic testing must be duplicated at the
receiving facility. Although there are a variety of
statutory schemes that discuss the transfer of patient
records in the public, none apply in a correctional
setting.
This bill would address the current lack of statutory
authority that would provide for the transfer of medical
and mental health records for offenders who transition in
and out of various state and local jurisdictions. This
bill would amend current law to require that an offender's
pertinent medical and mental health records and copies that
are reasonably available be transferred from the sending
practitioner to the receiving practitioner within 24 hours
whenever the offender transitions between state/county
correctional facilities. The bill would allow for the
disclosure of medical or mental health information when an
offender is being transferred between state/county
correctional facilities, whether it be on a temporary or
permanent basis.
2.CDCR Medical Care: Federal Receivership
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The California Correctional Healthcare Services (CCHCS) (federal
receivership) was established as a result of a class action
lawsuit (Plata v. Brown) brought against the State of California
over the quality of medical care in the state's 34 adult
prisons. In its ruling, the federal court found that the care
was in violation of the Eighth Amendment of the U.S.
Constitution which prohibits cruel and unusual punishment. The
state settled the lawsuit and entered into a stipulated
settlement in 2002, agreeing to a range of remedies that would
bring prison medical care in line with constitutional standards.
The state failed to comply with the stipulated settlement and on
February 14, 2006, the federal court appointed a receiver to
manage medical care operations in the prison system. The current
receiver was appointed in January of 2008. The receivership
continues to be unprecedented in size and scope nationwide.
CCHCS is the sponsor of this legislation and states in support:
Currently, both state and county correctional facilities at
times receive medically and mentally unstable patients
where the patient's medical and/or mental health history at
the time of transfer is not included. Not only does this
impact offender safety, but it is costly as well, since
many times it may result in duplicate treatment/diagnostic
testing by the receiving facility. Although current law
offers a variety of statutory schemes discussing the
transfer of patient records for the public, none apply in a
correctional setting.
This bill would address the current lack of statutory
authority that would provide for the transfer of medical
and mental health records for offenders who transition in
and out of various state and local jurisdictions. This bill
would amend current law to require that an offender's
pertinent medical and mental health records and copies that
are reasonably available be transferred from the sending
practitioner to the receiving practitioner whenever the
offender transitions between state/county correctional
facilities. The bill would also authorize the disclosure of
this medical and/or mental health information under state
and federal health care privacy guidelines.
3.Effect of this Legislation
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This legislation is a double referral to the Judiciary
Committee, which will presumably examine the issues related to
the privacy of medical information. From a public safety
perspective, improving the sharing of medial information will
almost certainly help to provide the inmate population with much
needed continuity of care.
Developing collaborative, intersectoral approaches to
address the high burden of disease among people involved in
the justice system is both a public health and public
safety imperative. People with serious mental illness are
significantly overrepresented in correctional systems. An
estimated 14.5 percent of men and 31 percent of women in
jails have a serious mental illness (SMI) such as
schizophrenia, major depression, and bipolar disorder,
compared to 5 percent of the general population. . . A lack
of health background information on the people involved in
the criminal justice system diminishes the likelihood that
jails will deliver properly targeted, often urgently needed
care.
(Bridging the Gap Improving the Health of Justice-Involved
People through Information Technology, February 2015, VERA
Institute of Justice, http://www.vera.org/sites
/default/files/resources/downloads/samhsa-justice-health-inf
ormation-technology.pdf.)
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