BILL ANALYSIS
AB 681
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 681 (Hernandez) - As Introduced: February 26, 2009
SUBJECT : Confidentiality of medical information:
psychotherapy.
SUMMARY : Permits a psychotherapist to disclose medical
information if the psychotherapist, in good faith, believes the
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, without having a
signed request by the entity requesting the information that
must be furnished to the patient and the health care provider,
health care service plan, or contractor that meets specified
requirements.
EXISTING LAW :
1)Prohibits, under the Confidentiality of Medical Information
Act (CMIA), a health care provider, health care service plan,
or contractor from releasing medical information to persons or
entities authorized by law to receive that information if the
requested information specifically relates to the patient's
participation in outpatient treatment with a psychotherapist,
unless the person or entity requesting that information
submits to the patient and to the health care provider, health
care service plan, or contractor a written request, signed by
the person requesting the information, that includes all of
the following:
a) The specific information relating to a patient's
participation in outpatient treatment with a
psychotherapist being requested and its specific intended
use or uses;
b) The length of time during which the information will be
kept before being destroyed or disposed of;
c) A statement that the information will not be used for
any purpose other than its intended use; and,
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d) A statement that the person or entity requesting the
information will destroy the information and all copies in
the person's or entity's possession or control, will cause
it to be destroyed, or will return the information and all
copies of it before or immediately after the length of time
specified has expired.
2)Requires the person or entity requesting the information to
submit a copy of the required written request to the patient
within 30 days of receipt of the information requested, unless
the patient has signed a written waiver in the form of a
letter signed and submitted by the patient to the health care
provider or health care service plan waiving notification.
3)Exempts from the above requirements the disclosure or use of
medical information by a law enforcement agency or a
regulatory agency when required for an investigation of
unlawful activity or for licensing, certification, or
regulatory purposes, unless the disclosure is otherwise
prohibited by law.
4)Permits a psychotherapist to disclose medical information, if
the psychotherapist, in good faith, believes the 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.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE . This bill is sponsored by the California Association
of Marriage and Family Therapists (CAMFT) to allow
psychotherapists to disclose medical information in a more
timely fashion when a patient presents a serious or imminent
threat to health and safety. The author points out that the
CMIA permits otherwise confidential medical information to be
disclosed by a psychotherapist if the psychotherapist in good
faith believes the disclosure is necessary to prevent or
lessen a serious and imminent threat to the health or safety
of a reasonably foreseeable victim or victims. However,
another provision of CMIA prohibits a health care provider
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from releasing information that specifically relates to a
patient's participation in outpatient treatment with a
psychotherapist unless the requester submits a specified
written request for the information to the patient and
provider. This bill would resolve a conflict between these
two statutes by permitting a psychotherapist to release
medical information without the entity requesting the
information being required to provide a written request that
meets specified requirements and that is furnished to the
patient. CAMFT argues an exception to the request and
notification requirement is warranted where quick action is
required when a disclosure can be made to prevent or lessen a
serious imminent threat to the health or safety of a
reasonably foreseeable victim or victims
2)CMIA . CMIA regulates under state law whether and when
medical information can be disclosed. CMIA prohibits (with
exceptions) a health care provider, health plan, or contractor
(a medical group, pharmaceutical benefits manager, or medical
service organization) from disclosing medical information
regarding a patient of the health care provider or an enrollee
of the health plan without first obtaining an authorization
from the patient, his or her legal representative, or other
specified persons. There are exceptions from this prohibition
under CMIA that either require or permit a health care
provider or health plan to disclose medical information under
specified circumstances. For example, health care providers,
health plans, and contractors are required to disclose medical
information if the disclosure is compelled by a court order,
through a subpoena, by a search warrant issued to a law
enforcement agency, or by a patient seeking access to their
own medical records. CMIA permits health care providers and
health plans to disclose medical information under specified
circumstances, such as for purposes of diagnosis and treatment
of the patient, to allow responsibility for payment to be
determined and payment to be made, for billing, claims
management, and medical data processing.
Relevant to this bill, CMIA permits a psychotherapist to
disclose medical information when he or she believes the
disclosure of medical information 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
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threat. The rapid disclosure by the psychotherapist in such a
case could be delayed by the requirements of AB 416 (Machado),
Chapter 527 of Statutes of 1999, legislation to accomplish the
goal of providing greater protection to mental health
information by requiring individuals requesting outpatient
mental health records to demonstrate the need for the request,
and to commit to handling such records with care. AB 416, as
described in 1) through 3) in existing law above, prohibits a
health care provider, health care service plan, or contractor
from releasing medical information to persons or entities
authorized by law to receive that information if the requested
information specifically relates to the patient's
participation in outpatient treatment with a psychotherapist,
unless the person or entity requesting that information
submits to the patient and to the health care provider, health
care service plan, or contractor a written request, signed by
the person requesting the information that includes specific
information, such as the intended use of the information, and
the length of time the information will be kept before being
destroyed.
3)PREVIOUS LEGISLATION .
a) SB 598 (Machado), Chapter 463, Statutes of 2004 exempts
disclosures made for purposes of diagnosis or treatment
from the AB 416 requirements established in current law.
b) AB 1178 (Hernandez), Chapter 506, Statutes of 2008
authorizes a psychotherapist to disclose medical
information, if the psychotherapist, in good faith,
believes the 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.
4)DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to
the Assembly Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 681
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California Association of Marriage and Family Therapists
(sponsor)
American Association for Marriage and Family Therapy, California
Division
American Federation of State, County and Municipal Employees,
AFL-CIO
California Psychiatric Association
California Society for Clinical Social Work
Opposition
None on file.
Analysis Prepared by : Scott Bain / HEALTH / (916) 319-2097