BILL ANALYSIS
AB 681
Page 1
Date of Hearing: May 5, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 681 (Hernandez) - As Introduced: February 26, 2009
PROPOSED CONSENT
SUBJECT : CONFIDENTIAL Medical Information: PSYCHOTHERAPY
KEY ISSUE : Should a provider of health care, health care
service plan, OR contractor be ALLOWED TO DISCLOSE INFORMATION
ABOUT A PATIENT's PARTICIPATION in outpatient psychotherapy,
WITHOUT REQUIRING A SIGNED REQUEST BY THE ENTITY REQUESTING THE
INFORMATION THAT IS FURNISHED TO BOTH PATIENT AND PROVIDER, WHEN
the PATIENT's PSYCHOTHERAPIST believes that the patient poses a
serious danger to reasonably foreseeable victims, and THAT the
disclosure is necessary to prevent the threatened danger?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law prohibits providers of health care, health care
service plans, and contractors from releasing medical
information to persons authorized by law to receive that
information if the information specifically relates to a
patient's participation in outpatient treatment with a
psychotherapist, unless the requester of the information submits
a specified written request for the information to the patient
and to the provider of health care, health care service plan, or
contractor. However, existing law exempts from those provisions
specified disclosures, including those that are made for the
purpose of diagnosis or treatment of a patient. Consistent with
the Tarasoff decision, existing law also permits
psychotherapists to disclose medical information when they have
a good faith belief that such 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 persons reasonably able to prevent or
lessen the threat, including the target of the threat. This
bill would, similar to the general medical information
exemption, exempt from the outpatient psychotherapy provisions
those disclosures that are made to prevent or lessen a serious
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and imminent threat to the health or safety of a reasonably
foreseeable victim or victims, so that such disclosures can be
made to a requesting entity without requiring that entity to
furnish a signed request to the patient and the provider.
SUMMARY : Allows providers to disclose information about a
patient's participation in outpatient psychotherapy to an entity
requesting that information without requiring a written request
by that entity under certain circumstances. Specifically, this
bill provides that, notwithstanding provisions of the
Confidentiality of Medical Information Act (CMIA), a provider of
health care, health care service plan, or contractor may
disclose information about a patient's participation in
outpatient psychotherapy to a requesting entity, without
requiring that entity to provide a written and detailed request
to the patient and the provider, if the patient's therapist, in
good faith, believes that the disclosure is necessary to prevent
or lessen a serious and imminent threat to the health or safety
of reasonably foreseeable victim or victims; and if the
disclosure is made to a person or persons reasonably able to
prevent or lessen the threat, including the target of the
threat.
EXISTING LAW :
1)Generally prohibits a health care provider, service plan, or
contractor from disclosing medical information about a
patient, enrollee, or subscriber without first obtaining
authorization from the patient, subject to certain mandatory
and permissive exceptions. (Civil Code section 56.10(a).)
2)Provides, notwithstanding Civil Code section 56.10(a), that a
health care provider, service plan, or contractor shall
disclose medical information if the disclosure is compelled by
law, including any of the following:
a) A court order, subpoena, or search warrant;
b) The order of a board, commission, arbitration panel, or
administrative agency for purposes of adjudication pursuant
to its lawful authority;
c) Request of the patient or the patient's representative,
pursuant to Health & Safety Code section 123100 et seq.
d) Request of a coroner under specified circumstances.
(Civil Code section 56.10(b).)
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3)Provides, notwithstanding Civil Code section 56.10(a), that a
health care provider, service plan, or contractor may disclose
medical information in a limited manner for specified
purposes, including but not limited to the following:
a) For purposes of diagnosis and treatment;
b) As necessary for billing and payment;
c) For purposes of medical research, medical review,
quality control, or facility accreditation;
d) For purposes of organ procurement for transplantation;
and
e) For various emergency and public health purposes.
f) Provides generally, however, that the amount of
information disclosed must be limited to what is essential
for achieving the purpose. (Civil Code section 56.10(c).)
4)Provides, notwithstanding Civil Code section 56.10(a), that a
psychotherapist may disclose medical information about a
patient if the therapist, 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 that the disclosure is made
to a person or persons reasonably able to prevent or lessen
the threat, including the target of the threat. (Civil Code
section 56.10(c)(19).)
5)Provides that providers of health care, health care service
plans, or contractors may not release medical information to
persons or entities who request such information and are
authorized to receive that information under Civil Code
section 56.10(c) (see above), except when the disclosure is
for the purposes of diagnosis or treatment (Civil Code section
56.10(c)(1)), if the requested information specifically
relates to the patient's participation in outpatient treatment
with a psychotherapist, unless the requesting party submits to
both the patient and the information holder a written request
that contains 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 (which may be
extended if the requesting party notifies the provider,
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plan, or contractor of the extension, and includes the
specific reason for the extension, the intended use or uses
of the information during the extended time, and the
expected date of the destruction of the information);
c) A statement that the information will not be used for
any purpose other than its intended use;
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 in paragraph (2) has expired. (Civil Code
section 56.104(a).)
6)Requires the person or entity requesting the information to
submit a copy of the written request described above to the
patient within 30 days of receipt of the information
requested, unless the patient has signed a written waiver of
notification, in the form of a letter signed and submitted by
the patient to the provider of health care or health care
service plan waiving notification. This notice is not
required under the following circumstances:
a) If the request is being made by law enforcement in order
to investigate unlawful activity, or for regulatory
purposes; or
b) If the disclosure is for the purposes of diagnosis or
treatment. (Civil Code section 56.104(b), 56.104(d).)
7)Protects the confidentiality of a psychiatric patient's
information and records except under specified circumstances,
including when the psychotherapist reasonably believes that
the patient presents a serious danger of violence to a
reasonably foreseeable victim or victims. Permits the
therapist, in such cases, to release information to the
threatened person or persons and to law enforcement, to such
an extent that the therapist determines is necessary to
protect the threatened person or persons. (Civil Code section
43.92.)
8)Provides, under California case law, that a psychotherapist
has a duty not only to his or her patients, but to any person
or persons threatened by the patient, and holds that the
general public policy favoring the privileged nature of the
patient-psychotherapist communications must yield to the
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extent that disclosure is necessary to avert danger to others.
(Tarasoff v. Regents of the University of California (1976)
17 Cal.3d 425.)
9)Provides, as to admissibility of evidence, an exemption to the
patient-psychotherapist privilege if the psychotherapist has
reasonable cause to believe that the patient is in such a
mental or emotional state as to be dangerous to himself or to
the person or property of another and the disclosure is
necessary to prevent the threatened disclosure. (Evidence
Code section 1024.)
10)Imposes, under federal HIPAA regulations, certain
restrictions on the disclosure of medical information and
provides further that any entity covered under HIPAA must
provide patients or subscribers with certain information about
its privacy policies, including a description of how the
entity uses and discloses patient information. (42 U.S.C.
1320d et seq.; 45 C.F.R. 164.500 et seq.)
11)Provides that, while HIPAA privacy rules preempt contrary
state laws, states may impose more stringent laws relating to
the privacy of individual health information. (45 C.F.R.
160.203.)
12)Provides, under federal HIPAA regulations, that a patient's
authorization is required for use or disclosure of a patient's
psychotherapy notes, except where required by law or permitted
under 45 C.F.R. 164.512. (45 C.F.R. 164.508(b)(2), 1614.512.)
13)Provides, under federal HIPAA regulations, that a covered
entity may disclose or use protected health information if the
entity has a good faith belief that the use or disclosure is
necessary to prevent or lessen a serious and imminent threat
to the health or safety of a person or the public and the
disclosure is made to a person or persons reasonably able to
prevent or lessen the threat, including the target of the
threat. (45 C.F.R. 164.512(j).)
14)Provides, under federal HIPAA regulations, that for certain
permitted disclosures, such as disclosures about an individual
reasonably believed to be a victim of abuse, the entity must
"promptly inform" the individual that such a disclosure has
been made, unless it would place the individual at serious
risk of harm or if the entity would have to inform a personal
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representative of the individual that the entity reasonably
believes to be the abuser. (45 C.F.R. 164.512(c)(2).)
15)Under federal HIPAA regulations, does not require that if
health information is disclosed to prevent or lessen a serious
and imminent threat (as described above), any notice be given
to the individual whose information was disclosed. (45 C.F.R.
164.512.)
COMMENTS : This bill is sponsored by the California Association
of Marriage and Family Therapists (CAMFT). According to the
author, the purpose of this bill is to create an exemption to
the California Confidentiality of Medical Information Act (CMIA)
that would allow providers of health care, health care service
plans, or contractors to disclose confidential information about
a patient's participation in outpatient psychotherapy, without
requiring the requesting party to provide a written request to
the provider and the patient containing specific details about
their intended use of the information, if the patient's
therapist reasonably believes that the patient poses 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.
The author states that the bill will 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, on the one hand, the CMIA
permits otherwise confidential medical information to be
disclosed by a psychotherapist if the therapist in good faith
believes the disclosure is necessary to prevent or lessen a
serious and imminent threat to the healthy of safety of a
reasonably foreseeable victim or victims (Civil Code section
43.92), but on the other hand prevents a psychotherapist from
disclosing information to a requesting entity unless the entity
provides a detailed written request to the patient and provider.
This bill would resolve the conflict between these two
statutes, providing an exception to the request and notification
requirements under the same circumstances as the exception to
the disclosure requirements. CAMFT argues that an exception to
the request and notification requirement is warranted where
quick action is required, when a disclosure is made to prevent
or lessen a serious and imminent threat.
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Background: The Tarasoff Decision : In Tarasoff v. University of
California (1976) 17 Cal.3d 425, the California Supreme Court
found that a psychologist has a duty not only to his patient,
but to any person threatened by the patient. The court reached
its conclusion in part by finding a "duty to control" in the
"special relationship" inherent in the patient-therapist
relationship. For example, the court refused to find that the
campus police had a duty because, unlike the therapist, the
police had no "special relationship" with the patient. The
court also supported its reasoning by pointing out that
California Evidence Code Section 1024 (first enacted in 1965)
permitted a therapist to testify about patient communications
where it was necessary to prevent a threatened danger. Four
years later, the court clarified that the patient's threat
cannot be a generalized threat, but must be a specific threat to
an identifiable person or persons. (Thompson v County of
Alameda (1980) 27 Cal 3d 741 (refusing to impose a duty where a
juvenile defendant made a generalized threat to kill an
unidentified child in his neighborhood.))
Current Law Allows Disclosures To Prevent or Lessen a Serious
and Imminent Threat : The Tarasoff principle was codified in
California Civil Code, which appears to limit Tarasoff liability
to instances in which "the patient has communicated to the
psychotherapist a serious threat of physical violence against a
reasonably identifiable victim or victims." (Civil Code Section
43.92.) More recent court opinions have narrowed the reach of
this provision even further, by specifying that a "serious"
threat means "a serious risk of grave bodily injury to another."
(Calderon v. Glick (2005) 131 Cal.App.4th 224; Ewing v.
Goldstein (2004) 120 Cal.App.4th 807.) Since current law
provides an exception to confidentiality requirements so that
disclosures can be made to prevent serious threats to reasonably
foreseeable victims, it appears reasonable to provide this same
exception to the request and notification requirements.
Federal HIPAA Regulations Do Not Require Notice to the Patient
for Similar Disclosures . Under federal HIPAA regulations, when
certain permitted disclosures are made, such as disclosures
about an individual reasonably believed to be a victim of abuse,
the entity must "promptly inform" the individual that such a
disclosure has been made, unless it would place the individual
at serious risk of harm or if the entity would have to inform a
personal representative of the individual whom the entity
reasonably believes to be the abuser. (45 C.F.R.
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164.512(c)(2).) Federal HIPAA regulations do not require notice
to be given to an individual whose health information was
disclosed in order to prevent or lessen a serious and imminent
threat (as described above). Exempting disclosures about
psychotherapy from the request and notification requirements
would therefore appear to be consistent with federal privacy
law.
Prior Related Legislation : AB 733 (Nation, Chapter 136, Stats.
of 2006) clarified the existing law by specifying that a
therapist may discharge his duty to warn the intended victim of
a communicated threat by making reasonable efforts to notify
both the potential victim and law enforcement.
AB 1178 (Hernandez, Chapter 506, Stats. of 2007) amended Civil
Code section 56.10, consistent with the Tarasoff decision, to
allow psychotherapists to disclose medical information about a
patient if the therapist, in good faith, believes the disclosure
is necessary to prevent or lessen a serious and imminent threat
to the health or safety of a person or persons; and that the
disclosure is made to a person or persons reasonably able to
prevent or lessen the threat, including the target of the
threat.
REGISTERED SUPPORT / OPPOSITION :
Support
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 : Drew Liebert and Rachel Anderson / JUD.
/ (916) 319-2334