BILL ANALYSIS
AB 2028
Page 1
Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 2028 (Hernandez) - As Amended: March 10, 2010
SUBJECT : Confidentiality of medical information: disclosure.
SUMMARY : Authorizes a health care provider or a health care
service plan to disclose information relevant to the incident of
child abuse or neglect to an investigator or a licensing agency
that is investigating the known or suspected case of child
abuse. Permits a health care provider to disclose information
about a patient's participation in outpatient psychotherapy,
relevant to the incident of child abuse or neglect, without
requiring a written signed request from the entity requesting
the information.
EXISTING LAW :
1)Prohibits under the Confidentiality of Medical Information Act
(CMIA) a health care provider, health care service plan, or
health care contractor from disclosing a person's medical
information without first obtaining that person's
authorization, except as specified.
2)Requires under CMIA, a health care provider, health care
service plan, or health care contractor (collectively "health
plans") to disclose medical information if required by a
subpoena, search warrant, or other court order. Permits a
provider or health plan to disclose information in other
specified circumstances, including for purposes of diagnosis
or treatment or as necessary to provide billing or other
administrative services to the provider or plan. Prohibits a
provider or health plan from disclosing a person's medical
information for marketing purposes, or any other purpose not
necessary to provide health care services to the patient,
without express authorization from that person.
3)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
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target of the threat.
4)Prohibits a health care provider or health plan 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 or health plan 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,
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.
5)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.
6)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.
7)Exempts from the above requirements the disclosure of
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information when the patient's psychotherapist believes, in
good faith, that the disclosure is necessary to prevent or
lessen a serious and imminent threat to the health or safety
of a reasonably foreseeable victim, without requiring a
written signed request from the entity requesting the
information.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the sponsor, the
California Association of Marriage and Family Therapists
(CAMFT), this bill clarifies in CMIA that psychotherapists and
other health care providers who report suspected child abuse
or neglect are allowed to provide information related to the
incident of child abuse or neglect to those who are
investigating the report. CAMFT believes that this exception
deserves specific mention to make it abundantly clear that a
mandated reporter of child abuse is permitted, without prior
authorization of the patient, to cooperate with the
investigator of the reported, suspected, or known child abuse.
Additionally, this bill clarifies that the written notification
requirements of CMIA (described in existing law in paragraphs
4) and 5) above) do not apply to disclosures made by mandated
reporters to child abuse investigators, which will allow
investigators to obtain information in a timelier manner. The
sponsor states that this bill is similar to AB 681 (Hernandez)
Chapter 464, Statutes of 2009, which provides a similar
exception when the patient's psychotherapist believes, in good
faith, that the disclosure is necessary to prevent or lessen a
serious and imminent threat to the health or safety of a
reasonably foreseeable victim.
2)CMIA . CMIA regulates under state law whether and when medical
information can be disclosed. CMIA prohibits, with certain
exceptions, a health care provider or health plan 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 that either require or permit
a health care provider or health plan to disclose medical
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information under specified circumstances. For example,
health care providers and health plans 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.
AB 1178 (Hernandez), Chapter 506, Statutes of 2007, amended CMIA
to permit 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 threat. This bill will create a
similar exception by permitting a health plan to disclose
information relevant to the incident of child abuse or neglect
to an investigator or a licensing agency that is investigating
the known or suspected case of child abuse.
In an effort to provide greater protection to mental health
information, the Legislature passed AB 416 (Machado), Chapter
527 of Statutes of 1999, which requires individuals requesting
outpatient mental health records to demonstrate the need for
the request, and to commit to handling such records with care.
AB 416 prohibits health plans 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 plan a written request, signed by the person
requesting the information that includes specified
information, such as the intended use of the information, and
the length of time the information will be kept before being
destroyed.
Last year, the Legislature passed AB 681 (Hernandez) which
creates an exception to the AB 416 requirements when the
patient's psychotherapist believes, in good faith, that 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. AB 2028 would create a similar exception
for information relevant to the incident of child abuse or
neglect that can be provided to an investigator or a licensing
agency that is investigating the case.
3)INVESTIGATING CHILD ABUSE AND NEGLECT . In California, each
county is responsible for administering its own child welfare
program, which is monitored and supported by the California
Department of Social Services. California is one of 11 states
that operate using a state-administered/county-implemented
model of governance. State law requires each county child
welfare services division that deals with abused and neglected
children to manage an Emergency Response (ER) Hotline for
reporting suspected abuse, and investigates reports of child
abuse. When a mandated reporter or concerned individual calls
the ER Hotline, it is first screened by an ER Hotline social
worker to determine if there is enough information to warrant
an in-person investigation from an ER social worker. After
assessing the risk to the child, the ER Hotline worker must
decide if the referral should be closed or if an ER social
worker should conduct an in-person investigation immediately
or within 10 days. If the Hotline worker determines that an
in-person investigation is necessary, an ER social worker
interviews the parent or caretaker and the child individually
or as part of a multidisciplinary team, which may include law
enforcement or public health officials.
4)MANDATED REPORTERS . The California Child Abuse Reporting Law
identifies 38 categories of individuals who are legally
required to report known or suspected child abuse. In
addition to health care providers such as physicians and
nurses, mandated reporters include psychotherapists, workers
in county welfare, police, and probation departments, clinical
social workers, clergy, school teachers and counselors, and
employees of day care facilities. California law defines
specific categories of child abuse and neglect to guide
mandated reporters about what to report, which are as follows:
physical abuse; sexual abuse; general neglect; severe neglect;
and, emotional abuse.
5)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.
AB 2028
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REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Marriage and Family Therapists
(sponsor)
California Probation Parole and Correctional Association
California State Sheriffs' Association
Opposition
None on file.
Analysis Prepared by : Martin Radosevich / HEALTH / (916)
319-2097