BILL ANALYSIS
AB 2028
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2028 (Hernandez) - As Amended: March 10, 2010
As Proposed To Be Amended
SUBJECT : disclosure of Medical Information: MAndated Reporters
KEY ISSUES :
1)Should existing law be amended to clarify that mandated
reporters of child, elder, and dependent adult abuse be
permitted to thereafter disclose requested information to An
agency investigating the abuse?
2)Should agencies investigating reports of child, elder, or
dependent abuse be exempted from existing request and notice
requriements, given that such notices might compromise an
investigation and breach the reporter's statutorily required
confidentiality?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Under California's Confidential Medical Information Act (CMIA) a
therapist, like any other medical provider, is barred from
disclosing a patient's medical information unless some mandatory
or permissive exception to the prohibition applies. In
addition, if the medical information pertains to outpatient
psychotherapy, the entity requesting the information from the
therapist must make a written request that contains specified
information and send a copy of the written request to the
patient within 30 days of receiving the information. This bill,
as currently in print, would clarify that mandated reporters of
child abuse and neglect may also subsequently disclose requested
information to the agency investigating the report. Although
provisions in the state's existing child abuse reporting act
already authorize mandated reporters (including therapists) to
disclose information to an agency investigating the report, the
sponsor believes that this bill will clarify the relationship
between the relevant provisions of the CMIA and the reporting
act. In addition, this bill would exempt an entity
AB 2028
Page 2
investigating the reported abuse from existing request and
notice requirements. The author and sponsor believe that
requiring a written request and notice are not appropriate in
child abuse and neglect cases, since the requesting entities may
not always have the specific information required for the
written request and the notice requirement would endanger the
child and impede the investigation by potentially notifying the
alleged abuser. For reasons discussed in the analysis, the
author and sponsor have agreed to extend the provisions of this
bill to mandated reporters of elder and dependent adult abuse
(who are similarly authorized by existing law to disclose
information to requesting entities) and make corresponding
technical amendments. The bill summary below reflects these
proposed amendments.
SUMMARY : Clarifies the authority of mandated reporters of
certain kinds of abuse to disclose information to the agencies
investigating that abuse and relieves the investigating agency
of certain request and notice requirements, as specified.
Specifically, this bill:
1)Permits mandated reporters of child abuse or neglect or elder
and dependent adult abuse to disclose information to an agency
investigating the report of abuse, notwithstanding the general
prohibition against disclosing a patient's medical information
without the patient's consent.
2)Exempts an agency investigating reports of child, elder, or
dependent adult abuse or neglect from an existing law that
requires an entity requesting medical information related to
outpatient psychotherapy to submit a written request that
contains specified information and to send a copy of the
written request to the patient within 30 days of receipt of
the requested information.
EXISTING LAW :
1)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 the above prohibition, that a health
care provider, service plan, or contractor shall disclose
AB 2028
Page 3
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,
as specified.
d) Request of a coroner under specified circumstances.
(Civil Code section 56.10(b).)
3)Provides that a health care provider, service plan, or
contractor may disclose medical information in a limited
manner for specified reasons, including, but not limited to,
for purposes of diagnosis and treatment, as necessary for
billing and payment, and as otherwise specifically authorized
by law. (Civil Code section 56.10(c).)
4)Prohibits a health care provider, health care service plan, or
contractor from releasing a patient's medical information to
authorized persons or entities who request such information if
the requested information specifically relates to outpatient
psychotherapy treatment, unless the requesting party submits
to the provider a written request, with specified content and
assurances, and then submits a copy of the written request to
the patient within 30 days after receipt of the requested
information. (Civil Code Section 56.104 (a)-(b).)
5)Specifies that the above written request and notice
requirements do not apply to the disclosure of information by
a law enforcement agency or regulatory agency when required
for an investigation of unlawful activity or for licensing,
certification, or regulatory purposes. (Civil Code Section
56.104 (d).)
6)Designates persons engaged in certain professions as "mandated
reporters" who must report any reasonable suspicion of child
abuse or neglect to the appropriate agencies. Mandated
reporters include, among others, teachers, child care workers,
physicians and other medical professionals, therapists, and
other professions that may entail frequent and regular contact
with children and parents. (Penal Code Section 11164 et seq.)
AB 2028
Page 4
7)Authorizes mandated reporters of child abuse and neglect to
disclose relevant information to agencies that are
investigating the reported incident of child abuse or neglect.
Specifies that the identity of the persons reporting the
child abuse or neglect shall be confidential and shared only
to the agencies receiving or investigating the reports.
(Penal Code Section 11167 (b)-(d).)
8)Authorizes a mandated reporter of elder and dependent adult to
abuse to disclose relevant information to agencies that are
investigating reported incidents of abuse. Specifies that the
identity of the person reporting the abuse shall be
confidential and shared only to the agencies involved in
investigating the abuse, as specified. (Welfare &
Institutions Code Section 15633.5 (a)-(c).)
COMMENTS : As currently in print this bill, which is sponsored
by the California Association of Marriage and Family Therapists
(CAMFT), would clarify that therapists who have reported child
abuse and neglect, as required by law, may also disclose
information to the agency that is investigating the report of
child abuse or neglect. In addition, under the bill in print,
an entity that seeks information from a therapist while
investigating a report of child abuse or neglect is exempted
from existing requirements that it notify the patient within 30
days after receipt of the requested information. For reasons
discussed below, the author has agreed to take amendments in
this Committee that will extend these provisions to mandated
reporters of elder and dependent adult abuse as well. The
provisions authorizing disclosure are declaratory of existing
law; the provisions that exempt investigating agencies from the
written request and notification provisions represent a
substantive change to existing law.
Background : The California Confidential Medical Information Act
(CMIA) generally prohibits a health care provider or health care
plan from disclosing a patient's medical information without the
prior written consent of the patient. However, the CMIA has
been amended several times to create both mandatory and
permissive disclosures as exceptions to the general rule of
non-disclosure. Mandatory disclosures generally require the
provider or plan to disclose information if the information is
demanded by a subpoena, search warrant, or other court order.
(Civil Code Section 56.10 (b).) There are also a number of
permissive disclosures that authorize but do not require the
AB 2028
Page 5
provider or plan to disclose the information at the request of
some person or entity that is legally authorized to make such a
request. (Id. Section 56.10 (c) (1)-(21).) For example, a
provider or plan may disclose information without the patient's
prior written consent if the information is needed for purposes
of diagnosis or treatment or is necessary for standard billing
and payment purposes. A provider or plan may also disclose
certain information in response to other limited requests,
including requests for purposes of medical review or licensing,
medical research, or responding to public health crises or other
emergencies. Finally, existing law permits a fairly broad
permissive disclosure where disclosure is "otherwise
specifically authorized by law." (Id. Section 56.10 (c) (14).)
Release of Information Concerning Outpatient Psychotherapy .
Although the CMIA provisions discussed above apply to all
medical information - including information relating to mental
health or psychiatric treatment - the CMIA nonetheless creates
an additional requirement for the release of medical information
relating to outpatient treatment with a psychotherapist.
Because of the potentially more sensitive nature of this
information, existing law permits disclosure of information
relating to outpatient psychotherapy treatment only if the
entity requesting the information submits to the health care
provider or therapist a written request that specifically
describes how the information will be used and gives assurances
that the information will not be used for any other purposes and
will be destroyed once it has been used for the stated purpose.
In addition, the requesting entity must send a copy of this
written request to the patient within 30 days of receipt of the
requested information. (Id. Section 56.104.) Last year's AB
681 (Chapter 464, Stats. of 2009) amended this same provision to
specify that these request and notice provisions do not apply if
the information is requested by a law enforcement agency
investigating a disclosure that was made to prevent a serious
and imminent threat to the health or safety of a reasonably
identifiable victim or victims. (Id. Section 56.104 (e).) The
rationale for this exception to the written request requirement
reflected a concern that information might be needed immediately
in order to prevent an imminent threat; and the exception to the
notification requirement reflected a concern that in cases where
the patient was the source of the threat, the notification might
impede an investigation or further endanger the potential victim
or victims.
AB 2028
Page 6
Disclosure and Notice Requirements Relating to Reports of Child
Abuse and Neglect . This bill, as currently in print, would make
two changes to the existing CMIA statute.
First, this measure would clarify that a therapist or medical
provider that reports child abuse or neglect, as required by
law, will be authorized (but not required) to thereafter
disclose information to the agency that is investigating the
report. Arguably, therapist and other "mandated reporters" of
child abuse already have this authority under existing law.
Under the Child Abuse and Neglect Reporting Act, therapists -
like other mandated reporters - are required by law to report
any reasonable suspicion of child abuse or neglect to the proper
authorities. Moreover, once the report is made, the existing
provisions of the reporting act also authorize them to disclose
information to an agency investigating those initial reports of
child abuse or neglect. Because the CMIA already permits
disclosure of medical information if the disclosure "is
otherwise specifically authorized by law," it appears that
therapists may already possess the authority to disclose this
information without violating the CMIA. However, the sponsor
contends that many therapists assume CMIA still restricts their
ability to disclose medical information, and therefore the
sponsor seeks express authorization within CMIA, rather than
relying upon the general provision that permits disclosure where
it is otherwise authorized by law. This bill will make it clear
that CMIA does not trump the authority granted in the reporting
act.
Second, because therapists typically provide outpatient
psychotherapy services, as this term is defined by law, this
bill would also provide that the investigating agency requesting
the information on the reported abuse would not be required to
submit a prior written request to the provider or notify the
patient 30 days after receipt of the requested information. The
rationale for this exception is similar to the exception created
by last year's AB 681 (Chapter 464, Stats. of 2009), relating to
serious and imminent threats of harm to a third party. Because
child abuse and neglect are ongoing, the threat to the child is
always "imminent." In addition, the "patient" that must be
notified in the case of child abuse or neglect would either be
the child or the person allegedly committing the abuse or
neglect. If the patient is the child, then as a practical
matter the notice would go to the parent or guardian, who
potentially may be the one committing the abuse of neglect. The
AB 2028
Page 7
author and sponsor contend that notifying the person allegedly
or potentially committing the abuse or neglect could impede the
investigation and quite possibly put the child at greater risk.
This provision of the bill is fully consistent with similar
provisions in existing law. As noted, last year's AB 681
eliminated the written request and notice provisions relating to
threats of serious or imminent harm. In addition, existing law
already provides that the request and notice provisions do not
apply in situations in which a law enforcement agency or
regulatory agency is investigating unlawful activity. (Civil
Code Section 56.104 (d).) Although Child Protective Services or
related social services agencies investigating reports of child
abuse and neglect do not typically qualify as either "law
enforcement" or "regulatory" agencies within the meaning of
these provisions, they are nonetheless investigating unlawful
activity and arguably warrant the same exception for
substantially the same reasons. Indeed, given that the victims
of the unlawful activity are children, the rationale for
exempting these investigating agencies from the request and
notice provisions may potentially be even stronger.
Confidentiality of Mandated Reporters. An additional reason
for not requiring the requesting entity to send a copy of the
written request to the patient follows from the existing
provisions in the reporting act that require an investigating
agency to keep the identity of the mandated reporter
confidential to all but the investigating and enforcement
agencies. (Penal Code Section 11167 (c).) Because the written
request to the provider must contain specific information
relating to the patient's participation in outpatient treatment,
providing a copy of the request to the patient would effectively
breach this statutorily required confidentiality.
ARGUMENTS IN SUPPORT : According to the sponsors, the California
Association of Marriage and Family Therapists (CAMFT), this bill
will clarify that a psychotherapist or other health care
provider who reports suspected child abuse and neglect will be
permitted to disclose relevant information to the agencies that
investigates those reports of abuse and neglect. Although
therapists may arguably already have this authority, the
sponsors believe that it is necessary to make it clear that
therapists not only have an obligation to report suspicions of
child abuse and neglect, but also the authorization to cooperate
with investigators without fear of violating the CMIA. In
addition, CAMFT believes that eliminating the request and notice
AB 2028
Page 8
requirements will permit investigators to obtain information
more quickly and prevent the potentially adverse consequences of
potentially notifying the very person who may be the subject of
the investigation. Eliminating the notice requirement will help
to maintain the statutorily required confidentiality of
reporters. Finally, CAMFT argues that the provision requiring
the written request and notification was enacted to protect the
privacy of psychotherapy patients from requests made by health
plans, insurers, or other providers who generally should only be
able to obtain this information for purposes of diagnosis,
treatment, or payment and billing. This bill would not change
the requirement for those purposes; it would only apply to
information disclosed by therapist to an agency investigating a
report of abuse.
ARGUMENTS IN SUPPORT IF AMENDED : Disability Rights California
(DRC) supports this bill if amended. First, DRC points out - as
noted in the analysis above - that the reporting act in the
Penal Code already appears to authorize disclosure by mandated
reporters. DRC seeks an amendment that would similarly extend
the amendments proposed by this bill to persons reporting or
agencies investigating elder and dependent adult abuse. Just as
existing Penal Code Section 11167 already authorizes disclosures
by mandated child abuse reporters, so too does Welfare and
Institutions Code Section 15630 require persons who work with
elders and dependent adults to report abuse. If clarification
is needed that CMIA does not prohibit disclosures by mandated
child abuse reporters, DRC reasons, then clarification is also
needed for mandated reporters of elder and dependent adult
abuse. In addition, DRC objects to the amendment relating to
the request and notification requirements. Although it is not
entirely clear from its letter, it appears that DRC would
support eliminating the requirement that the requesting entity
notify the patient (since notification could potentially
increase the risk to the victim) but it does not support
eliminating the requirement that the requesting entity provide
the provider with a written request with the specified
information.
Sponsor's Response to DRC : The sponsor agrees that the
clarifying provisions should apply to both child abuse and
neglect reporters and to elder and dependent adult abuse
reporters. As to DRC's position on the request and notification
issue, the sponsor points out the bill that created the request
and notice requirement was sponsored by clinical social workers
AB 2028
Page 9
and therapists in order to prevent the use of a psychotherapy
patient's medical information by third parties, especially
health plans and insurers. This is why the bill requires not
only post-request notification to the patient that the
information has been requested, but also requires the requester
to provide specific explanations of how the information will be
used and how long it will be maintained. But the sponsor
contends that an agency requesting the information for purposes
of investigating reports of abuse will not always have the
answers to those questions. Moreover, while the original bill
reflected a desire to protect the privacy of an adult's
information from health plans and insurers, when it comes to
agencies requesting information on reports of child abuse or
neglect, the policy should weigh in favor of protection of the
child. The Committee's analysis of the intent of the prior
legislation generally supports the sponsor's analysis, and the
Committee notes that the amendment proposed by this bill only
exempts the request and notice requirement in the narrow
situation when information is requested in response to a
mandated report, to an agency investigating that report, and
only when disclosed by a therapist who has a professional and
ethical duty to the interest of the patient.
Proposed Author Amendments : Although the author and sponsor
disagree with the DRC analysis on the request and notice
provisions, they agree with DRC that if it is necessary to
clarify that mandated reporters of child abuse and neglect may
disclose information to investigating agencies, then it should
also be clarified that mandated reporters of elder and dependent
abuse are also authorized to disclose information. As noted
above, the language authorizing disclosure under Penal Code
Section 11167 (relating to child abuse and neglect) is almost
identical to the language authorizing disclosure under Welfare &
Institutions Code 15633.5 (relating to elder and dependent adult
abuse).
In addition, at the Committee's suggestion, the author and
sponsor agree that the clarifying provisions should be added as
a separate exception rather than listing them under the general
provision that authorizes disclosures where "otherwise
specifically authorized by law." (Civil Code Section
56.10(c)(14).) It creates unnecessary confusion to have general
provision - such as that in paragraph (14) - followed by a list
of specific examples of that general provision. While this is
sometimes done in the writing of statutes, as more examples are
AB 2028
Page 10
listed, the general provision becomes less meaningful. Placing
the exceptions for mandated reporters in a separate paragraph
is, of course, similarly declaratory of existing law, and one
could argue that it is similarly unnecessary. However, placing
the exceptions in a separate paragraph at least has the virtue
of not directly detracting from the force of the general
authorization in paragraph (14).
In light of these concerns, the author and sponsor have agreed
to take the following amendment in this Committee:
On page 7 line 7 delete "or to disclosures" and delete
lines 8 and 9 entirely.
On page 9 after line 23 insert:
(22) Information may be disclosed to pursuant to subdivisions
(b) and (d) of Section 11167 of the Penal Code or subdivision
(a) of Section 15633.5 of the Welfare & Institutions Code.
On page 11 delete lines 3 through 5 and insert:
(3) Information disclosed by a psychotherapist pursuant to
paragraph (22) of subdivision (c) of Section 56.10.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Marriage and Family Therapists
(sponsor)
Disability Rights California (if amended)
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334