BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2028 (Hernandez)
As Amended June 3, 2010
Hearing Date: June 15, 2010
Fiscal: Yes
Urgency: No
SK:jd
SUBJECT
Confidentiality of Medical Information: Disclosure: Mandated
Reporters
DESCRIPTION
This bill would amend the Confidentiality of Medical Information
Act (CMIA) to expressly authorize mandated reporters of child
abuse and neglect and elder and dependent adult abuse to
subsequently disclose requested information to the agency
investigating the report of abuse or neglect. This bill would
exempt information disclosed by a psychotherapist who is
required to make a report from existing law's requirement that
the entity requesting the information meet certain request and
notification requirements. This bill would also make a
technical correction to last year's AB 681 (Hernandez, Ch. 464,
Stats. 2009).
BACKGROUND
Under existing law, individuals in certain professions are
required to report child abuse and neglect or elder and
dependent adult abuse to the appropriate agencies. For example,
the Child Abuse and Neglect Reporting Act defines "mandated
reporters" to include, among others, teachers, social workers,
probation officers, peace officers, firefighters, physicians,
psychiatrists, psychologists, marriage and family counselors,
and medical examiners. Those mandated reporters must report
suspected child abuse or neglect to a police or sheriff's
department whenever the reporter has knowledge of or observes a
child whom the reporter knows or reasonably suspects has been
the victim of child abuse or neglect. Under existing law, these
(more)
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mandated reporters may disclose relevant information to agencies
that are investigating the reported child abuse or neglect.
Similarly, under the Elder Abuse and Dependent Adult Civil
Protection Act, certain individuals who care for an elder or
dependent adult, such as administrators, licensed staff, and
supervisors of facilities that care for elder or dependent
adults, health practitioners, and local law enforcement are
mandated reporters. Mandated reporters who are physicians,
nurses, or psychotherapists do not need to make a report in
certain situations. And, mandated reporters are authorized to
disclose relevant information to agencies investigating the
reported abuse.
Under CMIA, health care providers, including psychotherapists,
are prohibited from disclosing a patient's medical information
unless a mandatory or permissive exception applies. This bill,
sponsored by the California Association of Marriage and Family
Therapists, would make clear that mandated reporters of child
abuse and neglect and elder and dependent adult abuse could
subsequently disclose requested information to the agency
investigating the report of abuse or neglect without violating
CMIA.
CHANGES TO EXISTING LAW
1.Existing law requires individuals in certain professions to
report child abuse and neglect or elder and dependent adult
abuse to the appropriate agencies. Existing law defines
"mandated reporters" for purposes of these requirements and
authorizes mandated reporters to disclose relevant information
to agencies that are investigating the reported abuse or
neglect. (Child Abuse and Neglect Reporting Act (Pen. Code
Sec. 11164 et seq.); Elder Abuse and Dependent Adult Civil
Protection Act (Wel. & Inst. Code Sec. 15630 et seq.).)
Existing law , CMIA, prohibits a health care provider, health
care service plan, or contractor from disclosing medical
information regarding a patient, enrollee, or subscriber
without first obtaining an authorization, except as specified.
(Civ. Code Sec. 56.10(a).)
Existing law requires a provider of health care, health care
service plan, or contractor to disclose medical information if
the disclosure is specifically required by law. (Civ. Code
Sec. 56.10(b)(9).)
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Existing law permits a provider of health care or service plan
to disclose medical information 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. (Civ. Code Sec. 56.10(c)(14).)
This bill would provide that information may be disclosed by an
individual mandated to report child abuse or neglect or elder
or dependent adult abuse to an agency investigating that
reported abuse. This bill would specify that entities covered
by the federal Health Insurance Portability and Accountability
Act (HIPAA) (Pub. Law 104-191) must comply with the
requirements of that law if the disclosure is not for the
purpose of public health surveillance, investigation or
intervention or reporting an injury or death.
2.Existing law prohibits a health care provider, health care
service plan, or contractor, from disclosing medical
information regarding a patient's participation in outpatient
treatment with a psychotherapist to persons or entities
authorized by law to receive that information, except when the
disclosure is for the purposes of diagnosis or treatment,
unless the person or entity requesting the information submits
to the health care provider, health care service plan, or
contractor a signed written request 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;
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 or will
return the information and all copies of it when the
specified timeframe has expired. (Civ. Code Sec.
56.104(a).)
Existing law requires the person or entity requesting the
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information to submit a copy of the written request to the
patient within 30 days of receipt of the information
requested, unless the patient has waived his or her right to a
copy. (Civ. Code Sec. 56.104(b).)
Existing law provides that these notice requirements do not
apply to the disclosure or use of medical information by a law
enforcement agency when required for an investigation of
unlawful activity, unless the disclosure is otherwise
prohibited by law. (Civ. Code Sec. 56.104(d).)
Existing law also provides that these notice requirements do
not apply to information requested by law enforcement or by
the target of the threat subsequent to an authorized
disclosure by a psychotherapist, as specified, in which the
additional information is clearly necessary to prevent the
serious and imminent threat disclosed. (Civ. Code Sec.
56.104(e)(2).)
This bill would provide that these notice requirements also do
not apply to information disclosed by a psychotherapist to an
agency investigating a report of child abuse or neglect or
elder or dependent adult abuse.
This bill also specifies that the information exempted under
Section 56.104(e)(2) must be requested from a psychotherapist,
not from other entities subject to the section such as a
health care provider or health care service plan.
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COMMENT
1. Stated need for the bill
The author writes:
Currently, there is not a specific exception listed for
disclosures that are made by individuals making child abuse
reports pursuant to Penal Code Section 11167 (b) or (c).
CAMFT believes that this important exception to
confidentiality deserves specific mention to make it
abundantly clear that a mandated reporter of child abuse is
permitted, without the prior written authorization of the
patient, to cooperate with the investigator of the reported
suspected or known child abuse. Additionally, the bill makes
it clear that the requirements of Section 56.104 do not apply
to disclosures made by mandated reporters to child abuse
investigators. Last year, AB 681 (Hernandez) created a
similar exception for disclosure made in a Tarasoff
"dangerous patient" situation. . . . [AB 2028 makes] it clear
in the Confidentiality of Medical Information Act (CMIA, Civil
Code Section 56.10) that psychotherapists and other health
care providers who report suspected child abuse or neglect are
allowed to provide information to those who are investigating
the report. The bill would make a conforming exception to
Civil Code Section 56.104 so that the information could be
provided in a more timely manner to investigators.
The California Association of Marriage and Family Therapists
(CAMFT), sponsor, writes in support that the bill "will help to
have mandated reporters of child abuse and elder and dependent
adult abuse feel more comfortable in disclosing information to
those who are responsible for investigating reports of child
abuse and neglect and elder and dependent adult abuse. In other
words, this legislation will benefit children, elders, and
dependent adults who have been abused."
2. Disclosure of information to agencies investigating alleged
abuse
This bill would specifically authorize, under CMIA, the
disclosure of information to an agency investigating an incident
of child abuse or neglect or elder or dependent adult abuse when
the individual making that disclosure is a mandated reporter.
As described above, individuals in certain professions are
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required by law to report child abuse and neglect or elder and
dependent adult abuse to the appropriate agencies. These
mandated reporters may include health care providers, including
psychotherapists, subject to CMIA. Under CMIA, a provider of
health care, health care service plan, or contractor must
disclose medical information if the disclosure is specifically
required by law. However, the law is less clear with respect to
subsequent disclosures made to agencies investigating the
reported abuse. In this instance, the policy question posed by
this bill is whether an individual who is required by law to
report abuse should also be authorized under CMIA to disclose
information to agencies investigating that abuse. The author
and his sponsor assert that the answer to this question is yes,
and argue that by specifically authorizing the disclosure of
information in that case, this bill would address the concern
that CMIA restricts the ability of health care providers to
subsequently disclose information to investigators looking into
reported abuse.
The author has agreed to a technical amendment to make clear
that the bill is authorizing a mandated reporter to disclose
information to an investigating agency about abuse that the
individual reported.
Author's amendments:
Amend (c)(14): On page 7, line 19 after "11166" insert
"provided that those disclosures concern a report made by such
person"
Amend (c)(22): On page 9, line 21, after "Code" insert
"provided that the disclosure under Section 15633.5(a)
concerns a report made by such person"
The most recent amendments to this bill also contain language
suggested by the California Office of Health Information and
Integrity, Health and Human Services Agency in order to ensure
the bill is consistent with HIPAA requirements. As a result,
the bill specifies that health care providers who are covered by
HIPAA must comply with the requirements of that law if the
disclosure is not for the purpose of public health surveillance,
investigation or intervention, or reporting an injury or death.
3. Bill would permit disclosures without a written request when
information is disclosed to an agency investigating abuse
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Under existing law, an entity requesting outpatient
psychotherapy records is required to complete a written signed
request for the records which must include specific information
relating to the patient's treatment and the intended use of the
information. The entity must also send a copy of that request
to the patient within 30 days of receipt of the requested
information, unless the patient has waived his or her right to a
copy. Those requirements are intended to compel entities
requesting outpatient psychotherapy records to demonstrate the
need for those records and commit to handling the information
with care.
Last year, AB 681 was enacted to provide an exception to this
written request requirement where the information is requested
by law enforcement or by the target of the threat subsequent to
a disclosure by a psychotherapist of a serious and imminent
threat to the health or safety of a reasonably foreseeable
victim. The additional information requested by law enforcement
or the target must be clearly necessary to prevent that serious
and imminent threat. This bill would likewise provide that the
written request requirements also do not apply to information
disclosed by a psychotherapist to an agency investigating a
report of child abuse or neglect or elder or dependent adult
abuse. The effect of this provision is that the investigating
agency would not need to file a written request for the
information or send the patient a copy of that request.
AB 681 was also sponsored by CAMFT, which argued at the time
that the notice requirement had the potential to endanger a
psychotherapist who has disclosed that his or her patient has
made a serious and imminent threat of violence because the
patient will learn of the disclosure and the psychotherapist's
role in that disclosure. In addition, the notification might
potentially further endanger the victim or impede an
investigation, which is timely because the threat of violence is
both serious and imminent.
Similarly, the rationale for this bill's creation of an
exception to the notice requirement is that the patient may be
the source of the reported abuse or neglect and alerting the
patient to the disclosure may further endanger the child, elder,
or dependent adult or, potentially, the psychotherapist. The
bill's supporters also argue that notification may impede an
investigation. In addition, both the Child Abuse and Neglect
Reporting Act and the Elder Abuse and Dependent Adult Civil
Protection Act provide that the identity of any person who makes
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a report pursuant to either law shall be confidential and may
only be released to the investigating and enforcement agencies.
(Pen. Code Sec. 11167(d); Wel. & Inst. Code Sec. 15633.5(b).)
Existing law's requirement that the written request contain
specific information relating to the patient's treatment may
breach this statutorily mandated confidentiality if the
psychotherapist treating the patient made a mandated report.
In order to ensure that the exception to the written request
requirement only applies in instances where the agency
investigating the reported abuse, rather than some other entity,
is requesting information from the psychotherapist, the author
has agreed to amend the bill as follows:
Author's amendments:
On page 11, line 20, after "56.10" insert "and requested by an
agency investigating the abuse reported pursuant to those
sections"
4. Technical correction to last year's AB 681
This bill would also make a technical correction to last year's
AB 681. That bill created an exception to Civil Code Section
56.104's requirements that an entity requesting outpatient
psychotherapy records complete a written signed request for the
information. Specifically, AB 681 provided that these
requirements do not apply to information requested by law
enforcement or by the target of the threat subsequent to an
authorized disclosure by a psychotherapist, as specified, in
which the additional information is clearly necessary to prevent
the serious and imminent threat disclosed.
However, Section 56.104 applies also to health care providers
and health care service plans, raising the concern that the
information disclosures exempted by AB 681 under 56.104 may
inadvertently be construed to be broader than intended. As a
result, this bill makes a technical correction specifying that
the information must be requested from a psychotherapist, not
from other entities subject to the section such as a health care
provider or health care service plan.
5. Technical correction needed
The following technical correction is needed: on page 11, line
19 strike "the" and insert "that"
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Support : American Association for Marriage and Family
Therapy-CA Division; California Chiropractic Association;
California Medical Association; Los Angeles County District
Attorney's Office; Osteopathic Physicians and Surgeons of
California
Opposition : None Known
HISTORY
Source : California Association of Marriage and Family
Therapists
Related Pending Legislation : None Known
Prior Legislation : See Comments 3 and 4.
Prior Vote :
Assembly Health Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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