BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2028|
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THIRD READING
Bill No: AB 2028
Author: Hernandez (D)
Amended: 6/22/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 06/15/10
AYES: Corbett, Harman, Hancock, Leno, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 74-0, 5/6/10 (Consent) - See last page for
vote
SUBJECT : Confidentiality of medical information:
disclosure
SOURCE : California Association of Marriage and Family
Therapists
DIGEST : This bill amends the Confidentiality of Medical
Information Act 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 exempts 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
also makes a technical correction to last year's AB 681
(Hernandez), Chapter 464, Statutes of 2009).
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ANALYSIS : 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, the Confidentiality of Medical Information
Act (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).)
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 provides 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 specifies that entities
covered by the federal Health Insurance Portability and
Accountability Act (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.
Existing law prohibits a health care provider, health care
service plan, or contractor, from disclosing medical
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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:
1.The specific information relating to a patient's
participation in outpatient treatment with a
psychotherapist being requested and its specific intended
use or uses;
2.The length of time during which the information will be
kept before being destroyed;
3.A statement that the information will not be used for any
purpose other than its intended use; and
4.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
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).)
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This bill provides 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.
Prior Legislation
AB 681 (Hernandez), Chapter 464, Statutes of 2009, which
passed the Senate on 8/31/09 (36-0).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/2/10)
California Association of Marriage and Family Therapists
(source)
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
ARGUMENTS IN SUPPORT : According to the author's office:
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
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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 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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De
Leon, DeVore, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,
Garrick, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,
Bonnie Lowenthal, Ma, Miller, Monning, Nava, Nestande,
Niello, Nielsen, Norby, V. Manuel Perez, Portantino,
Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio,
Audra Strickland, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, John A. Perez
NO VOTE RECORDED: Bass, Block, De La Torre, Gilmore,
Mendoza
RJG:nl 8/3/10 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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