BILL NUMBER: SB 337	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 6, 2009
	AMENDED IN SENATE  APRIL 22, 2009

INTRODUCED BY   Senator Alquist

                        FEBRUARY 25, 2009

   An act to amend Section 1280.15 of the Health and Safety Code,
relating to health facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 337, as amended, Alquist. Patient medical information:
disclosure: reporting.
   Existing law establishes provisions for the licensing and
certification of clinics, health facilities, home health agencies,
and hospices under the jurisdiction of the State Department of Public
Health. Existing law prohibits these entities from unlawfully
accessing, using, or disclosing a patient's medical information, and
authorizes the department to assess administrative penalties for
violations. Existing law also requires these entities to report
instances of unlawful access, use, or disclosure of a patient's
medical information, as prescribed, within 5 days of detecting it.
   This bill would specify that this period is 5 business days.
   This bill would require a clinic, health facility, home health
agency, or hospice to delay reporting the unlawful access, use, or
disclosure of a patient's medical information beyond 5 business days,
as specified, if a law enforcement agency or official provides a
written or oral statement that compliance with the reporting
requirements will impede the law enforcement agency's activities and
specifying the date upon which the delay shall end, as prescribed.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1280.15 of the Health and Safety Code is
amended to read:
   1280.15.  (a) A clinic, health facility, home health agency, or
hospice licensed pursuant to Section 1204, 1250, 1725, or 1745 shall
prevent unlawful or unauthorized access to, and use or disclosure of,
patients' medical information, as defined in subdivision (g) of
Section 56.05 of the Civil Code and consistent with Section 130203.
The department, after investigation, may assess an administrative
penalty for a violation of this section of up to twenty-five thousand
dollars ($25,000) per patient whose medical information was
unlawfully or without authorization accessed, used, or disclosed, and
up to seventeen thousand five hundred dollars ($17,500) per
subsequent occurrence of unlawful or unauthorized access, use, or
disclosure of that patients' medical information. For purposes of the
investigation, the department shall consider the clinic's, health
facility's, agency's, or hospice's history of compliance with this
section and other related state and federal statutes and regulations,
the extent to which the facility detected violations and took
preventative action to immediately correct and prevent past
violations from recurring, and factors outside its control that
restricted the facility's ability to comply with this section. The
department shall have full discretion to consider all factors when
determining the amount of an administrative penalty pursuant to this
section.
   (b) (1) Subject to subdivision (c), a clinic, health facility,
home health agency, or hospice to which subdivision (a) applies shall
report any unlawful or unauthorized access to, or use or disclosure
of, a patient's medical information to the department no later than
five business days after the unlawful or unauthorized access, use, or
disclosure has been detected by the clinic, health facility, home
health agency, or hospice.
   (2) Subject to subdivision (c), a clinic, health facility, home
health agency, or hospice shall also report any unlawful or
unauthorized access to, or use or disclosure of, a patient's medical
information to the affected patient or the patient's representative
at the last known address, no later than five business days after the
unlawful or unauthorized access, use, or disclosure has been
detected by the clinic, health facility, home health agency, or
hospice.
   (c) (1) A clinic, health facility, home health agency, or hospice
shall delay the reporting of any unlawful or unauthorized access to,
or use or disclosure of, a patient's medical information beyond five
business days if a law enforcement agency or official provides the
clinic, health facility, home health agency, or hospice with a
written or oral statement that compliance with the reporting
requirements of subdivision (b) would be likely to impede the law
enforcement agency's activities and specifies a date upon which the
delay shall end  , not to exceed 60 days after the written
request is made. A law enforcement agency or official may request an
extension of the 60-day delay based upon a written declaration that
there exists a bona fide, ongoing, significant criminal investigation
of serious wrongdoing, that notification of patients will undermine
the law enforcement agency's activities, and that specifies a date
upon which the delay shall end, not to exceed 60 days after the end
of the original 60-day period  .
   (2) If the statement of the law enforcement agency or official is
made orally, then the clinic, health facility, home health agency, or
hospice shall do the following:
   (A) Document the oral statement, including, but not limited to,
the identity of the law enforcement agency or official making the
oral statement and the date upon which the oral statement was made.
   (B) Limit the delay in reporting the unlawful or unauthorized
access to, or use or disclosure of, the patient's medical information
to the date specified in the oral statement, not to exceed 30
calendar days from the date that the oral statement is made, unless a
written statement that complies with the requirements of this
subdivision is received during that time.
   (3) A clinic, health facility, home health agency, or hospice
shall submit a report that is delayed pursuant to this subdivision
not later than five business days after the date designated as the
end of the delay.
   (d) If a clinic, health facility, home health agency, or hospice
to which subdivision (a) applies violates subdivision (b), the
department may assess the licensee a penalty in the amount of one
hundred dollars ($100) for each day that the unlawful or unauthorized
access, use, or disclosure is not reported, following the initial
five-day period specified in subdivision (b). However, the total
combined penalty assessed by the department under subdivision (a) and
this subdivision shall not exceed two hundred fifty thousand dollars
($250,000) per reported event.
   (e) In enforcing subdivisions (a) and (d), the department shall
take into consideration the special circumstances of small and rural
hospitals, as defined in Section 124840, and primary care clinics, as
defined in subdivision (a) of Section 1204, in order to protect
access to quality care in those hospitals and clinics. When assessing
a penalty on a skilled nursing facility or other facility subject to
Section 1423, 1424, 1424.1, or 1424.5, the department shall issue
only the higher of either a penalty for the violation of this section
or a penalty for violation of Section 1423, 1424, 1424.1, or 1424.5,
not both.
   (f) All penalties collected by the department pursuant to this
section, Sections 1280.1, 1280.3, and 1280.4, shall be deposited into
the Internal Departmental Quality Improvement Account, which is
hereby created within the Special Deposit Fund under Section 16370 of
the Government Code. Upon appropriation by the Legislature, moneys
in the account shall be expended for internal quality improvement
activities in the Licensing and Certification Program.
   (g) If the licensee disputes a determination by the department
regarding a failure to prevent or failure to timely report unlawful
or unauthorized access to, or use or disclosure of, patients' medical
information, or the imposition of a penalty under this section, the
licensee may, within 10 days of receipt of the penalty assessment,
request a hearing pursuant to Section 131071. Penalties shall be paid
when appeals have been exhausted and the penalty has been upheld.
   (h) In lieu of disputing the determination of the department
regarding a failure to prevent or failure to timely report unlawful
or unauthorized access to, or use or disclosure of, patients' medical
information, transmit to the department 75 percent of the total
amount of the administrative penalty, for each violation, within 30
business days of receipt of the administrative penalty.
   (i) Notwithstanding any other law, the department may refer
violations of this section to the Office of Health Information
Integrity for enforcement pursuant to Section 130303.
   (j) For purposes of this section, the following definitions shall
apply:
   (1) "Reported event" means all breaches included in any single
report that is made pursuant to subdivision (b), regardless of the
number of breach events contained in the report.
   (2) "Unauthorized" means the inappropriate access, review, or
viewing of patient medical information without a direct need for
medical diagnosis, treatment, or other lawful use as permitted by the
Confidentiality of Medical Information Act (Part 2.6 (commencing
with Section 56) of Division 1 of the Civil Code) or any other
statute or regulation governing the lawful access, use, or disclosure
of medical information.