BILL NUMBER: SB 1250 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 15, 2012
INTRODUCED BY Senator Alquist
FEBRUARY 23, 2012
An act to amend Section 56.36 of add
Section 56.08 to the Civil Code, relating to medical records.
LEGISLATIVE COUNSEL'S DIGEST
SB 1250, as amended, Alquist. Medical records: confidentiality.
The Confidentiality of Medical Information Act requires that every
provider of health care, health care service plan, pharmaceutical
company, and contractor who creates, maintains, preserves, stores,
abandons, destroys, or disposes of medical records do so in a manner
that preserves the confidentiality of the information contained in
the records, and provides that negligence in conducting these
activities may result in damages or an administrative fine or civil
penalty, as specified. Existing law also makes a violation of
these provision that results in economic loss or personal injury to a
patient punishable as a misdemeanor.
This bill would provide that negligence in conducting
these activities may result in the defendant being required to
provide each person who is the subject of the medical records with
access to a credit monitoring and reporting service for one year
require a health care provider, health care service
plan, or contractor, if there is a breach in the security of a
patient's social security number, driver's license number, California
identification card number, or financial information and that
provider, plan, or contractor is required to issue a breach
notification, to offer, in the breach notification, one year of free
credit monitoring services to the patient. Because a violation of
this requirement that results in economic loss or personal injury to
a patient would be punishable as a crime, this bill would impose a
state-mandated local program .
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 56.08 is added to the
Civil Code , to read:
56.08. If there is a breach in the security of a patient's social
security number, driver's license number, California identification
card number, or financial information and a health care provider,
health care service plan, or contractor is required to issue a breach
notification pursuant to Section 1798.82 or any applicable federal
law, the provider, plan, or contractor shall offer, in the breach
notification, one year of free credit monitoring services to the
patient. If the patient accepts that offer, the health care provider,
health care service plan, or contractor shall provide the credit
monitoring service to the patient. For purposes of this subdivision,
"financial information" means credit card or debit card number.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 56.36 of the Civil Code is
amended to read:
56.36. (a) Any violation of this part that results in economic
loss or personal injury to a patient is punishable as a misdemeanor.
(b) In addition to any other remedies available at law, any
individual may bring an action against any person or entity that has
negligently released confidential information or records concerning
him or her in violation of this part, for access, at the defendant's
expense, to a nationally recognized credit monitoring and reporting
service for one year from the date of release of any medical
information and either or both of the following:
(1) Nominal damages of one thousand dollars ($1,000). In order to
recover under this paragraph, it shall not be necessary that the
plaintiff suffered or was threatened with actual damages.
(2) The amount of actual damages, if any, sustained by the
patient.
(c) (1) In addition, any person or entity that negligently
discloses medical information in violation of the provisions of this
part shall also be liable, irrespective of the amount of damages
suffered by the patient as a result of that violation, for an
administrative fine or civil penalty not to exceed two thousand five
hundred dollars ($2,500) per violation.
(2) (A) Any person or entity, other than a licensed health care
professional, who knowingly and willfully obtains, discloses, or uses
medical information in violation of this part shall be liable for an
administrative fine or civil penalty not to exceed twenty-five
thousand dollars ($25,000) per violation.
(B) Any licensed health care professional, who knowingly and
willfully obtains, discloses, or uses medical information in
violation of this part shall be liable on a first violation, for an
administrative fine or civil penalty not to exceed two thousand five
hundred dollars ($2,500) per violation, or on a second violation for
an administrative fine or civil penalty not to exceed ten thousand
dollars ($10,000) per violation, or on a third and subsequent
violation for an administrative fine or civil penalty not to exceed
twenty-five thousand dollars ($25,000) per violation. Nothing in this
subdivision shall be construed to limit the liability of a health
care service plan, a contractor, or a provider of health care that is
not a licensed health care professional for any violation of this
part.
(3) (A) Any person or entity, other than a licensed health care
professional, who knowingly or willfully obtains or uses medical
information in violation of this part for the purpose of financial
gain shall be liable for an administrative fine or civil penalty not
to exceed two hundred fifty thousand dollars ($250,000) per violation
and shall also be subject to disgorgement of any proceeds or other
consideration obtained as a result of the violation.
(B) Any licensed health care professional, who knowingly and
willfully obtains, discloses, or uses medical information in
violation of this part for financial gain shall be liable on a first
violation, for an administrative fine or civil penalty not to exceed
five thousand dollars ($5,000) per violation, or on a second
violation for an administrative fine or civil penalty not to exceed
twenty-five thousand dollars ($25,000) per violation, or on a third
and subsequent violation for an administrative fine or civil penalty
not to exceed two hundred fifty thousand dollars ($250,000) per
violation and shall also be subject to disgorgement of any proceeds
or other consideration obtained as a result of the violation. Nothing
in this subdivision shall be construed to limit the liability of a
health care service plan, a contractor, or a provider of health care
that is not a licensed health care professional for any violation of
this part.
(4) Nothing in this subdivision shall be construed as authorizing
an administrative fine or civil penalty under both paragraphs (2) and
(3) for the same violation.
(5) Any person or entity that is not permitted to receive medical
information pursuant to this part and who knowingly and willfully
obtains, discloses, or uses medical information without written
authorization from the patient shall be liable for a civil penalty
not to exceed two hundred fifty thousand dollars ($250,000) per
violation.
(d) In assessing the amount of an administrative fine or civil
penalty pursuant to subdivision (c), the Office of Health Information
Integrity, licensing agency, or certifying board or court shall
consider any one or more of the relevant circumstances presented by
any of the parties to the case including, but not limited to, the
following:
(1) Whether the defendant has made a reasonable, good faith
attempt to comply with this part.
(2) The nature and seriousness of the misconduct.
(3) The harm to the patient, enrollee, or subscriber.
(4) The number of violations.
(5) The persistence of the misconduct.
(6) The length of time over which the misconduct occurred.
(7) The willfulness of the defendant's misconduct.
(8) The defendant's assets, liabilities, and net worth.
(e) (1) The civil penalty pursuant to subdivision (c) shall be
assessed and recovered in a civil action brought in the name of the
people of the State of California in any court of competent
jurisdiction by any of the following:
(A) The Attorney General.
(B) Any district attorney.
(C) Any county counsel authorized by agreement with the district
attorney in actions involving violation of a county ordinance.
(D) Any city attorney of a city.
(E) Any city attorney of a city and county having a population in
excess of 750,000, with the consent of the district attorney.
(F) A city prosecutor in any city having a full-time city
prosecutor or, with the consent of the district attorney, by a city
attorney in any city and county.
(G) The Director of the Office of Health Information Integrity may
recommend that any person described in subparagraphs (A) to (F),
inclusive, bring a civil action under this section.
(2) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund. If
the action is brought by a district attorney or county counsel, the
penalty collected shall be paid to the treasurer of the county in
which the judgment was entered. Except as provided in paragraph (3),
if the action is brought by a city attorney or city prosecutor,
one-half of the penalty collected shall be paid to the treasurer of
the city in which the judgment was entered and one-half to the
treasurer of the county in which the judgment was entered.
(3) If the action is brought by a city attorney of a city and
county, the entire amount of the penalty collected shall be paid to
the treasurer of the city and county in which the judgment was
entered.
(4) Nothing in this section shall be construed as authorizing both
an administrative fine and civil penalty for the same violation.
(5) Imposition of a fine or penalty provided for in this section
shall not preclude imposition of any other sanctions or remedies
authorized by law.
(6) Administrative fines or penalties issued pursuant to Section
1280.15 of the Health and Safety Code shall offset any other
administrative fine or civil penalty imposed under this section for
the same violation.
(f) For purposes of this section, "knowing" and "willful" shall
have the same meanings as in Section 7 of the Penal Code.
(g) No person who discloses protected medical information in
accordance with the provisions of this part shall be subject to the
penalty provisions of this part.
(h) Paragraph (6) of subdivision (e) shall only become operative
if Senate Bill 541 of the 2007-08 Regular Session is enacted and
becomes effective on or before January 1, 2009.