BILL ANALYSIS �
SB 1407
Page 1
SENATE THIRD READING
SB 1407 (Leno)
As Amended June 20, 2012
Majority vote
SENATE VOTE :33-0
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Gatto, Harkey, |
| |Dickinson, Gorell, Huber, | |Blumenfield, Bradford, |
| |Jones, Monning, | |Charles Calderon, Campos, |
| |Wieckowski, Chesbro | |Davis, Donnelly, Fuentes, |
| | | |Hall, Hill, Cedillo, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Prohibits the disclosure of a dependent child's mental
health records or information based on the request of the
child's parent or guardian, unless the court orders otherwise.
Specifically, this bill :
1)Provides that a psychotherapist, who knows that a child has
been removed from his or her parent's or guardian's custody in
dependency proceedings, shall not release the child's mental
health records and shall not disclose information about the
child based on an authorization signed by the parent or
guardian, unless authorized to do so in a court order issued
after a finding by the court that the order would not be
detrimental to the child. If that occurs, requires the parent
or guardian to present a copy of the court order to the
psychotherapist before any records or information may be
released.
2)Provides that a psychotherapist does not have a duty to
inquire or investigate whether a child has been removed from
his or her parent's or guardian's custody in dependency
proceedings when presented by a parent with an authorization
to release mental health records.
3)Provides that the prohibition in 1) above, does not limit a
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psychotherapist's existing authority to deny release of
records if the psychotherapist determines that release of the
records would have a detrimental effect on the
psychotherapist's professional relationship with the child or
the child's physical safety or psychological well-being,
notwithstanding that a juvenile court may have issued an order
authorizing the parent to access such records. Provides that
a psychotherapist's immunity from liability for decisions
regarding release of records in these instances continues to
be governed by existing law.
EXISTING LAW :
1)Specifies, under the federal Health Insurance Portability and
Accountability Act (HIPAA), privacy protections for patients'
protected health information and generally provides that a
covered entity, as defined, may not use or disclose protected
health information except as specified or as authorized by the
patient in writing.
2)Prohibits a health care provider, health care service plan, or
contractor from disclosing medical information, as defined,
regarding a patient, enrollee, or subscriber without first
obtaining an authorization, except as specified. Provides
that a valid authorization must comply with HIPAA and the
California Confidentiality of Medical Information Act (CMIA).
3)Authorizes minors 12 years of age and older to consent to
mental health treatment or counseling services if, in the
opinion of the attending professional person, the minor is
mature enough to participate intelligently in the mental
health treatment or counseling services.
4)Provides that an adult patient of a health care provider, any
minor patient authorized by law to consent to medical
treatment, and any patient representative shall be entitled to
inspect the patient's records upon presenting to the health
care provider a written request for those records and upon
payment of reasonable clerical costs incurred in locating and
making the records available.
5)Provides that representatives are not entitled to inspect or
obtain copies of a minor patient's medical records if the
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minor has a right to consent to the medical care or where the
health care provider determines that access to the records
would have a detrimental effect on the provider's professional
relationship with the minor or the minor's physical safety or
psychological well-being. Provides that, absent bad faith,
there is no liability for a health care provider's decision
regarding release of records based on detrimental effect to
the minor.
6)Provides a cause of action against any person or entity who
negligently releases confidential information or records in
violation of the CMIA.
7)Provides that a minor may be removed from the physical custody
of his or her parents and made a dependent of the juvenile
court as the result of abuse or neglect.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, there are no significant costs associated with this
legislation.
COMMENTS : Approximately 55,000 children in California today
have, as the result of abuse or neglect, been removed from their
parents' physical custody and reside in out-of-home placement as
part of the foster care system. When a child is removed from
his or her parent's custody in dependency proceedings, the court
may temporarily limit the parent's authority over developmental
or educational decisions and medical care, including the
administration of psychotropic medications, pending
reunification or termination of parental rights.
This bill provides that a therapist may only release the mental
health information of a dependent child to a parent without
physical custody of the child if there has been a court order to
release the information, made after a court finding that such a
release would not be detrimental to the child.
This bill prohibits a psychotherapist from disclosing the mental
health records or information of a child based on an
authorization signed by the parent or guardian of that child if
that child has been removed from the physical custody of that
parent in dependency proceedings and the psychotherapist knows
about the removal, unless a court orders otherwise. A court may
only do so if it finds that allowing the parent to access the
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child's mental health records would not be detrimental to the
child.
Both HIPAA and the California CMIA protect the privacy of
medical information on a patient's medical history, mental or
physical condition, or treatment in the possession of a health
care provider. A health care provider may not use or disclose
protected health information except as specified or as
authorized by the patient or patient's representative. Parents
are generally considered their child's representative for
disclosure of medical information. However, once mental health
records have been released to a parent, there are few limits on
their use.
Current law provides an exception to protect the child patient.
Health care providers need not release information to a minor's
representative if the health care provider determines releasing
the information would have a detrimental effect on the
provider's professional relationship with the minor, or the
minor's physical safety or psychological well-being. Moreover,
absent bad faith, a therapist will not be held liable for his or
her decision regarding release of records based on detrimental
effect to the minor. This bill does not affect these
provisions.
This bill instead creates stronger protections for the mental
health records of children who have been removed from their
parents due to abuse or neglect and made dependents of the
juvenile court. Under this bill, therapists who know that a
child patient has been removed from a parent's custody in
dependency proceedings will be prohibited from releasing the
child's mental health records to a parent, whether or not the
parent signs an authorization that would otherwise be valid.
Parents are not completely denied access to their child's
records. Parents who want to access their child's mental health
record can still request authorization from the court and a
court can make such an order, after finding that the release of
records would not be detrimental to the child. A therapist has
no duty to inquire or investigate whether the child was a
dependent child. The limitation on providing information or
records only applies if the therapist knows the child has been
removed from the parent's custody by the dependency court.
Even if a court orders release of the records, a therapist could
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still refuse to release the records if the therapist determines
that the release would have a detrimental effect on the
provider's professional relationship with the child, or the
child's physical safety or psychological well-being.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0005294