BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1407|
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UNFINISHED BUSINESS
Bill No: SB 1407
Author: Leno (D)
Amended: 6/20/12
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 5/8/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 33-0, 5/25/12
AYES: Alquist, Anderson, Berryhill, Blakeslee, Cannella,
Corbett, Correa, De Le�n, DeSaulnier, Dutton, Emmerson,
Evans, Fuller, Gaines, Harman, Hernandez, Huff, La Malfa,
Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla,
Pavley, Price, Rubio, Steinberg, Vargas, Walters, Wolk,
Wright, Yee
NO VOTE RECORDED: Calderon, Hancock, Kehoe, Runner,
Simitian, Strickland, Wyland
ASSEMBLY FLOOR : 79-0, 8/23/12 - See last page for vote
SUBJECT : Medical information: disclosure
SOURCE : Author
DIGEST : This bill prohibits a psychotherapist from
disclosing mental health records or information based
solely on an authorization signed by a parent or guardian
of that minor if the minor has been removed from the
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physical custody of that parent or guardian in dependency
proceedings for severe abuse or neglect or risk of abuse,
unless the court has issued an order authorizing the parent
or guardian to be the minor's representative for the
release of such information, upon finding that it would not
be detrimental to the minor patient.
Assembly Amendments (1) make clarifying changes and make
corresponding code changes, (2) remove an exception for
hospitals, and (3) clarify that only mental health records
and information are covered by this bill.
ANALYSIS : Existing federal law, the Health Insurance
Portability and Accountability Act (HIPPA), specifies
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. (45 Code of Federal Regulations
Section 164.500 et seq.)
Existing law defines "medical information" to mean any
individually identifiable information, in electronic or
physical form, in possession of or derived from a provider
of health care, health care service plan, pharmaceutical
company, or contractor regarding a patient's medical
history, mental or physical condition, or treatment.
Existing law defines "individually identifiable" to mean
that the medical information includes or contains any
element of personal identifying information sufficient to
allow identification of the individual, such as the
patient's name, address, electronic mail address, telephone
number, or social security number, or other information
that, alone or in combination with other publicly available
information, reveals the individual's identity. (Civil
Code (CIV) Section 56.05(g))
Existing law 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 Section 56.10(a).) Valid authorizations
comply with HIPPA and Confidentiality of Medical
Information Act (CMIA). (CIV Section 56.11)
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Existing law provides that a health care provider may
disclose health information to another health care provider
for diagnosis and treatment purposes without a signed
authorization. (CIV Section 56.10(c)(1))
Existing law 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. (Health and Safety Code (HSC) Section 124260)
Existing law 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. (HSC Section 123110)
Existing law provides that representatives are not entitled
to inspect or obtain copies of a minor patient's medical
records if the 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.
(HSC Section 123115(a)(2))
Existing law provides that a plaintiff may bring an action
against any person or entity who has negligently released
his/her confidential information or records in violation of
the CMIA as follows:
nominal damages of $1,000; and
the amount of actual damages. (CIV Section 56.36(b))
Existing law provides that a minor may be removed from the
physical custody of his/her parents for serious abuse or
neglect, or risk of serious abuse or neglect. (Welfare and
Institutions Code (WIC) Section 300)
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This bill provides that notwithstanding Section 3025 of the
Family Code, paragraph (2) of subdivision (c) of Section
56.11, or any other provision of law, a psychotherapist who
knows that a minor has been removed from the custody of
his/her parent or guardian pursuant to Article 6
(commencing with Section 300) to Article 10 (commencing
with Section 360), inclusive, of Chapter 2 of Part 1 of
Division 2 of the WIC shall not release the mental health
records of the minor patient and shall not disclose mental
health information about that minor patient based upon an
authorization to release those records signed by the
minor's parent or guardian. This restriction shall not
apply if the juvenile court has issued an order authorizing
the parent or guardian to sign an authorization for the
release of the mental health records or the information
about the minor patient after finding that such an order
would not be detrimental to the minor patient.
This bill provides that when the juvenile court has issued
an order authorizing the parent or guardian to sign an
authorization for the release of the mental health records
or information about that minor patient, the parent or
guardian seeking the release of the minor's records or
information about the minor shall present a copy of the
court order to the psychotherapist before any records or
information may be released pursuant to the signed
authorization.
Nothing in this bill shall be construed to prevent or limit
a psychotherapist's authority to deny a parent's or
guardian's written request to inspect or obtain copies of
the minor patient's mental health records, notwithstanding
the fact that the juvenile court has issued an order
authorizing the parent or guardian to sign an authorization
for the release of the mental health records or information
about that minor patient. Liability for a
psychotherapist's decision not to release the mental health
records of the minor patient or not to disclose information
about the minor patient pursuant to the authority of
subdivision (a) of HSC Section 123115 shall be governed by
that section.
Nothing in this bill shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a
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child has been removed from the physical custody of his/her
parent or guardian pursuant to Article 6 (commencing with
Section 300) to Article 10 (commencing with Section 360),
inclusive, of Chapter 2 of Part 1 of Division 2 of the WIC
when a parent or guardian presents the minor's
psychotherapist with an authorization to release
information or the mental health records regarding the
minor patient.
The provisions of this bill are now contained in CIV
Section 56.106 as well as HSC Section 123116.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/24/12)
California Academy of Child and Adolescent Psychiatry
California Association of Marriage and Family Therapists
California Council of Community Mental Health Agencies
Children's Partnership
Court Appointed Special Advocates for California Children
East Bay Children's Law Offices
Junior League of California
Kaiser Permanente
Legal Advocates for Children & Youth
Mental Health America of California/Mental Health
Association in California
Mental Health Association of San Francisco
National Association of Social Workers
Privacy Rights Clearinghouse
University of San Diego School of Law's Children's Advocacy
Institute
OPPOSITION : (Verified 8/24/12)
Executive Committee of the Family Law Section of the State
Bar of California
ARGUMENTS IN SUPPORT : The author writes:
California law allows parents whose children have been
removed because of abuse, abandonment, or neglect to
access their children's mental health information,
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subject to some discretion by the therapist. However, a
noncustodial parent may not be acting in their child's
best interests when authorizing use of the child's mental
health treatment information, and may use this
confidential information to further their own legal
purposes, undermining the child's stated wishes or best
interests.
Children who lose trust in the confidentiality of their
communications may be unwilling to trust future
therapists, social workers or counselors. Treatment of a
child who has experienced abuse or neglect requires a
sense of trust, autonomy, and personal boundaries.
ARGUMENTS IN OPPOSITION : The Executive Committee of the
Family Law Section of the State Bar of California (FLEXCOM)
opposes this bill, unless it is amended. FLEXCOM writes
that it "would withdraw its opposition if the bill were
amended to place the burden on the child welfare or other
counsel to show, by clear and convincing evidence, that the
parent or guardian's continued access to or ability to
authorize the release of mental health information is
detrimental to the child, while family reunification
services are being provided." FLEXCOM argues that this
would better reflect the dependency system's policy to
support family reunification.
ASSEMBLY FLOOR : 79-0, 8/23/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell,
Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill,
Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara,
Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller,
Mitchell, Monning, Morrell, Nestande, Nielsen, Norby,
Olsen, Pan, Perea, V. Manuel P�rez, Portantino, Silva,
Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Roger Hern�ndez
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RJG:k 8/24/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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