Bill Text: CA AB1755 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Medical information.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2014-09-18 - Chaptered by Secretary of State - Chapter 412, Statutes of 2014. [AB1755 Detail]

Download: California-2013-AB1755-Introduced.html
BILL NUMBER: AB 1755	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Gomez

                        FEBRUARY 14, 2014

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


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1755, as introduced, Gomez. Medical information.
   Existing law requires a clinic, health facility, home health
agency, or hospice to prevent unlawful or unauthorized access to, and
use or disclosure of, patients' medical information, as defined.
Existing law requires the clinic, health facility, home health
agency, or hospice to report any unlawful or unauthorized access to,
or use or disclosure of, a patient's medical information to the State
Department of Public Health and to the affected patient or the
patient's representative, as prescribed. Existing law authorizes the
State Department of Public Health to assess administrative penalties
for violation of these provisions.
   This bill would make technical, nonsubstantive changes to these
provisions.
   Vote: majority. Appropriation: no. Fiscal committee: no.
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   1747  shall prevent unlawful or unauthorized
access to, and use or disclosure of, patients' medical information,
as defined in Section 56.05 of the Civil Code and consistent with
Section 130203. For purposes of this section, internal paper records,
electronic mail, or facsimile transmissions inadvertently
misdirected within the same facility or health care system within the
course of coordinating care or delivering services shall not
constitute unauthorized access to, or use or disclosure of, a patient'
s medical information. 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 patient's 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) 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, as required pursuant to paragraph (2) of
subdivision (b), 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
paragraph (2) of subdivision (b) would likely impede the law
enforcement agency's investigation that relates to the unlawful or
unauthorized access to, and use or disclosure of, a patient's medical
information and specifies a date upon which the delay shall end, not
to exceed 60 days after a written request is made, or 30 days after
an oral request is made. A law enforcement agency or official may
request an extension of a delay based upon a written declaration that
there exists a bona fide, ongoing, significant criminal
investigation of serious wrongdoing relating to the unlawful or
unauthorized access to, and use or disclosure of, a patient's medical
information, that notification of patients will undermine the law
enforcement agency's investigation, and that specifies a date upon
which the delay shall end, not to exceed 60 days after the end of the
original delay 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 both of 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 to the department or the
affected patient, 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. For enforcement purposes, it shall be presumed that the
facility did not notify the affected patient if the notification was
not documented. This presumption may be rebutted by a licensee only
if the licensee demonstrates, by a preponderance of the evidence,
that the notification was made.
   (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,   section and  Sections 1280.1,
1280.3, and  1280.4,   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.                           
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