Bill Text: CA SB241 | 2017-2018 | Regular Session | Chaptered
Bill Title: Medical records: access.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2017-10-05 - Chaptered by Secretary of State. Chapter 513, Statutes of 2017. [SB241 Detail]
Download: California-2017-SB241-Chaptered.html
| Senate Bill No. 241 |
| CHAPTER 513 |
An act to amend Sections 123105 and 123110 of the Health and Safety Code, and to amend Section 5328 of the Welfare and Institutions Code, relating to medical records.
[
Approved by
Governor
October 05, 2017.
Filed with
Secretary of State
October 05, 2017.
]
LEGISLATIVE COUNSEL'S DIGEST
SB 241, Monning.
Medical records: access.
Existing law governs a patient’s access to his or her health records. Existing law requires a health care provider to provide a patient or his or her representative with all or any part of the patient’s medical records that the patient has a right to inspect, subject to the payment of clerical costs incurred in locating and making the records available, following a written request from the patient. If the patient or patient’s representative presents proof to the provider that the records are needed to support an appeal regarding eligibility for a public benefit program, as defined, the health care provider must provide one copy of the relevant portion of the patient’s record at no charge under specified circumstances. Existing law makes a violation of these provisions by specified health care providers an infraction.
This bill would change the
basis of the fee that a health care provider is authorized to charge from clerical costs to specified costs for labor, supplies, postage, and preparing an explanation or summary of the patient record. The bill would require the health care provider to provide the patient or patient’s personal representative with a copy of the records in a paper or electronic copy, in the form or format requested if the records are readily producible in that form or format. By expanding the scope of a crime, this bill would create a state-mandated local program.
Existing law provides that information and records obtained in the course of providing mental health and developmental services are confidential, but allows disclosure of communications under specified circumstances.
This bill would allow disclosure to a business associate or
for health care operations purposes, as specified.
This bill would incorporate additional changes to Section 123110 of the Health and Safety Code proposed by SB 575 to be operative only if this bill and SB 575 are enacted and this bill is enacted last.
This bill would incorporate additional changes to Section 5328 of the Welfare and Institutions Code proposed by AB 1119 to be operative only if this bill and AB 1119 are enacted and this bill is enacted last.
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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 123105 of the Health and Safety Code is amended to read:123105.
As used in this chapter:(a) “Health care provider” means any of the following:
(1) A health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2.
(2) A clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2.
(3) A home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2.
(4) A physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code or pursuant to the
Osteopathic Act.
(5) A podiatrist licensed pursuant to Article 22 (commencing with Section 2460) of Chapter 5 of Division 2 of the Business and Professions Code.
(6) A dentist licensed pursuant to Chapter 4 (commencing with Section 1600) of Division 2 of the Business and Professions Code.
(7) A psychologist licensed pursuant to Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code.
(8) An optometrist licensed pursuant to Chapter 7 (commencing with Section 3000) of Division 2 of the Business and Professions Code.
(9) A chiropractor licensed pursuant to the Chiropractic Initiative Act.
(10) A marriage and family therapist licensed pursuant to Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code.
(11) A clinical social worker licensed pursuant to Chapter 14 (commencing with Section 4990) of Division 2 of the Business and Professions Code.
(12) A physical therapist licensed pursuant to Chapter 5.7 (commencing with Section 2600) of Division 2 of the Business and Professions Code.
(13) An occupational therapist licensed pursuant to Chapter 5.6 (commencing with Section 2570).
(14) A professional clinical counselor licensed pursuant to Chapter 16 (commencing with Section 4999.10) of Division 2 of the Business and Professions Code.
(b) “Mental health records” means patient records, or discrete portions thereof, specifically relating to evaluation or treatment of a mental disorder. “Mental health records” includes, but is not limited to, all alcohol and drug abuse records.
(c) “Patient” means a patient or former patient of a health care provider.
(d) “Patient records” means records in any form or medium maintained by, or in the custody or control of, a health care provider relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient. “Patient records” includes only records pertaining to the patient requesting the records or whose representative requests the records. “Patient records” does not include information given in confidence to a health care provider by a person other than another health care provider or
the patient, and that material may be removed from any records prior to inspection or copying under Section 123110 or 123115. “Patient records” does not include information contained in aggregate form, such as indices, registers, or logs.
(e) “Patient’s representative,” “patient’s personal representative,” or “representative” means any of the following:
(1) A parent or guardian of a minor who is a patient.
(2) The guardian or conservator of the person of an adult patient.
(3) An agent as defined in Section 4607 of the Probate Code, to the extent
necessary for the agent to fulfill his or her duties as set forth in Division 4.7 (commencing with Section 4600) of the Probate Code.
(4) The beneficiary as defined in Section 24 of the Probate Code or personal representative as defined in Section 58 of the Probate Code, of a deceased patient.
(f) “Alcohol and drug abuse records” means patient records, or discrete portions thereof, specifically relating to evaluation and treatment of alcoholism or drug abuse.
SEC. 2.
Section 123110 of the Health and Safety Code is amended to read:123110.
(a) Notwithstanding Section 5328 of the Welfare and Institutions Code, and except as provided in Sections 123115 and 123120, any adult patient of a health care provider, any minor patient authorized by law to consent to medical treatment, and any patient’s personal representative shall be entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs as specified in subdivision (k). However, a patient who is a minor shall be entitled to inspect patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent. A health care provider shall permit this inspection during business hours within five working days after receipt of the request. The inspection shall be conducted by the patient or patient’s personal representative requesting the inspection, who may be accompanied by one other person of his or her choosing.(b) (1) Additionally, any patient or patient’s personal representative shall be entitled to a paper or electronic copy of all or any portion of the patient records that he or she has a right to inspect, upon presenting a request to the health care provider specifying the records to be copied, together
with a fee to defray the costs of producing the copy or summary, as specified in subdivision (k). The health care provider shall ensure that the copies are transmitted within 15 days after receiving the request.
(2) The health care provider shall provide the patient or patient’s personal representative with a copy of the record in the form and format requested if it is readily producible in the requested form and format, or, if not, in a readable paper copy form or other form and format as agreed to by the health care provider and the patient or patient’s personal representative. If the requested patient records are maintained electronically and if the
patient or patient’s personal
representative requests an electronic copy of those records, the health care provider shall provide them in the electronic form and format requested if they are readily producible in that form and format, or, if not, in a readable electronic form and format as agreed to by the health care provider and the patient or patient’s personal representative.
(c) Copies of X-rays or tracings derived from electrocardiography, electroencephalography, or electromyography need not be provided to the patient or patient’s personal representative under this section, if the original X-rays or tracings are transmitted to another health care provider
upon written request of the patient or patient’s personal
representative and within 15 days after receipt of the request. The request shall specify the name and address of the health care provider to whom the records are to be delivered. All reasonable costs, not exceeding actual costs, incurred by a health care provider in providing copies pursuant to this subdivision may be charged to the patient or representative requesting the copies.
(d) (1) Notwithstanding any provision of this section, and except as provided in Sections 123115 and 123120, any patient or former patient or the patient’s personal representative shall be entitled to a copy, at no charge, of the relevant portion of the patient’s records, upon presenting to the provider a written request, and
proof that the records are needed to support an appeal regarding eligibility for a public benefit program. These programs shall be the Medi-Cal program, social security disability insurance benefits, and Supplemental Security Income/State Supplementary Program for the Aged, Blind, and Disabled (SSI/SSP) benefits. For purposes of this subdivision, “relevant portion of the patient’s records” means those records regarding services rendered to the patient during the time period beginning with the date of the patient’s initial application for public benefits up to and including the date that a final determination is made by the public benefits program with which the patient’s application is pending.
(2) Although a patient shall not be limited to a single request, the patient or patient’s
personal
representative shall be entitled to no more than one copy of any relevant portion of his or her record free of charge.
(3) This subdivision shall not apply to any patient who is
represented by a private attorney who is paying for the costs related to the patient’s appeal, pending the outcome of that appeal. For purposes of this subdivision, “private attorney” means any attorney not employed by a nonprofit legal services entity.
(e) If the patient’s appeal regarding eligibility for a public benefit program specified in subdivision (d) is successful, the hospital or other health care provider may bill the patient, at the rates specified in subdivisions (b) and (c), for the copies of the medical records previously provided free of charge.
(f) If a patient or his or her personal representative requests a record pursuant to subdivision (d), the health care
provider shall ensure that the copies are transmitted within 30 days after receiving the written request.
(g) This section shall not be construed to preclude a health care provider from requiring reasonable verification of identity prior to permitting inspection or copying of patient records, provided this requirement is not used oppressively or discriminatorily to frustrate or delay compliance with this section. Nothing in this chapter shall be deemed to supersede any rights that a patient or personal representative might otherwise have or exercise under Section 1158 of the Evidence Code or any other provision of law. Nothing in this chapter shall require a health care provider to retain records longer than required by applicable statutes or
administrative regulations.
(h) This chapter shall not be construed to render a health care provider liable for the quality of his or her records or the copies provided in excess of existing law and regulations with respect to the quality of medical records. A health care provider shall not be liable to the patient or any other person for any consequences that result from disclosure of patient records as required by this chapter. A health care provider shall not discriminate against classes or categories of providers in the transmittal of X-rays or other patient records, or copies of these X-rays or records, to other providers as authorized by this section.
Every health care provider shall adopt policies and establish procedures for the uniform transmittal of X-rays and other patient records
that effectively prevent the discrimination described in this subdivision. A health care provider may establish reasonable conditions, including a reasonable deposit fee, to ensure the return of original X-rays transmitted to another health care provider, provided the conditions do not discriminate on the basis of, or in a manner related to, the license of the provider to which the X-rays are transmitted.
(i) Any health care provider described in paragraphs (4) to (10), inclusive, of subdivision (a) of Section 123105 who willfully violates this chapter is guilty of unprofessional conduct. Any health care provider described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 123105 that willfully violates this chapter is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). The state agency,
board, or commission that issued the health care provider’s professional or institutional license shall consider a violation as grounds for disciplinary action with respect to the licensure, including suspension or revocation of the license or certificate.
(j) This section shall be construed as prohibiting a health care provider from withholding patient records or summaries of patient records because of an unpaid bill for health care services. Any health care provider who willfully withholds patient records or summaries of patient records because of an unpaid bill for health care services shall be subject to the sanctions specified in subdivision (i).
(k) (1) Except as provided in subdivision (d), a health care provider may impose a reasonable, cost-based
fee for providing a paper or electronic copy or summary of patient records, provided the fee includes only the cost of the following:
(A) Labor for copying the patient records requested by the patient or patient’s personal representative, whether in paper or electronic form.
(B) Supplies for creating the paper copy or electronic media if the patient or patient’s personal representative requests that the electronic copy be provided on portable media.
(C) Postage, if the patient or patient’s
personal representative has requested the copy, or the summary or explanation, be mailed.
(D) Preparing an explanation or summary of the patient record, if agreed to by the patient or patient’s personal representative.
(2) The fee from a health care provider shall not exceed twenty-five cents ($0.25) per page for paper copies or fifty cents ($0.50) per page for records that are copied from microfilm.
SEC. 2.5.
Section 123110 of the Health and Safety Code is amended to read:123110.
(a) Notwithstanding Section 5328 of the Welfare and Institutions Code, and except as provided in Sections 123115 and 123120, any adult patient of a health care provider, any minor patient authorized by law to consent to medical treatment, and any patient’s personal representative shall be entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs, as specified in subdivision (k). However, a patient who is a minor shall be entitled to inspect patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent. A health care provider shall permit this inspection during business hours within five working days after receipt of the request. The inspection shall be conducted by the patient or patient’s personal representative requesting the inspection, who may be accompanied by one other person of his or her choosing.(b) (1) Additionally, any patient or patient’s personal representative shall be entitled to a
paper or electronic copy of all or any portion of the patient records that he or she has a right to inspect, upon presenting a request to the health care provider specifying the records to be copied, together with a fee to defray the
costs of producing the copy or summary, as specified in subdivision (k). The health care provider shall ensure that the copies are transmitted within 15 days after receiving the request.
(2) The health care provider shall provide the patient or patient’s personal representative with a copy of the record in the form and format requested if it is readily producible in the requested form and format, or, if not, in a readable paper copy form or other form and format as agreed to by the health care provider and the patient or patient’s personal representative. If the requested patient records are maintained electronically and if the patient or
patient’s personal representative requests an electronic copy of those records, the health care provider shall provide them in the electronic form and format requested if they are readily producible in that form and format, or, if not, in a readable electronic form and format as agreed to by the health care provider and the patient or patient’s personal representative.
(c) Copies of X-rays or tracings derived from electrocardiography, electroencephalography, or electromyography need not be provided to the patient or patient’s personal representative under
this section, if the original X-rays or tracings are transmitted to another health care provider upon written request of the patient or patient’s personal representative and within 15 days after receipt of the request. The request shall specify the name and address of the health care provider to whom the records are to be delivered. All reasonable costs, not exceeding actual costs, incurred by a health care provider in providing copies pursuant to this subdivision may be charged to the patient or representative requesting the copies.
(d) (1) Notwithstanding any provision of this section, and except as provided in Sections 123115 and 123120, a patient, former patient, or the representative of a patient or former patient, is
entitled to a copy, at no charge, of the relevant portion of the patient’s records, upon presenting to the provider a written request, and proof that the records or supporting forms are needed to support a claim or appeal regarding eligibility for a public benefit program. These programs shall be the Medi-Cal program, the In-Home Supportive Services Program, the California Work Opportunity and Responsibility to Kids (CalWORKS) program, social security disability insurance benefits, Supplemental Security Income/State Supplementary Program for the Aged, Blind, and Disabled (SSI/SSP)
benefits, federal veterans service-connected compensation and nonservice connected pension disability benefits, and CalFresh.
(2) Although a patient shall not be limited to a single request, the patient or patient’s personal representative shall be entitled to no more than one copy of any relevant portion of his or her record free of charge.
(3) This subdivision shall not apply to any patient who is represented by a private attorney who is paying for the costs related to the patient’s claim or appeal, pending the outcome of that claim or appeal. For purposes of this subdivision, “private attorney” means any attorney not employed by a nonprofit legal services entity.
(e) If the patient’s appeal regarding eligibility for a public benefit program specified in subdivision (d) is successful, the hospital or other health care provider may bill the patient, at the rates specified in subdivisions (b) and (c), for the copies of the medical records previously provided free of charge.
(f) If a patient or his or her personal representative requests a record pursuant to subdivision (d), the health care provider shall ensure that the copies are transmitted within 30 days after receiving the written request.
(g) This section shall not be construed to preclude a health care provider from requiring
reasonable verification of identity prior to permitting inspection or copying of patient records, provided this requirement is not used oppressively or discriminatorily to frustrate or delay compliance with this section. Nothing in this chapter shall be deemed to supersede any rights that a patient or personal representative might otherwise have or exercise under Section 1158 of the Evidence Code or any other provision of law. Nothing in this chapter shall require a health care provider to retain records longer than required by applicable statutes or administrative regulations.
(h) This chapter shall not be construed to render a health care provider liable for the quality of his or her records or the copies provided in excess of existing law
and regulations with respect to the quality of medical records. A health care provider shall not be liable to the patient or any other person for any consequences that result from disclosure of patient records as required by this chapter. A health care provider shall not discriminate against classes or categories of providers in the transmittal of X-rays or other patient records, or copies of these X-rays or records, to other providers as authorized by this section.
Every health care provider shall adopt policies and establish procedures for the uniform transmittal of X-rays and other patient records that effectively prevent the discrimination described in this subdivision. A health care provider may establish reasonable conditions, including a reasonable deposit fee, to ensure the return of original X-rays transmitted to another health care provider, provided
the conditions do not discriminate on the basis of, or in a manner related to, the license of the provider to which the X-rays are transmitted.
(i) Any health care provider described in paragraphs (4) to (10), inclusive, of subdivision (a) of Section 123105 who willfully violates this chapter is guilty of unprofessional conduct. Any health care provider described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 123105 that willfully violates this chapter is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). The state agency, board, or commission that issued the health care provider’s professional or institutional license shall consider a violation as grounds for disciplinary action with respect to the licensure, including suspension or revocation of the license or certificate.
(j) This section prohibits a health care provider from withholding patient records or summaries of patient records because of an unpaid bill for health care services. Any health care provider who willfully withholds patient records or summaries of patient records because of an unpaid bill for health care services is subject to the sanctions specified in subdivision (i).
(k) (1) Except as provided in subdivision (d), a health care provider may impose a reasonable, cost-based fee for providing a paper or electronic copy or summary of patient records, provided the fee includes only the cost of the following:
(A) Labor for copying the patient records requested by the patient or patient’s
personal representative, whether in paper or electronic form.
(B) Supplies for creating the paper copy or electronic media if the patient or patient’s personal representative requests that the electronic copy be provided on portable media.
(C) Postage, if the patient or patient’s personal representative has requested the copy, or the summary or explanation, be mailed.
(D) Preparing an explanation or summary of the patient record, if agreed to by the patient or patient’s
personal representative.
(2) The fee from a health care provider shall not exceed twenty-five cents ($0.25) per page for paper copies or fifty cents ($0.50) per page for records that are copied from microfilm.
SEC. 3.
Section 5328 of the Welfare and Institutions Code is amended to read:5328.
All information and records obtained in the course of providing services under Division 4 (commencing with Section 4000), Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100), to either voluntary or involuntary recipients of services shall be confidential. Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients prior to 1969 shall also be confidential. Information and records shall be disclosed only in any of the following cases:(a) In communications between qualified
professional persons in the provision of services or appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or his or her guardian or conservator, shall be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical or psychological responsibility for the patient’s care.
(b) When the patient, with the approval of the physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, or licensed professional clinical counselor, who is in charge of the patient, designates persons to whom information or records may be released, except that nothing in this article shall be construed to compel a
physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family. Nothing in this subdivision shall be construed to authorize a licensed marriage and family therapist or licensed professional clinical counselor to provide services or to be in charge of a patient’s care beyond his or her lawful scope of practice.
(c) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he or she may be entitled.
(d) If the recipient of services
is a minor, ward, dependent, or conservatee, and his or her parent, guardian, guardian ad litem, conservator, or authorized representative designates, in writing, persons to whom records or information may be disclosed, except that nothing in this article shall be construed to compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family.
(e) For research, provided that the Director of Health Care Services, the Director of State Hospitals, the Director of Social Services, or the Director of Developmental Services designates by regulation, rules for the conduct of
research and requires the research to be first reviewed by the appropriate institutional review board or boards. The rules shall include, but need not be limited to, the requirement that all researchers shall sign an oath of confidentiality as follows:
Date |
As a condition of doing research concerning persons who
have received services from ____ (fill in the facility, agency or person), I, ____, agree to obtain the prior informed consent of such persons who have received services to the maximum degree possible as determined by the appropriate institutional review board or boards for protection of human subjects reviewing my research, and I further agree not to divulge any information obtained in the course of such research to unauthorized persons, and not to publish or otherwise make public any information regarding persons who have received services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.
(h) To the Senate Committee on Rules or the Assembly Committee on Rules for the purposes of legislative investigation authorized by the committee.
(i) If the recipient of services who applies for life or disability insurance designates in writing the insurer to which records or information may be disclosed.
(j) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except
that when the patient is unable to sign the release, the staff of the facility, upon satisfying itself of the identity of the attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that nothing in this article shall be construed to compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a
patient’s family.
(k) Upon written agreement by a person previously confined in or otherwise treated by a facility, the professional person in charge of the facility or his or her designee may release any information, except information that has been given in confidence by members of the person’s family, requested by a probation officer charged with the evaluation of the person after his or her conviction of a crime if the professional person in charge of the facility determines that the information is relevant to the evaluation. The agreement shall only be operative until sentence is passed on the crime of which the person was convicted. The confidential information released pursuant to this subdivision shall be transmitted to the court separately from the probation report and shall not be placed in the probation report. The
confidential information shall remain confidential except for purposes of sentencing. After sentencing, the confidential information shall be sealed.
(l) (1) Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to subdivision (d) of Section 18951. The information and records sought to be disclosed shall be relevant to the provision of child welfare services or the investigation, prevention, identification, management, or treatment of child abuse or neglect pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of Division 9. Information obtained pursuant to this subdivision shall not be used in any criminal or delinquency proceeding. Nothing in this subdivision shall prohibit evidence identical to that contained within the records from being admissible in a
criminal or delinquency proceeding, if the evidence is derived solely from means other than this subdivision, as permitted by law.
(2) As used in this subdivision, “child welfare services” means those services that are directed at preventing child abuse or neglect.
(m) To county patients’ rights advocates who have been given knowing voluntary authorization by a client or a guardian ad litem. The client or guardian ad litem, whoever entered into the agreement, may revoke the authorization at any time, either in writing or by oral declaration to an approved advocate.
(n) To a committee established in compliance with Section 14725.
(o) In providing information
as described in Section 7325.5. Nothing in this subdivision shall permit the release of any information other than that described in Section 7325.5.
(p) To the county behavioral health director or the director’s designee, or to a law enforcement officer, or to the person designated by a law enforcement agency, pursuant to Sections 5152.1 and 5250.1.
(q) If the patient gives his or her consent, information specifically pertaining to the existence of genetically handicapping conditions, as defined in Section 125135 of the Health and Safety Code, may be released to qualified professional persons for purposes of genetic counseling for blood relatives upon request of the blood relative. For purposes of this subdivision, “qualified professional persons” means those persons with the
qualifications necessary to carry out the genetic counseling duties under this subdivision as determined by the genetic disease unit established in the State Department of Health Care Services under Section 125000 of the Health and Safety Code. If the patient does not respond or cannot respond to a request for permission to release information pursuant to this subdivision after reasonable attempts have been made over a two-week period to get a response, the information may be released upon request of the blood relative.
(r) When the patient, in the opinion of his or her psychotherapist, presents a serious danger of violence to a reasonably foreseeable victim or victims, then any of the information or records specified in this section may be released to that person or persons and to law enforcement agencies and county child welfare agencies as the
psychotherapist determines is needed for the protection of that person or persons. For purposes of this subdivision, “psychotherapist” means anyone so defined within Section 1010 of the Evidence Code.
(s) (1) To the designated officer of an emergency response employee, and from that designated officer to an emergency response employee regarding possible exposure to HIV or AIDS, but only to the extent necessary to comply with provisions of the federal Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(2) For purposes of this subdivision, “designated officer” and “emergency response employee” have the same meaning as these terms are used in the federal Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality requirements specified in Section 120980, and may be personally liable for unauthorized release of any identifying information about the HIV results. Further, the designated officer shall inform the exposed emergency response employee that the employee is also subject to the confidentiality requirements specified in Section 120980, and may be personally liable for unauthorized release of any identifying information about the HIV test results.
(t) (1) To a law enforcement officer who personally lodges with a facility, as defined in paragraph (2), a warrant of arrest or an abstract of such a warrant showing that the person sought is wanted for
a serious felony, as defined in Section 1192.7 of the Penal Code, or a violent felony, as defined in Section 667.5 of the Penal Code. The information sought and released shall be limited to whether or not the person named in the arrest warrant is presently confined in the facility. This paragraph shall be implemented with minimum disruption to health facility operations and patients, in accordance with Section 5212. If the law enforcement officer is informed that the person named in the warrant is confined in the facility, the officer may not enter the facility to arrest the person without obtaining a valid search warrant or the permission of staff of the facility.
(2) For purposes of paragraph (1), a facility means all of the following:
(A) A state hospital, as defined in Section
4001.
(B) A general acute care hospital, as defined in subdivision (a) of Section 1250 of the Health and Safety Code, solely with regard to information pertaining to a person with mental illness subject to this section.
(C) An acute psychiatric hospital, as defined in subdivision (b) of Section 1250 of the Health and Safety Code.
(D) A psychiatric health facility, as described in Section 1250.2 of the Health and Safety Code.
(E) A mental health rehabilitation center, as described in Section 5675.
(F) A skilled nursing facility with a special treatment program for individuals with mental illness,
as described in Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the California Code of Regulations.
(u) Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to Section 15610.55, 15753.5, or 15761. The information and records sought to be disclosed shall be relevant to the prevention, identification, management, or treatment of an abused elder or dependent adult pursuant to Chapter 13 (commencing with Section 15750) of Part 3 of Division 9.
(v) The amendment of subdivision (d) enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.
(w) This section shall not be limited by Section
5150.05 or 5332.
(x) (1) When an employee is served with a notice of adverse action, as defined in Section 19570 of the Government Code, the following information and records may be released:
(A) All information and records that the appointing authority relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the adverse action, or that would constitute relevant evidence as defined in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer’s legal representative or, if the consumer has no legal representative or if the legal representative is a state agency, to the clients’ rights advocate, and the consumer, the consumer’s legal representative, or the clients’ rights advocate has not objected in writing to the appointing authority within five business days of receipt of the notice, or the appointing authority, upon review of the objection has determined that the circumstances on which the adverse action is based are egregious or threaten the health, safety, or life of the consumer or other consumers and without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse action has been taken, and the person’s representative, if any, have entered into a stipulation that does all of
the following:
(I) Prohibits the parties from disclosing or using the information or records for any purpose other than the proceedings for which the information or records were requested or provided.
(II) Requires the employee and the employee’s legal representative to return to the appointing authority all records provided to them under this subdivision, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representative because they were
submitted to the administrative tribunal as a component of an appeal from the adverse action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel Board may, prior to any appeal from adverse action being filed with it, issue a protective order, upon application by the appointing authority, for the limited purpose of prohibiting the parties from disclosing or using information or records for any purpose other than the proceeding for which the information or records were requested or provided, and to require the employee or the employee’s legal representative to return to the appointing authority all records provided to them under this subdivision, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representatives because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(3) Individual identifiers, including, but not limited to, names, social security numbers, and hospital numbers, that are not necessary for the prosecution or defense of the adverse action, shall not be disclosed.
(4) All records, documents, or other materials containing confidential information protected by this section that have been submitted or otherwise disclosed to the administrative agency or other person as a component of
an appeal from an adverse action shall, upon proper motion by the appointing authority to the administrative tribunal, be placed under administrative seal and shall not, thereafter, be subject to disclosure to any person or entity except upon the issuance of an order of a court of competent jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes final when the employee fails to answer within the time specified in Section 19575 of the Government Code, or, after filing an answer, withdraws the appeal, or, upon exhaustion of the administrative appeal or of the judicial review remedies as otherwise provided by law.
(y) To the person appointed as the developmental services decisionmaker for a minor, dependent, or ward pursuant to Section 319, 361, or
726.
(z) To a business associate or for health care operations purposes, in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of
Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations.
SEC. 3.5.
Section 5328 of the Welfare and Institutions Code is amended to read:5328.
(a) All information and records obtained in the course of providing services under Division 4 (commencing with Section 4000), Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100), to either voluntary or involuntary recipients of services shall be confidential. Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients prior to 1969 shall also be confidential. Information and records shall be disclosed only in any of the following cases:(1) In
communications between qualified professional persons in the provision of services or appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or his or her guardian or conservator, shall be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical or psychological responsibility for the patient’s care.
(2) When the patient, with the approval of the physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, or licensed professional clinical counselor, who is in charge of the patient, designates persons to whom information or records may be released, except that this article does
not compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family.
This paragraph does not authorize a licensed marriage and family therapist or licensed professional clinical counselor to provide services or to be in charge of a patient’s care beyond his or her lawful scope of practice.
(3) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he or she may be entitled.
(4) If the recipient of services is a minor, ward, dependent, or conservatee, and his or her parent, guardian, guardian ad litem, conservator, or authorized representative designates, in writing, persons to whom records or information may be disclosed, except that this article does not compel a physician and surgeon, licensed psychologist, social worker with a
master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family.
(5) For research, provided that the Director of Health Care Services, the Director of State Hospitals, the Director of Social Services, or the Director of Developmental Services designates by regulation, rules for the conduct of research and requires the research to be first reviewed by the appropriate institutional review board or boards. The rules shall include, but need not be limited to, the requirement that all researchers shall sign an oath of confidentiality as follows:
Date |
As a condition of doing research concerning persons who have received services from ____ (fill in the facility, agency or person), I, ____, agree to obtain the prior informed consent of such persons who have received services to the maximum degree possible as determined by the appropriate institutional review board or boards for protection of human subjects reviewing my
research, and I further agree not to divulge any information obtained in the course of such research to unauthorized persons, and not to publish or otherwise make public any information regarding persons who have received services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.
(6) To the courts, as necessary to the administration of justice.
(7) To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.
(8) To the Senate Committee on Rules or the Assembly Committee on Rules for the purposes of legislative investigation authorized by the committee.
(9) If the recipient of services who applies for life or disability insurance designates in writing the insurer to which records or information may be disclosed.
(10) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign the release, the staff of the facility, upon satisfying itself of the identity of the attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that this article does not compel a
physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family.
(11) Upon written agreement by a person previously confined in or otherwise treated by a facility, the professional person in charge of the facility or his or her designee may release any information, except information that has been given in confidence by members of the person’s family, requested by a probation officer charged with the evaluation of the person after his or her conviction of a crime if the professional person in charge of the facility determines that the information is relevant to the evaluation. The agreement
shall only be operative until sentence is passed on the crime of which the person was convicted. The confidential information released pursuant to this paragraph shall be transmitted to the court separately from the probation report and shall not be placed in the probation report. The confidential information shall remain confidential except for purposes of sentencing. After sentencing, the confidential information shall be sealed.
(12) (A) Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to subdivision (d) of Section 18951. The information and records sought to be disclosed shall be relevant to the provision of child welfare services or the investigation, prevention, identification, management, or treatment of child abuse or neglect pursuant to Chapter 11 (commencing
with Section 18950) of Part 6 of Division 9. Information obtained pursuant to this paragraph shall not be used in any criminal or delinquency proceeding. This paragraph does not prohibit evidence identical to that contained within the records from being admissible in a criminal or delinquency proceeding, if the evidence is derived solely from means other than this paragraph, as permitted by law.
(B) As used in this paragraph, “child welfare services” means those services that are directed at preventing child abuse or neglect.
(13) To county patients’ rights advocates who have been given knowing voluntary authorization by a client or a guardian ad litem. The client or guardian ad litem, whoever entered into the agreement, may revoke the authorization at any time,
either in writing or by oral declaration to an approved advocate.
(14) To a committee established in compliance with Section 14725.
(15) In providing information as described in Section 7325.5. This paragraph does not permit the release of any information other than that described in Section 7325.5.
(16) To the county behavioral health director or the director’s designee, or to a law enforcement officer, or to the person designated by a law enforcement agency, pursuant to Sections 5152.1 and 5250.1.
(17) If the patient gives his or her consent, information specifically pertaining to the existence of genetically handicapping conditions, as defined
in Section 125135 of the Health and Safety Code, may be released to qualified professional persons for purposes of genetic counseling for blood relatives upon request of the blood relative. For purposes of this paragraph, “qualified professional persons” means those persons with the qualifications necessary to carry out the genetic counseling duties under this paragraph as determined by the genetic disease unit established in the State Department of Health Care Services under Section 125000 of the Health and Safety Code. If the patient does not respond or cannot respond to a request for permission to release information pursuant to this
paragraph after reasonable attempts have been made over a two-week period to get a response, the information may be released upon request of the blood relative.
(18) When the patient, in the opinion of his or her psychotherapist, presents a serious danger of violence to a reasonably foreseeable victim or victims, then any of the information or records specified in this section may be released to that person or persons and to law enforcement agencies and county child welfare agencies as the psychotherapist determines is needed for the protection of that person or persons. For purposes of this
paragraph, “psychotherapist” has the same meaning as provided in Section 1010 of the Evidence Code.
(19) (A) To the designated officer of an emergency response employee, and from that designated officer to an emergency response employee regarding possible exposure to HIV or AIDS, but only to the extent necessary to comply with the federal Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(B) For purposes of this paragraph, “designated officer” and “emergency response employee” have the same meaning as these terms are used in the federal Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(C) The designated officer shall be subject to the confidentiality requirements specified in Section 120980, and may be personally liable for unauthorized release of any identifying information about the HIV results. Further, the designated officer shall inform the exposed emergency response employee that the employee is also subject to the confidentiality requirements specified in Section 120980, and may be personally liable for unauthorized release of any identifying information about the HIV test results.
(20) (A) To a law enforcement officer who personally lodges with a facility, as defined in subparagraph (B), a warrant of arrest or an abstract of a warrant showing that the person sought is wanted for a serious felony, as defined in Section 1192.7 of the Penal Code, or a violent felony, as defined in Section 667.5
of the Penal Code. The information sought and released shall be limited to whether or not the person named in the arrest warrant is presently confined in the facility. This subparagraph shall be implemented with minimum disruption to health facility operations and patients, in accordance with Section 5212. If the law enforcement officer is informed that the person named in the warrant is confined in the facility, the officer may not enter the facility to arrest the person without obtaining a valid search warrant or the permission of staff of the facility.
(B) For purposes of subparagraph (A), a facility means all of the following:
(i) A state hospital, as defined in Section 4001.
(ii) A general acute care hospital, as
defined in subdivision (a) of Section 1250 of the Health and Safety Code, solely with regard to information pertaining to a person with mental illness subject to this section.
(iii) An acute psychiatric hospital, as defined in subdivision (b) of Section 1250 of the Health and Safety Code.
(iv) A psychiatric health facility, as described in Section 1250.2 of the Health and Safety Code.
(v) A mental health rehabilitation center, as described in Section 5675.
(vi) A skilled nursing facility with a special treatment program for individuals with mental illness, as described in Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the California Code of
Regulations.
(21) Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to Section 15610.55, 15753.5, or 15761. The information and records sought to be disclosed shall be relevant to the prevention, identification, management, or treatment of an abused elder or dependent adult pursuant to Chapter 13 (commencing with Section 15750) of Part 3 of Division 9.
(22) (A) When an employee is served with a notice of adverse action, as defined in Section 19570 of the Government Code, all of the following information and records may be released:
(i) All information and records that the appointing authority relied upon in issuing the notice of adverse action.
(ii) All other information and records that are relevant to the adverse action, or that would constitute relevant evidence as defined in Section 210 of the Evidence Code.
(iii) The information described in
clauses (i) and (ii) may be released only if both of the following conditions are met:
(I) The appointing authority has provided written notice to the consumer and the consumer’s legal representative or, if the consumer has no legal representative or if the legal representative is a state agency, to the clients’ rights advocate, and the consumer, the consumer’s legal representative, or the clients’ rights advocate has not objected in writing to the appointing authority within five business days of receipt of the notice, or the appointing authority, upon review of the objection has determined that the circumstances on which the adverse action is based are egregious or threaten the health, safety, or life of the consumer or other consumers and without the information the adverse action could not be taken.
(II) The appointing authority, the person against whom the adverse action has been taken, and the person’s representative, if any, have entered into a stipulation that does all of the following:
(ia) Prohibits the parties from disclosing or using the information or records for any purpose other than the proceedings for which the information or records were requested or provided.
(ib) Requires the employee and the employee’s legal representative to return to the appointing authority all records provided to them under this paragraph, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within
10 days of the date that the adverse action becomes final except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representative because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(ic) Requires the parties to submit the stipulation to the administrative tribunal with jurisdiction over the adverse action at the earliest possible opportunity.
(B) For the purposes of this paragraph, the State Personnel Board may, prior to any appeal from adverse action being filed with it, issue a protective order, upon application by the appointing authority, for the limited purpose of prohibiting the parties from disclosing or using information or records for
any purpose other than the proceeding for which the information or records were requested or provided, and to require the employee or the employee’s legal representative to return to the appointing authority all records provided to them under this paragraph, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representatives because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(C) Individual identifiers, including, but not limited to, names, social
security numbers, and hospital numbers, that are not necessary for the prosecution or defense of the adverse action, shall not be disclosed.
(D) All records, documents, or other materials containing confidential information protected by this section that have been submitted or otherwise disclosed to the administrative agency or other person as a component of an appeal from an adverse action shall, upon proper motion by the appointing authority to the administrative tribunal, be placed under administrative seal and shall not, thereafter, be subject to disclosure to any person or entity except upon the issuance of an order of a court of competent jurisdiction.
(E) For purposes of this paragraph, an adverse action becomes final when the employee fails to answer within the
time specified in Section 19575 of the Government Code, or, after filing an answer, withdraws the appeal, or, upon exhaustion of the administrative appeal or of the judicial review remedies as otherwise provided by law.
(23) To the person appointed as the developmental services decisionmaker for a minor, dependent, or ward pursuant to Section 319, 361, or 726.
(24) During the provision of emergency services and care, as defined in Section 1317.1 of the Health and Safety Code, the communication of patient information between a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, emergency medical personnel at the scene of an emergency or in an
emergency medical transport vehicle, or other professional person or emergency medical personnel at a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.
(25) To a business associate or for health care operations purposes, in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations.
(b) The amendment of paragraph (4) of subdivision (a) enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.
(c) This section is not limited by Section 5150.05 or 5332.
SEC. 4.
(a) Section 2.5 of this bill incorporates amendments to Section 123110 of the Health and Safety Code proposed by both this bill and Senate Bill 575. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2018, (2) each bill amends Section 123110 of the Health and Safety Code, and (3) this bill is enacted after Senate Bill 575, in which case Section 2 of this bill shall not become operative.(b) Section 3.5 of this bill incorporates amendments to 5328 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 1119. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2018, (2) each bill amends Section 5328 of the Welfare and Institutions Code,
and (3) this bill is enacted after Assembly Bill 1119, in which case Section 3 of this bill shall not become operative.
