BILL NUMBER: SB 1819 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Ashburn
FEBRUARY 20, 2004
An act to amend Sections 4514 and 5328 of the Welfare and
Institutions Code, relating to confidential information.
LEGISLATIVE COUNSEL'S DIGEST
SB 1819, as introduced, Ashburn. Mental health and developmental
services: confidential information.
Existing law makes all information and records obtained in the
course of providing intake assessment and services under statutes
relating to services for persons with developmental disabilities and
persons with mental illness, and permits disclosure only under
prescribed conditions, including, but not limited to, the courts as
necessary to the administration of justice.
This bill would, for records and information of a person with
developmental disabilities, include within the authorized conditions
of disclosure, to a state civil service employee against whom an
adverse action has been filed as necessary to defend against the
action.
The bill would also make technical corrections.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4514 of the Welfare and Institutions Code is
amended to read:
4514. All information and records obtained in the course of
providing intake, assessment, and services under Division 4.1
(commencing with Section 4400), Division 4.5 (commencing with Section
4500), Division 6 (commencing with Section 6000), or Division 7
(commencing with Section 7100) to persons with developmental
disabilities 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,
whether employed by a regional center or state developmental center,
or not, in the provision of intake, assessment, and services or
appropriate referrals. The consent of the person with a
developmental disability, or his or her guardian or conservator,
shall be obtained before information or records may be disclosed by
regional center or state developmental center personnel to a
professional not employed by the regional center or state
developmental center, or a program not vendored by a regional center
or state developmental center.
(b) When the person with a developmental disability, who has the
capacity to give informed consent, designates individuals to whom
information or records may be released, except that nothing in this
article chapter shall be construed to
compel a physician, psychologist, social worker, marriage and family
therapist, nurse, attorney, or other professional to reveal
information that has been given to him or her in confidence by a
family member of the person unless a valid release has been executed
by that family member.
(c) To the extent necessary for a claim, or for a claim or
application to be made on behalf of a person with a developmental
disability for aid, insurance, government benefit, or medical
assistance to which he or she may be entitled.
(d) If the person with a developmental disability is a minor,
ward, or conservatee, and his or her parent, guardian, conservator,
or limited conservator with access to confidential records,
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this article
chapter shall be construed to compel a physician,
psychologist, social worker, marriage and family therapist, nurse,
attorney, or other professional to reveal information that has been
given to him or her in confidence by a family member of the person
unless a valid release has been executed by that family member.
(e) For research, provided that 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. These 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 with
developmental disabilities who have received services from ____ (fill
in the facility, agency or person), I, ____, agree to obtain the
prior informed consent of 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, or the person's parent, guardian, or
conservator, and I further agree not to divulge any information
obtained in the course of the research to unauthorized persons, and
not to publish or otherwise make public any information regarding
persons who have received services so those persons who received
services are 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.
______________________________"
Signed
(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 Rules Committee
Committee on Rules or the Assembly Rules Committee
Committee on Rules for the purposes of
legislative investigation authorized by the committee.
(i) To the courts and designated parties as part of a regional
center report or assessment in compliance with a statutory or
regulatory requirement, including, but not limited to, Section 1827.5
of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code,
Section 6502 of the Welfare and Institutions Code, and Section 56557
of Title 17 of the California Code of Regulations.
(j) To the attorney for the person with a developmental disability
in any and all proceedings upon presentation of a release of
information signed by the person, except that when the person lacks
the capacity to give informed consent, the regional center or state
developmental center director or designee, upon satisfying himself or
herself of the identity of the attorney, and of the fact that the
attorney represents the person, shall release all information and
records relating to the person except that nothing in this article
shall be construed to compel a physician, psychologist, social
worker, marriage and family therapist, nurse, attorney, or other
professional to reveal information that has been given to him or her
in confidence by a family member of the person unless a valid release
has been executed by that family member.
(k) Upon written consent by a person with a developmental
disability previously or presently receiving services from a regional
center or state developmental center, the director of the regional
center or state developmental center, or his or her designee, may
release any information, except information that has been given in
confidence by members of the family of the person with developmental
disabilities, requested by a probation officer charged with the
evaluation of the person after his or her conviction of a crime if
the regional center or state developmental center director or
designee determines that the information is relevant to the
evaluation. The consent 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) 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 prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) When a person with a developmental disability dies from any
cause, natural or otherwise, while hospitalized in a state
developmental center, the State Department of Developmental Services,
the physician in charge of the client, or the professional in charge
of the facility or his or her designee, shall release information
and records to the coroner. The State Department of Developmental
Services, the physician in charge of the client, or the professional
in charge of the facility or his or her designee, shall not release
any notes, summaries, transcripts, tapes, or records of conversations
between the resident and health professional personnel of the
hospital relating to the personal life of the resident that is not
related to the diagnosis and treatment of the resident's physical
condition. Any information released to the coroner pursuant to this
section shall remain confidential and shall be sealed and shall not
be made part of the public record.
(n) To authorized licensing personnel who are employed by, or who
are authorized representatives of, the State Department of Health
Services, and who are licensed or registered health professionals,
and to authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
health facilities and community care facilities, and to ensure that
the standards of care and services provided in these facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facility is subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 2
(commencing with Section 1250) and Chapter 3 (commencing with Section
1500) of Division 2 of the Health and Safety Code, or a criminal,
civil, or administrative proceeding in relation thereto. The
confidential information may be used by the State Department of
Health Services or the State Department of Social Services in a
criminal, civil, or administrative proceeding. The confidential
information shall be available only to the judge or hearing officer
and to the parties to the case. Names which are confidential shall
be listed in attachments separate to the general pleadings. The
confidential information shall be sealed after the conclusion of the
criminal, civil, or administrative hearings, and shall not
subsequently be released except in accordance with this subdivision.
If the confidential information does not result in a criminal,
civil, or administrative proceeding, it shall be sealed after the
State Department of Health Services or the State Department of Social
Services decides that no further action will be taken in the matter
of suspected licensing violations. Except as otherwise provided in
this subdivision, confidential information in the possession of the
State Department of Health Services or the State Department of Social
Services shall not contain the name of the person with a
developmental disability.
(o) To any board which licenses and certifies professionals in the
fields of mental health and developmental disabilities pursuant to
state law, when the Director of Developmental Services has reasonable
cause to believe that there has occurred a violation of any
provision of law subject to the jurisdiction of a board and the
records are relevant to the violation. The information shall be
sealed after a decision is reached in the matter of the suspected
violation, and shall not subsequently be released except in
accordance with this subdivision. Confidential information in the
possession of the board shall not contain the name of the person with
a developmental disability.
(p) To governmental law enforcement agencies by the director of a
regional center or state developmental center, or his or her
designee, when (1) the person with a developmental disability has
been reported lost or missing or (2) there is probable cause to
believe that a person with a developmental disability has committed,
or has been the victim of, murder, manslaughter, mayhem, aggravated
mayhem, kidnapping, robbery, carjacking, assault with the intent to
commit a felony, arson, extortion, rape, forcible sodomy, forcible
oral copulation, assault or battery, or unlawful possession of a
weapon, as provided in Section 12020 of the Penal Code.
This subdivision shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
treatment unless relevant to the crime involved.
This subdivision shall not be construed as an exception to, or in
any other way affecting, the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code, or
Chapter 11 (commencing with Section 15600) and Chapter 13 (commencing
with Section 15750) of Part 3 of Division 9.
(q) To the Youth Authority and Adult Correctional Agency or any
component thereof, as necessary to the administration of justice.
(r) To an agency mandated to investigate a report of abuse filed
pursuant to either Section 11164 of the Penal Code or Section 15630
of the Welfare and Institutions Code for the purposes of either a
mandated or voluntary report or when those agencies request
information in the course of conducting their investigation.
(s) When a person with developmental disabilities, or the parent,
guardian, or conservator of a person with developmental disabilities
who lacks capacity to consent, fails to grant or deny a request by a
regional center or state developmental center to release information
or records relating to the person with developmental disabilities
within a reasonable period of time, the director of the regional or
developmental center, or his or her designee, may release information
or records on behalf of that person provided both of the following
conditions are met:
(1) Release of the information or records is deemed necessary to
protect the person's health, safety, or welfare.
(2) The person, or the person's parent, guardian, or conservator,
has been advised annually in writing of the policy of the regional
center or state developmental center for release of confidential
client information or records when the person with developmental
disabilities, or the person's parent, guardian, or conservator, fails
to respond to a request for release of the information or records
within a reasonable period of time. A statement of policy contained
in the client's individual program plan shall be deemed to comply
with the notice requirement of this paragraph.
(t) (1) Regarding information and records relating to a person
with a developmental disability 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, only if either of the following
conditions has been met:
(i) The person against whom the adverse action has been taken, or
his or her representative, if any, has requested a qualified
protective order from the administrative tribunal.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
agreed to a qualified protective order and have presented it to the
administrative tribunal.
(2) Information and records disclosed pursuant to this subdivision
shall remain confidential for all other purposes as set forth in
this section, and shall be used solely for the purposes of the
administrative hearing and appeal of the proposed 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.
SEC. 2. 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, licensed
psychologist, social worker with a master's degree in social work,
or licensed marriage and family therapist, 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, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, 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 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, or conservatee,
and his or her parent, guardian, guardian ad litem, or conservator
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, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, 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 Mental Health 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 Committee on Senate Rules
Senate Committee on Rules or the Committee on Assembly
Rules 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, licensed psychologist, social worker
with a master's degree in social work, licensed marriage and family
therapist, 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) 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 prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(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
Sections Section 4070 and 5624
.
(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 mental 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 341.5
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 Services
under Section 309 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 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) To persons serving on an interagency case management
council established in compliance with Section 5606.6 to the extent
necessary to perform its duties. This council shall attempt to
obtain the consent of the client. If this consent is not given by
the client, the council shall justify in the client's chart why these
records are necessary for the work of the council.
(t) (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 Ryan
White Comprehensive AIDS Resources Emergency Act of 1990 (P.L.
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 Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 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.
(u)
(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 mentally disordered person 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 chronically mentally disordered patients, as described in
Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the
California Code of Regulations.
(v)
(u) Between persons who are trained and qualified to serve
on multidisciplinary personnel teams pursuant to Sections 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.
(w)
(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.
(x)
(w) This section shall not be limited by Section 5150.05 or
5332.
(x) (1) Regarding information and records relating to a person
with a developmental disability 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, only if either of the following
conditions has been met:
(i) The person against whom the adverse action has been taken, or
his or her representative, if any, has requested a qualified
protective order from the administrative tribunal.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
agreed to a qualified protective order and have presented it to the
administrative tribunal.
(2) Information and records disclosed pursuant to this subdivision
shall remain confidential for all other purposes as set forth in
this section, and shall be used solely for the purposes of the
administrative hearing and appeal of the proposed 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.
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