Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a)
Patients may authorize the release of their health care information by
completing the CDCR 7385, Authorization for Release of Protected Health
Information, to allow a family member or friend to request and receive an
update when there is a significant change in the patient's health care
condition. A CDCR 7385 and instructions can be obtained in the medical clinics
and in health care settings. A CDCR 7385 will remain in force until its
expiration date or until it is updated, changed, or revoked by written request
of the patient at any time.
(b) A
patient's (or their personal representative's) authorization is considered
valid if it contains at least the following elements:
(1) A description of the information to be
used or disclosed that identifies the information in specific terms.
(2) The name or other specific identification
of the persons(s) authorized to make the requested use or disclosure.
(3) The name or other specific identification
of the person(s) to whom the California Department of Corrections and
Rehabilitation (CDCR) may make the requested use or disclosure.
(4) A description of each purpose of the
requested use or disclosure and the specific uses and limitations on the use of
the health information by the persons or entities authorized to receive it. The
statement "at the request of the individual" is a sufficient description of the
purpose when a patient initiates the authorization and does not, or elects not
to, provide a statement of the purpose.
(5) An expiration date or an expiration event
(e.g., conclusion of litigation, completion of surgery) that relates to the
patient or the purpose of the use or disclosure after which disclosure is no
longer authorized.
(6) A signature
which serves no other purpose than to execute the document and date. If the
authorization is signed by a personal representative of the patient, a
description of such representative's authority to act for the patient must also
be provided.
(7) A statement that
the patient has the right to revoke the authorization in writing and a
description of how the individual may revoke the authorization.
(8) A statement that CDCR may not condition
treatment on whether the patient signs the authorization.
(9) A statement concerning the potential for
the information disclosed to be subject to re-disclosure by the recipient and
no longer protected by federal or state law.
(10) A statement advising the patient of
their right to receive a copy of the authorization.
(11) The authorization is in writing in at
least 14 point type and clearly separate from any other language present in the
same document.
(c) Other
Release of Information authorization forms may be accepted if they conform to
all of the requirements as specified in subsection (b).
(d) An authorization is considered defective
and invalid if any material information in the authorization is known to be
false by CDCR, or if any of the following defects exist:
(1) The expiration date or expiration event
has passed.
(2) The authorization
has not been filled out completely or lacks a required element as specified in
subsection (b).
(3) The
authorization is known to have been revoked.
(A) A patient may revoke an authorization at
any time in writing. No such revocation shall apply to information already
released while the authorization was valid and in effect.
1. Exception: Alcohol and drug treatment
participants may verbally revoke authorization to disclose information obtained
from alcohol and drug treatment programs. Verbal authorizations and revocations
must be documented and maintained in the patient's health
record.
(e) Special authorization is required for
Human Immunodeficiency Virus (HIV) test results. A valid written authorization
to disclose HIV test results shall be obtained before making such a disclosure.
Written authorization is required for each separate disclosure of the test
results. A general authorization by a patient to release medical information is
not sufficient to release HIV test results; the authorization form must
specifically indicate that HIV test results may be released.
(1) HIV test results may be disclosed to the
following persons without written authorization:
(A) The patient's legal representative, or to
any person authorized to consent to the test.
(B) The patient's health care
provider.
(C) The Warden or
designee pursuant to California Health & Safety Code section
121070.
(D) As otherwise permitted
or required by law; for example, to certain individuals as a result of
occupational exposure. Legal counsel shall be consulted related to such
disclosures.
(f) Information about a patient may not be
disclosed pursuant to a written authorization without verifying the identity of
the person receiving the information.
(g) A CDCR 7385 from the patient, a court
order, or a search warrant specifically requesting the information is required
for disclosure of:
(1) Psychotherapy
notes.
(2) Substance abuse or
alcohol treatment records.
(3)
Substance abuse treatment program records provided by a contracted
service.
(4) Genetic
testing.
(5) Communicable
diseases.
(6) Mental health
records.
(A) If the patient's written request
is to review their mental health records, authorization of the Chief of Mental
Health or attending mental health clinician shall be obtained.
(B) The Chief of Mental Health or attending
mental health clinician may deny a request to review mental health records if
there is a substantial risk of significant adverse or detrimental consequences
to the patient in seeing or receiving a copy of the mental health records
requested by the patient.
(C) If
the provider grants access to the mental health records in whole or in part,
the patient shall be notified of the acceptance of the request and provided the
records within 15 calendar days.
(D) If the provider denies access to the
mental health record, the patient shall be informed of the denial within 30
calendar days and will only be denied access to the information for which the
provider has a basis to deny access. The denial must contain:
1. The basis of the denial.
2. A description of how the patient may
submit a complaint.
(E)
Health Records staff shall obtain a written statement from the attending
clinician to be added to the patient's health record explaining the reason for
denial. The statement shall:
1. Explain why
access to this information is harmful to the patient or to the
patient-therapist relationship.
2.
State how access is to be granted, e.g., to a licensed mental health clinician
or to a social worker selected by the patient.
(F) Health care staff shall notify the
patient that access will be granted to a licensed mental health clinician or to
a social worker of their choice.
(G) The patient shall notify Health Records
staff of the appropriate person to access their information.
1. If the request is for records that are
needed to support an appeal regarding eligibility for a public benefit program
(e.g., Medi-Cal program, Social Security Disability Insurance benefits, or
Supplemental Security Income/State Supplementary Program for the Aged, Blind
and Disabled benefits), the following applies:
a. The patient or patient's representative
shall be entitled to one copy, at no charge, of the relevant portion of the
patient's records, upon presenting to the health care provider a written
request, and proof that the records are needed to support an appeal. These
copies shall be transmitted within 30 calendar days after receiving the written
request.
b. This process 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.
1. New
section filed 7-1-2019 as an emergency; operative 7-1-2019 (Register 2019, No.
27). Pursuant to Penal Code section
5058.3, a
Certificate of Compliance must be transmitted to OAL by 12-9-2019 or emergency
language will be repealed by operation of law on the following
day.
2. New section refiled 12-5-2019 as an emergency; operative
12-10-2019 (Register 2019, No. 49). Pursuant to Penal Code section
5058.3, a
Certificate of Compliance must be transmitted to OAL by 3-9-2020 or emergency
language will be repealed by operation of law on the following
day.
3. New section refiled 3-9-2020 as an emergency; operative
3-10-2020 (Register 2020, No. 11). A Certificate of Compliance must be
transmitted to OAL by 6-8-2020 or emergency language will be repealed by
operation of law on the following day.
4. Certificate of Compliance
as to 3-9-2020 order transmitted to OAL 6-8-2020 and filed 7-20-2020 (Register
2020, No. 30).
Note: Authority cited: Section
5058, Penal
Code. Reference: Section
5054, Penal
Code; Plata v. Newsom (No. C01-1351 JST), U.S. District Court, Northern
District of California; Clark v. California (No. C96-1486 CRB), U.S. District
Court, Northern District of California; and Armstrong v. Newsom (No. C94-2307
CW), U.S. District Court, Northern District of California.
