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Possible compromise seen on proposed Calif. privacy changes


By Joseph Conn
Posted: July 6, 2012 - 2:45 pm ET
Tags:

Consumer and privacy rights organizations and healthcare and business groups that had squared off over an amendment to a California healthcare privacy law may be closer to a compromise this week following a state Senate committee hearing.

Initially, eight groups said the proposed change to the law would "immunize healthcare corporations" from civil suits for the release of medical records without patient permission, according to a news release from one of the groups, the Consumer Federation of California.

But Richard Holober, executive director of the federation, said in a telephone interview that he was satisfied a compromise agreement reached Tuesday and approved by the Senate Judiciary committee was sufficient for his organization to remove its objection and take a "neutral" position on the bill.

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California's Confidentiality of Medical Information Act, in addition to its other penalties, provides individuals with the right to sue "any person or entity who has negligently released confidential information or records concerning him or her" and to seek "nominal damages" of $1,000, regardless of whether they suffered actual damages.

The proposed amendment, sponsored by Berkeley Assemblywoman Nancy Skinner, would have given covered entities several "affirmative defenses," including if the organization that committed the breach could show a court it had taken appropriate steps to avoid future breaches.

A number of business and healthcare groups, including San Francisco-based health information technology company McKesson Corp., supported the Skinner bill.

The industry groups "believe that the CMIA should be amended to remove potentially bankrupting liability for inadvertent disclosures that cause no harm to individuals," McKesson spokesperson Kris Fortner said in an e-mailed statement. McKesson said the California Hospital Association, the California Association of Physicians Groups, California Retailers Association, the California Pharmacists Association, the California Association of Health Plans, the California Healthcare Institute, the California Chamber of Commerce, the National Association of Chain Drug Stores, and the Center for Democracy and Technology also supported the amendment.

Holober said the tweak to the amendment worked out Tuesday restores judicial discretion in levying fines even in cases where an entity meets all of the statutory affirmative defenses.

"We had been in favor of letting the judge have discretion," Holober said. "That was not the direction this bill wanted to go— it said there would be no discretion. The amendments create some limits on that. … It would allow the court to not be a rubber stamp."

Before becoming law, the Skinner bill would have to pass the full Senate and be reapproved as amended in the Assembly before the legislature adjourns in September.

Holober said he couldn't speak for the other organizations on their position on the bill after this week's amendment.


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