New Year, New Laws Affecting Privacy & Consent, Abortion, and PA’s & Nurses

Happy New Year and welcome back to our newsletter, where we continue our exploration of legislative changes going into effect this year. With the new year, we will be writing to tell you about a host of new labor and employment laws across all industries, and labor and employment laws more specific to the healthcare industry. In our last newsletter, we covered one of the biggest headliners, SB 525, the minimum-wage hike for healthcare workers. To read that newsletter or others focused on healthcare law and employment law updates, you may access them on our website by clicking here. Or you can always give us a call.

Now let’s focus on what’s new in the realm of healthcare law in 2024…

Privacy & Consent Laws

The abortion and privacy emphases met in AB 352—a patient-privacy measure regarding, you guessed it, abortion.

Generally, the Confidentiality of Medical Information Act (CMIA) already prohibited a provider from disclosing patient information without authorization. The CMIA requires everyone who stores medical information to protect its confidentiality. As to abortion, it prohibits doctors from responding to subpoenas or law enforcement requests if the purpose is to enforce another state’s laws restricting abortion. Violating the CMIA can be a misdemeanor.

AB 352 now requires, by July 1, 2024, companies who maintain the records for the providers or facilities to enhance security features, limit access, and segregate records dealing with abortion, contraception, and transgender matters. It also expands the prohibition on disclosing abortion-related matters. California now bans providers from disclosing such information to other states’ agencies, and—where possible—federal agencies. But doctors won’t face liability for such disclosures until 2026, if they are trying “in good faith” to avoid disclosing the information. As for the forthcoming Data Exchange requirements for hospitals and skilled-nursing facilities, abortion-related information is excluded from the otherwise-required exchanges of information.

As to consent laws, AB 816 expanded minors’ abilities to receive buprenorphine without parental consent. Previously, those 12 and older could be treated for alcohol and drug problems without parental consent—but not as to narcotic-replacement treatments. This law expands the minors’ consent as to the synthetic opioid to 16-year-olds in a physician’s office or healthcare facility. It also allows them to now consent—again, without parental consent—to other opioid-replacement treatments allowed by federal laws, if they are in a narcotic-treatment program.

Same drug, different law: AB 1731 exempts physicians from consulting the CURES database if furnishing buprenorphine in a hospital’s ED.

Abortion and “Sensitive Services”

The Department of Consumer Affairs (DCA) oversees the state’s various licensing boards. Existing law prohibits the DCA from denying a new license or disciplining an existing license because another state disciplined a provider for providing an abortion. AB 1707 expands that protection from discipline to include providing “sensitive services”—if such services are legal to receive in California. “Sensitive services” are defined in the Civil Code as: “mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender affirming care, and intimate partner violence.” Thus, if a provider is disciplined by another state’s board for providing a sensitive service, if that service is legal in California, the DCA cannot act against or deny the provider’s license. Moreover, a facility’s Medical Staff cannot deny or suspend privileges for the same reasons.

SB 345 was the most extensive law on abortion, covering a wide array of related issues. Like AB 1707, SB 345 protects against license discipline for out-of-state “sensitive services.” And, like AB 352, it expands the CMIA confidentiality rules: “A person or business shall not collect, use, disclose, or retain the personal information of a person who is physically located at, or within a precise geolocation of, a family planning center, except only as necessary to perform the services or provide the goods requested by the person. A person or business shall not sell or share this personal information.” But it does not apply the restriction to providers, just to related businesses. And, like AB 816, it expands minors’ rights. In this case, unemancipated minors can get abortions without parental consent.

The law also amends Penal Code Section 187’s murder exemption for abortion providers to also include an “act or omission by the person pregnant with the fetus or was solicited, aided, abetted, or consented to by the person pregnant with the fetus.” Along with numerous other protections for out-of-state disputes (generally involving abortion) this bill also re-wrote many code sections, replacing “unborn child” and “unborn person” with “fetus.”

Next, SB 385 expanded Physician Assistants’ abilities to perform abortions using aspiration techniques. It creates training requirements and allows the PA to perform the abortion outside the presence of the supervising physician—who also received protection from license discipline and civil liability for evaluating the PA’s clinical competency.

PA’s and Nurses

Speaking of PA’s, AB 1070 expanded the number of PA’s that a physician can now supervise—from 4 to 8. The Physician Assistant Practice Act authorizes PA’s to perform supervised services pursuant to a practice agreement and under the supervision of a licensed physician and surgeon. AB 1070 expands the number of PA’s that can be supervised if they are providing in-home health evaluations for annual wellness visits and not providing patient treatment or prescriptions.

SB 667 provided an expansion of services for nurse-midwives beyond their traditional services, so long as agreed to by a physician or surgeon. This includes 1) admitting and discharging patients from hospitals, if pursuant to the hospital’s medical staff bylaws; 2) expanding nurses’ ability to provide prescription drugs; 3) expanding lab-testing abilities; 4) allowing nurse-midwives to certify disability for unemployment relating to pregnancy, childbirth, or postpartum conditions.

Next up on the healthcare news front, we will cover a wide array of additional, new healthcare laws. As a teaser: cannabis in hospitals, multi-disciplinary partnerships, and telehealth, to name a few! In the meantime, stay tuned for our next newsletter where we will cover employment law updates on paid sick leave, non-competes, and workplace violence.

If you need more information on the new laws discussed above, please reach out, we’d be happy to do an in-depth review for you. Also, if you know of others that would like our updates, they may subscribe here. If you do not want to receive these healthcare law and employment law updates, simply click the “Unsubscribe” link at the bottom of this newsletter.

Best,

Keith W. Carlson and Nima A. Jalali