There have been many inquiries about legal authority for the Board of Parole Hearings (BPH) to access the medical records of incarcerated people for parole consideration purposes.
In short, all those asking if the Board can access medical and mental health treatment records for their parole suitability hearing—the answer is, Yes. Is it legal?…. that can still be debated given that the Parole Hearing transcripts “themselves” are Public Record and thus [in our opinion] indirectly violates the Confidential Medical records laws.
The main short term take away: if your loved one is seeing a clinical psychologist, psychiatrist or even a Medical Doctor within CDCR (and/or their Mental Health division) then they should know to “be careful” what is disclosed to the Doctor. The Doctor’s NOTE will not be Confidential and will be used at the Parole Hearing against them. These Doctors’ notes usually come in as “quotes” from the medical record during the Comprehensive Risk Assessment (CRA) file review by the BPH psychologist, who then writes their report for the Board (a.k.a. Psychological Report).
BELOW is a summary of why BPH thinks that they are allowed to violate the inmates right by reviewing the “confidential” private Medical Records.
BPH’s Chief Counsel’s legal position is that People (inmates) appearing before the board do not have a right to keep their medical records private from the Board, as the Board must review all relevant and reliable evidence when making parole decisions.
To the extent people appearing before the Board asserts a right to privacy of medical information, the board’s authority to access the medical records of incarcerated people for purposes of parole consideration is permitted by both the Health Information Portability and Accountability Act (HIPAA) and California law. In fact, California law requires that an incarcerated person’s records be made available for the board to decide when a person can be safely allowed to return to society, and this exception obviates the need for a signed disclosure under HIPAA. The board may access medical records to satisfy its regulatory and statutory mandates. California Code of Regulations, title 15, sections 2281 and 2402, require the board to consider all relevant and reliable information for the board to meet its statutory obligations under Penal Code sections 3041, 4801, and 5075.1.
Medical records may contain relevant and reliable information about an individual’s suitability for parole. For example, under the elderly parole program ordered by the three-judge panel in Plata/Coleman v. Newsom and the separate elderly parole program in Penal Code section 3055, the board must consider an elderly offender’s diminished physical capacity. The medical records are a critical source for this information.
Similarly, when applying the youth offender factors required by Penal Code sections 3051 and 4801, subdivision (c), the board must look for subsequent growth and increased maturity of an individual, evidence of which is often found in the treatment and programming records contained in a medical file. Further, programming information for some people is kept in their medical file, as is evidence of mental state, conditions of treatment or control, and further information that bears on the person’s suitability for release. (Cal. Code Regs., tit. 15, §§ 2281, subd. (b); 2402, subd. (b).) Since disclosure of medical records is required under these legal mandates, HIPAA is satisfied.
When considering “the purpose for which the information is sought” — which here is to determine whether an incarcerated person would pose an unreasonable risk to public safety in the free community — the scope is not limited in the request because the board must consider all relevant and reliable information when making such a parole decision.
If an entity other than the board was to limit its access to records, and thereby make decisions as to what information is relevant to parole suitability, the entity would violate the board’s purpose and authority. No agency other than the board determines what information may be relevant to making parole decisions.
Mental health treatment records are accessible to the BPH. BPH’s Chief Counsel’s summarized some basic reasons (below) for the board’s access to an inmate’s medical/mental health records:
Elderly parole must give special consideration to the diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence (PC 3055),
Programming records for those in mental health treatment programs (where compliance with treatment is often considered programming),
Information relevant to future risk due to illness/impairment,
Information related to mental state, conditions of treatment and control and further information that bears on the person’s institutional behavior and suitability for release,
Information on substance abuse based on the person’s history Information needed to ascertain reasonable accommodations under the Americans with Disabilities Act.
BOTTOM LINE: BPH’s Chief Counsel’s legal position is that an incarcerated person does not have a reasonable expectation of privacy regarding their medical records when the records are needed for parole consideration purposes. Even if there was some privacy expectation, the board has the explicit authority to utilize an incarcerated person’s medical records for purposes of parole consideration under the Health Information Portability and Accountability Act HIPAA and Confidentiality of Medical Information Act (CMIA).