BILL ANALYSIS
SB 699
Page 1
Date of Hearing: February 21, 2006
ASSEMBLY COMMITTEE ON HEALTH
Wilma Chan, Chair
SB 699 (Soto) - As Amended: January 18, 2006
SENATE VOTE : 33-0
SUBJECT : AIDS: HIV reporting.
SUMMARY : Requires human immunodeficiency virus (HIV) cases to
be reported to the local health officer by name rather than by
code and requires local health officers to report HIV cases by
name to the Department of Health Services (DHS). Contains an
urgency clause to ensure that the provisions of this bill go
into immediate effect upon enactment. Specifically, this bill :
1)Requires health care providers and laboratories to report
cases of HIV infection to the local health officer using
patient names. Requires local health officers to report
unduplicated HIV cases by name to DHS.
2)Requires each county to make HIV tests available within its
jurisdiction on an anonymous, rather than confidential, basis,
as specified.
3)Requires DHS and local health officers to ensure continued
reasonable access to anonymous HIV testing through alternative
testing sites, as established under current law, and in
consultation with HIV planning groups and affected
stakeholders, including representatives of persons living with
HIV and health officers.
4)Raises the amount of a fine for negligent disclosure of an HIV
test result to any third party in a manner that identifies or
provides identifying characteristics of the person to whom the
test results apply, as specified, to $2,500. Raises the fine
for willful disclosure of an HIV test to any third party in a
manner that identifies or provides identifying
characteristics, as specified, to not less than $5,000 and not
more than $10,000 and adds the term "malicious" to describe
the type of disclosure. Raises the fine for disclosure
resulting in harm, as specified, to $25,000.
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5)Changes current law related to penalties for disclosure of the
content of a public health record relating to acquired
immunodeficiency syndrome (AIDS) to include HIV and increases
related fines consistent with #4) above and current law
related to disclosure of confidential HIV records.
6)Defines "confidential public health record or records" to mean
any paper or electronic record maintained by DHS or a local
health department or agency, or its agent, that includes data
or information in a manner that identifies personal
information, including, but not limited to, name, social
security number, address, employer, or other information that
may directly or indirectly lead to the identification of the
individual who is the subject of the record.
7)Adds HIV to current law that requires records of a research
related to AIDS to be confidential. Makes fines for
disclosure of the content of confidential research records
related to HIV or AIDS consistent with #4) above.
8)Requires DHS to promulgate emergency regulations to conform
the relevant provisions of the California Code of Regulations,
consistent with this bill, within one year of the effective
date.
9)Prohibits reported cases of HIV infection from being
disclosed, discoverable, or compelled to be produced in any
civil, criminal, administrative, or other proceeding.
10) Requires state and local health department employees and
contractors to be required to sign confidentiality agreements,
developed by DHS that include information related to the
penalties for a breach of confidentiality, and the procedures
for reporting a breach of confidentiality prior to accessing
confidential HIV-related public health records. Requires
those agreements to be reviewed annually by either DHS or the
appropriate local health department.
11) Prohibits any person from disclosing identifying
information reported pursuant #1 above to the federal
government, including, but not limited to, any agency,
employee, agent, contractor, or anyone else acting on behalf
of the federal government, except as permitted under current
law.
12) Requires any potential or actual breach of confidentiality
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of HIV-related public health records to be investigated by the
local health officer, in coordination with DHS, when
appropriate. Requires the local health officer to immediately
report any evidence of an actual breach of confidentiality of
HIV-related public health records at a city or county level to
DHS and the appropriate law enforcement agency. Requires DHS
to investigate any potential or actual breach of
confidentiality of HIV-related public health records at the
state level, and report any evidence of such a breach of
confidentiality to an appropriate law enforcement agency.
13) Requires any willful, negligent, or malicious disclosure of
cases of HIV infection reported to be subject to the penalties
prescribed in current law related to disclosure of health
records related to AIDS.
14) Prohibits anything in this bill from being construed to
limit other remedies and protections available under state or
federal law.
15) Adds "an agent" of state or local public health agencies to
current law that permits those agencies to disclose personally
identifying information in public health records related to
HIV to other public health agencies or corroborating medical
researchers, when the confidential information is necessary to
carry out the duties of the agency or researcher, as
specified.
16) Makes other technical, clarifying changes.
EXISTING LAW :
1)Requires each county, designated by DHS, to make the HIV test
available within its jurisdiction without charge, in an
accessible manner and on a confidential basis, through the use
of a coded system without linking of the individual identity
with the test request or results.
2)Requires that public health records relating to AIDS,
containing personally identifying information, that were
developed or acquired by state or local public health agencies
be confidential and prohibits the disclosure of those records,
except as otherwise provided for by law for public health
purposes or pursuant to a written authorization by the person
who is the subject of the record or by his or her guardian or
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conservator.
3)Permits state and local public health agencies to disclose
personally identifying information in public health records,
under certain circumstances, to other local, state, or federal
public health agencies or to corroborating medical
researchers, when the confidential information is necessary to
carry out the duties of the agency or researcher in the
investigation, control, or surveillance of disease, as
determined by the local public health agency.
4)Requires that any person who willfully or negligently
discloses HIV test results to any third party, in a manner
that identifies or provides identifying characteristics of the
person to whom the test results apply, except pursuant to a
written authorization be assessed a civil penalty of $1,000
(negligent) or $5,000 (willful) plus court costs. Requires
any person who willfully or negligently discloses HIV test
results that results in economic, bodily, or psychological
harm to the subject of the test, to be guilty of a
misdemeanor, punishable by imprisonment in the county jail for
a period not more than one year or a fine of not more than
$10,000 or both.
5)Requires that any person who willfully or maliciously
discloses the content of any confidential pubic health record
or any confidential research record relating to AIDS to any
third party, except as otherwise authorized by law, to be
subject to a fine of between $1,000 and $5,000 plus court
costs, as specified. Requires any person who maliciously
discloses the content of any confidential research record
relating to AIDS that results in harm, as specified, to be
guilty of a misdemeanor, punishable by imprisonment in the
county jail for up to one year or a fine of not more than
$10,000 or both.
FISCAL EFFECT : Unknown
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill will
replace the current code-based HIV reporting system with
names-based reporting, while preserving the option of
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anonymous HIV testing, because the Centers for Disease
Control and Prevention (CDC) has determined that the most
accurate method of HIV test data collection is by name. Under
existing federal statute, by October 2006 the number of living
HIV cases, rather than estimated living AIDS cases, will guide
the allocation of funds from the Ryan White Comprehensive AIDS
Resources Emergency (CARE) Act. These funds are largely used
to pay for medical care and drugs for low-income HIV/AIDS
patients who do not have health insurance, and may not be
eligible for Medi-Cal. The CDC will certify only those HIV
cases reported by name and will not use data from states using
a code based system.
2)BACKGROUND . California requires health care providers to
confidentially report more than 80 diseases and conditions to
local health officers, who then report to DHS. AIDS is a
reportable condition in California using patients' names, but
HIV is currently reported by code. California implemented
code-based reporting for HIV through regulation in 2002. The
code is a combination of letters from the person's surname,
birth date, gender and last four digits of his/her Social
Security number.
In December 2005, the director of the federal Department of
Health and Human Services wrote to Governor Schwarzenegger
that HIV data reported to and confirmed by CDC will be used to
allocate funding through the Ryan White CARE Act for HIV
treatment and care, that data from anything other than a
name-based system cannot be included in counts for federal
funding formulas, and that states that use systems that are
not name-based are at risk of losing federal dollars. There
are currently nine states that have not converted to
name-based reporting: Oregon, Montana, Hawaii, California,
Maryland, Massachusetts, Rhode Island, Delaware, and Vermont.
The District of Columbia also continues to use a code-based
system to report HIV cases.
3)IMPACT ON FEDERAL FUNDING . DHS indicates that the CDC 2004
surveillance report shows 14.1% of all persons living with
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AIDS in the United States are Californians. Based on
CDC-accepted data (CDC will not accept California code-based
HIV data as of October 2006), California will represent only
9.2% of the total persons living with HIV and AIDS. The total
U.S. Ryan White CARE Act Title II Funding for FY 2005 was
$1.043 billion. Of this total allocation, 14.1% is $147
million and 9.2% is $96 million. The difference, $51 million,
is the amount California would be projected to lose in Title
II funding.
Additionally, California's nine Eligible Metropolitan Areas
(Los Angeles County, San Francisco/Marin/San Mateo Counties,
San Diego County, Sacramento County, Sonoma County, Santa
Clara County, San Bernardino/Riverside Counties,
Alameda/Contra Costa Counties, and Orange County) would
sustain substantial losses if the state does not change to HIV
names-based reporting. In FY 2004, $307.5 million of Ryan
White CARE Act Title I funding was allocated. Based on the
federal changes, these areas could lose $15.1 million. To
illustrate, 14.1% of $307.5 million is $43.4 million and 9.2%
is $28.3 million. The difference, $15.1 million, is the
amount California's Eligible Metropolitan Areas would be
projected to lose from Title I funding unless California HIV
data is accepted by CDC.
4)DETERRANCE TO TESTING . There have been a number of studies
around HIV testing and potential deterrents to testing. A
Canadian study published in 2003 found that the introduction
of mandatory reporting of HIV infection did not provide a
distinct disincentive to testing. Additionally, a 1998 study
of six states published in the Journal of the American Medical
Association found that "?confidential HIV reporting by name
did not appear to affect use of HIV testing in publicly funded
counseling and testing programs? When we compared the total
number of (HIV) tests performed in the year before and the
year after HIV reporting, four states? had had (statistically
significant) increases in the number of tests performed." The
other two states had declines that were not statistically
significant. In two large, multi-state studies of high-risk
individuals' behavior in seeking or avoiding HIV testing
published in the Journal of Acquired Immune Deficiency
Syndromes in 2002, the authors found that only 2% of high-risk
respondents gave as a "main reason" for their not being tested
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that they were "worried (their) name (would be) reported to
government" in 1995-96. Less than 1% said the same in
1998-1999. The authors concluded that "denial of HIV risk
factors and fear of being HIV-positive were the principal
reasons for not being tested." A 2000 study of injection drug
users (IDUs), and high-risk heterosexuals in eight states
found that "name-based reporting policies were not associated
with avoiding HIV testing because of worry about reporting,
although they may have contributed to delays in testing among
some IDUs. Finally, a 2004 San Francisco-based study found
that "fear of reporting is an infrequently cited reason for
deterring or delaying testing." Additionally, the authors
found that respondents who believed that named-reporting
occurred in California were significantly more likely to have
been tested for HIV.
5)TECHNICAL AMENDMENTS . The author is requesting the Committee
approve the following technical amendments:
a. On page 8, at the end of line 29, insert "except as
required in Section 121022" to be consistent with new
language in this bill.
b. Replace the phrase "county health officer" with "local
health officer" throughout the bill to be consistent with
current law and to use proper terminology.
6)SUPPORT . The AIDS Healthcare Foundation writes that the
debate about HIV names reporting comes down to one central
objective: making sure that California does not lose real
dollars that are used to treat people with HIV/AIDS. The
Health Officers Association of California states that
implementing names-based HIV reporting is the right thing to
do because code-based data is simply not as accurate and
accurate data is fundamental in protecting public health and
fighting the spread of HIV. The Los Angeles County Board of
Supervisors contends that an HIV names-based reporting system
will provide critically important information on the current
and future trends of the HIV/AIDS epidemic and it will ensure
the ability of California to receive its fair share of federal
resources for HIV services. AIDS Project Los Angeles writes
that last year, numerous HIV/AIDS services organizations
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worked to gather community input and educate members of the
public on the need to implement a names-based HIV reporting
system and many were actively involved in developing language
for this bill. Bienstar Human Services, Inc. supports this
bill because it will improve the public health posture of the
HIV surveillance program and protect local, state, and
national investment in sound and comprehensive HIV/AIDS
prevention, care and treatment service systems. The County
Health Executives Association of California writes that if
California chooses to continue its program of a code-based
reporting system, the loss of federal funds for low-income
HIV/AIDS patients without health insurance would be
significant. The California Medical Association writes that
this bill will significantly improve surveillance of HIV cases
and protect precious federal funding while ensuring the
results of an HIV test will not be released illegally or
inappropriately. The California State Association of Counties
states that health providers face great challenges in
providing access to quality and any reductions in funding will
further strain an already strained system and place those
living with HIV/AIDS in jeopardy. East Valley Community
Health Center, Inc. and the Los Angeles County Commission on
HIV state that every day that this bill is delayed as it moves
toward the Governor's signature represents time during which
the state's health departments cannot collect HIV case reports
in the name-based format. Hoffmann-La Roche asserts that this
bill is needed in order to comport with CDC requirements and
protect the allocation of funds to California. The San
Francisco AIDS Foundations writes that it is confident that,
as a result of thoughtful deliberations regarding the language
of this bill, the long-held concerns of the foundation
regarding name reporting have been addressed.
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Healthcare Foundation (Sponsor)
Health Officers Association of California (Sponsor)
Los Angeles County Board of Supervisors (Sponsor)
AIDS Project Los Angeles
Bienstar Human Services, Inc.
California Medical Association
California State Association of Counties
County Health Executives Association of California
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East Valley Community Health Center, Inc.
Hoffmann-La Roche
Los Angeles County Commission on HIV
Orange County Board of Supervisors
San Francisco AIDS Foundation
Opposition
None on file.
Analysis Prepared by : Melanie Moreno / HEALTH / (916)
319-2097